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Kumar v The State [2004] FJHC 157; HAA0041J.2004S (5 October 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA041 OF 2004S

Between:

PREM SIDAHARTA KUMAR
Appellant

And:

THE STATE
Respondent

Hearing: 1st October 2004
Judgment: 5th October 2004

Counsel: Mr. A.K. Singh for Appellant
Mr. D. Toganivalu for State

JUDGMENT

This is an interlocutory appeal from the decision of the Suva Magistrates’ Court to transfer the trial of the Appellant to Kadavu, where the alleged offence occurred. The ruling was dated the 16th of March 2004. The grounds of appeal are:

(a) The learned magistrate erred in law and fact when he transferred the matter to the Kadavu Court without taking into account the interests of the accused.

(b) The learned Magistrate erred in law when he transferred the case.

The Appellant is charged as follows:

Statement of Offence

RAPE: Contrary to sections 149 and 150 of the Penal Code Cap 17.

Particulars of Offence

PREM SIDAHARTA KUMAR (f/n Prem Sushil Kumar) on the 13th day of November 2003 at Kadavu in the Central Division had unlawful carnal knowledge of ETHEL DUIKORO without her consent.

The matter was first called in Suva on the 26th of November 2003. The Appellant elected Magistrates’ Court trial and pleaded not guilty. He applied for bail. It was said, in the course of the application, that he is a school teacher, that all witnesses lived in Kadavu, the victim was a 15 year old student, and that the Appellant now resides in Suva. Bail was initially refused, but was granted on the 9th of November 2003.

On the 8th of March, after a hearing date had been set, counsel for the Appellant said:

“Discussed with Mr. D. Toganivalu to shift this matter from Kadavu to Suva. Accused’s wife was assaulted, they had to leave early to come to Suva. Our witnesses are here in Suva. Matter would be heard partly until disposed. Matter could be vacated on 8.3.2004 as he is temporarily employed."

Mr. Rabuku for the State said that the State was not concerned if the case was heard in Suva or Kadavu “as costs is involved.”

The learned Magistrate ruled on the matter on the 16th of March. He said that the application was to have the case heard in Suva. He held that it would be unfair to the prosecution’s civilian witnesses to bring them to Suva, which is a new and different environment. He further said that under section 62 of the Criminal Procedure Code a trial was to take place where the offence was committed. He said that arrangements could be made with the Kadavu Police to ensure the Appellant’s safety and he ordered that the trial take place in Kadavu.

When this appeal was first listed on the 11th of May 2004, Mr. Veretawatini appeared for Mr. A.K. Singh and sought an adjournment to July on the ground that Mr. Singh was out of the country. On the 15th of July 2004, the State sought leave to file an affidavit with a view to adducing further evidence. Counsel for the Appellant initially objected, saying he had authorities to back his objections. The hearing of the State’s application and the appeal was further adjourned to the 28th of July. On the 28th of July, counsel for the Appellant sent a medical certificate saying he was unwell. The hearing was further adjourned to the 20th of August. On that day counsel said he had not received the State’s motion and affidavit and wished to reply to it. He was given 21 days to reply. The hearing then proceeded on the 1st of October.

No affidavit was in fact filed by the Appellant to oppose the State’s application. It appears that counsel no longer objects to the form and contents of the affidavit.

The affidavit of Police Constable Jonacani Tukuca states that he is a police officer at the Kadavu Police Station. He undertakes to provide personnel to guard the accused and counsel at the Rest House at Vunisea, says that the case will be heard at Kavala Village and that the Crime Prevention Committee at Kavala Village will be notified of the accused’s security concerns.

Counsel for the State has not told me why this evidence was not put before the learned Magistrate. The affidavit is of course relevant, but no application to adduce evidence at the appeal will be allowed unless the court is satisfied that there were good reasons for the failure to disclose the evidence at the hearing proper. The application to adduce further evidence is refused and I disregard the affidavit.

In respect of the appeal itself, counsel for the Appellant said that the case should be transferred to Suva because the Appellant’s wife had been assaulted in Kadavu, he now lives in Suva, there are 13 witnesses, the trial will take at least 10 days, there are inadequate facilities in Kadavu and counsel would find it inconvenient to go to Kadavu for 2 weeks.

Counsel for the State said that the only issue raised by the Appellant in the lower court in support of his application for transfer, was security. He said that the police would provide adequate security.

Section 61 of the Criminal Procedure Code provides:

“Subject to the provisions of section 59 and to the powers of transfer conferred by section 70 every offence shall ordinarily be tried by a court within the local limits of whose jurisdiction it was committed, or within the local limits of whose jurisdiction the accused was apprehended or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence.”

Sections 68, 69 and 70 deal with the transfer of cases. Section 68(1) provides:

“If upon the hearing of any complaint it appears that the cause of complaint arose outside the limits of the jurisdiction of the court before which such complaint has been brought, the court may, on being satisfied that it has no jurisdiction, direct the case to be transferred to the court having jurisdiction where the cause of complaint arose.”

Section 70 provides:

“(1) Whenever it is made to appear to the Chief Magistrate –

(a) that a fair and impartial ... trial cannot be had in any magistrates’ court; or

(b) that some question of law of unusual difficulty is likely to arise; or

(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same; or

(d) that an order under this section will tend to the general convenience of the parties or witnesses; or

(e) that such an order is expedient for the ends of justice or is required by any provision of this Code;

he may order –

(i) that any offence be inquired into or tried by any court not empowered under the preceding sections of this Part but in other respects competent to inquire into or try such offence;

(ii) that any particular criminal case or class of cases be transferred from a magistrates’ court to any other magistrates’ court of equal or superior jurisdiction;

(iii) that an accused person be committed for trial to his court.

(2) The Chief Magistrate may act on the report of the lower court or on the application of a party interested or on its own initiative.

(3) Every application by an interested party for the exercise of the power conferred by this section shall be made by motion, which shall be supported by affidavit.

(4) Every accused person making any such application shall give to the Director of Public Prosecutions notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

(5) When an accused person makes any such application the Chief Magistrate may direct him to execute a bond, with or without sureties, conditioned that he will, if convicted, pay the costs of the prosecutor.”

In this case, the offence is alleged to have been committed in Kadavu, and although the charge itself was filed in the Suva Magistrates’ Court, it was clearly the intention of all parties that the trial would be conducted in Kadavu. In order to transfer the case to Suva, the Appellant should have filed an application for transfer by motion and affidavit before the Chief Magistrate under section 70 of the Criminal Procedure Code. He did not, choosing instead to make an application before the presiding Magistrate. The presiding Magistrate could only have made an order for transfer under section 68 if he considered that the alleged offence had been committed outside of his jurisdiction. That section clearly did not apply.

If counsel had made a proper application under section 70, I doubt that it would have succeeded.

Firstly, all prosecution witnesses are resident on Kadavu, and to convey them to Suva for a 2 week trial would be both expensive and disruptive for the State. Secondly, ensuring the security of the accused and counsel should be a simple police operation. Thirdly, inconvenience to counsel in Kadavu is not a compelling ground. The logical and most suitable place for trial is the Kadavu court. The learned Magistrate quite rightly refused the application. In any event, as I have said, counsel failed to use the proper procedure to ask for transfer.

For these reasons, this appeal must fail. It is dismissed. The matter must now proceed to trial with expedition.

Nazhat Shameem
JUDGE

At Suva
5th October 2004