IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 125 OF 1999
(Suva Magistrate’s Court Crim. Case No. 3665/97)

BETWEEN:

STATE
Appellant

AND:

SAIYAD IQBAL s/o Saiyad Kutty
Respondent

Mr. A. Khaiyum for Appellant
Respondent in person

JUDGMENT

There is before this Court an appeal against the acquittal of the respondent on 2 September 1999 on a charge of dangerous driving.

The particulars of offence are that the respondent on 4 December 1996 at Lami in the Central Division drove a motor vehicle on Queen’s Road, Naboro in a manner which was dangerous to the public having regards to all the circumstances of the case.

Chronology of events

The chronology of events which led to the acquittal are as hereunder.

On 24 June 1996 after the respondent had pleaded not guilty to the charge, the case was adjourned for hearing 13 months later on 29 July 1997. No reason is shown why such a long date was given . The reason should have been indicated on the record. On 29 July the prosecution wanted to send the file to ‘DPP for prosecution’ as a police officer was involved. An adjournment was sought and it was granted until 30 September 1997. It was again adjourned by the Court on its own initiative till 5 November 1997. Court was again in difficulties and hearing was adjourned to 5 December 1997. On that day the prosecution was ready to proceed but the respondent’s counsel was absent without notifying as the respondent told the Court that he had ‘no idea’ where his counsel was. Respondent was not present on 8 December 1997 when the hearing was adjourned to 23 January 1998

On that day prosecution arrived late thinking it was before another Magistrate but before their arrival the learned Magistrate acquitted the respondent under s.201(2)(b)(i) of the Criminal Procedure Code.

After appeal to High Court the case was remitted to Magistrate’s Court for hearing. On the mention date of 21 July 1999 the respondent was not present and it was ordered that Notice of Adjourned Hearing be served on him and the hearing was adjourned to 2 September 1997.

What transpired on 2 September is very relevant. The prosecution sought adjournment for a month and stated its reasons for doing so in the following words:

"We’ve the complainant and few other witnesses. The others we cannot locate them to subpoena them, because they have changed their addresses. Further this is 1996 case and under the 1997 Constitution he be served with full disclosures which we will do today. Ask for another adjournment for 1 month. Complainant is here, he has his rights".

After hearing the respondent that he has ‘been coming to Court since day 1' and that ‘prosecution have not been ready all along’ the learned Magistrate for the reasons he gave acquitted the respondent.

Grounds of appeal

It is against this acquittal that the State has appealed on the ground that the 

"learned Magistrate failed to exercise his discretion to adjourn judicially, by refusing the request of the Prosecution and accordingly acquitting the Respondent".

Determination of the ground of appeal

The respondent opposes the appeal stating, in effect that the prosecution had not been ready to proceed with the hearing. It is therefore frivolous, vexatious and abuse of the process of the Court.

I might mention at this stage that no facts were ever outlined to the learned Magistrate as the need did not arise. However, it transpired on appeal that a pedestrian was hit by the respondent’s vehicle and he suffered certain injuries for which he intends to make a civil claim for damages but was awaiting the outcome of this case.

It is a matter of great concern that this simple case of dangerous driving which first came before the Magistrate’s Court on 24 June 1996 had not seen finality. It is quite obvious from the Court Record of the proceedings in the Suva Magistrate’s Court that all parties are to be blamed for this state of affairs. As I stated earlier it is contrary to the requirements of the Criminal Procedure Code to adjourn the case for 13 months for hearing without giving any reason whatsoever. Serious consequences can flow from this long adjournment particularly to the victim in this case and also the likelihood of witnesses not being available 13 months later. The learned Magistrate did not take the trouble of ascertaining the position before adjourning. It behoves Magistrates to always give serious consideration to this aspect of the matter before granting long adjournments.

Other unsatisfactory features are respondent not appearing when required. It is not correct at all that he appeared from 'Day 1' onwards as alleged by him and which was accepted as the truth by the Magistrate. His counsel was also absent. Prosecution was ready to proceed but the Court was not ready to hear.

In view of the facts surrounding this case, it was very important for the Magistrate to have realized the prosecution’s difficulties in mustering all the witnesses at one time particularly when there have been so many adjournments of the case for various reasons. It is not as if you press the button and all the witnesses come running.

In a case where adjournment is sought, the Magistrate should exercise his discretion judicially. Although an appellate Court would be loathe to interfere in the exercise of discretion, it will do so in an appropriate case. There is a danger in laying down rigid principles as to the manner of court’s exercise of discretion to conduct the proceedings before it. The following passage from the judgment of Atkin L.J in Maxwell v Keun (1928) 1 K.B. 645 at 653 C.A. is apt:

"I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order, and it is, to my mind, its duty to do so."

The learned Magistrate had the power to adjourn the case when an application is made in that regard. The principle which should always guide him in exercising this power is that he should:

"Take care to observe the interests of fairness towards both sides. I emphasize both sides because the public has as interest in ensuring that properly brought prosecutions are properly conducted in court just as much as the defendant has an obvious interest in being allowed to present his case to the fullest advantage." (emphasis mine). (Mustill L.J. in R v. Swansea Justices and Davies, ex parte Director of Public Prosecutions 154 J.P. 709 at 712).

In this case the learned Magistrate improperly exercised his discretion and fell into an error while doing his best. He was one-sided in his approach and did not pay due regard to the history of the case and the circumstances leading to adjournments from time to time and failed to realize the difficulties which these adjournments caused the prosecution in getting together its witnesses.

In regard to adjournments it is pertinent to note the following passage from the judgment of Mustill L.J. in Swansea (supra) at 712-713:

"In the context of adjournments the justices will, in order to maintain this balance of fairness, wish to take into account all the circumstances including the practicability to one side or the other of putting forward his or her case adequately if the adjournment is refused. 

The court will also want to consider questions such as the passage of time, also whether this is the first or only one of many occasions on which an indulgence by way of adjournment has been requested, and also whether the party asking for the adjournment	 is in fault in not being in a position to proceed at once. I emphasize in relation to the latter consideration that it is only one of the factors to be taken into account. The power to refuse an adjournment is not a disciplinary power to be exercised for the purpose of punishing slackness on the part of one of the participants in the trial. The power to adjourn is there so that the court shall have the best opportunity of giving the fairest available hearing to the parties."

I find that no harm would have been done if the adjournment for a month as sought was granted and that would have prevented injustice to the complainant (the victim of the accident) and the case would have been disposed on merits.

It is possible that in this case the learned Magistrate was ‘fed up’ with difficulties of this kind happening in the past. In any case, in the words of Mustill L.J in Swansea (supra) at 713:

"although slackness and fault is only one element in the balancing exercise, it is only one element and the justices are there to try cases and not to punish the prosecuting authorities".

In the result, for the above reasons I find that the learned Magistrate erred in good faith in failing to exercise his discretion judicially and failing to follow the principles of natural justice and insisting on the case proceeding and then dismissing it and acquitting the respondent.

I therefore quash the acquittal and direct that the matter should be heard before another Magistrate according to law.

D. Pathik
Judge

At Suva
5 January 2000