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State v Naidu [2004] FJHC 83; HAA0018J.2004S (2 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0018 OF 2004S

Between:

THE STATE
Appellant

And:

RAM NAIDU
Respondent

Mr. P. Bulamainaivalu for State
Mr. D. Sharma for Respondent

Hearing: 26th March 2004
Judgment: 2nd April 2004

JUDGMENT

The Respondent was charged with the following offence:

Statement of Offence

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to Section 245 of the Penal Code, Cap 17.

Particulars of Offence

PC 1815 RAM NAIDU s/o Er Naidu and another on the 15th day of March 2001, at Samabula, in the Central Division, assaulted Kamal Lata Ram d/o Jai Mangal, thereby occasioning her actual bodily harm.

He was acquitted on the 29th of December 2003 on the ground that the prosecution was not ready to proceed to trial. The State now appeals against that acquittal. The grounds of appeal are:

“(a) That the Prosecutor had shown good cause for seeking adjournment.

(b) That the learned Magistrate erred in law and in fact when he failed to exercise his discretion to adjourn judicially, refusing an application by the State for an adjournment.

(c) That the learned Magistrate erred in law and in fact when he acquitted the Respondent under section 201 of the Criminal Procedure Code.

(d) That the learned Magistrate erred in law and in fact when he failed to take into consideration that the present case could not have proceeded when the State had not being given reasonable opportunity to file and serve witness summons and make an application for the production order.

(e) That delay in this trial was due to irregular and unexplained re-assignment of the file between a number of Magistrates in respect of which the State was denied any reasonable opportunity to comment.”

According to the court record, the charge was first read to the Respondent on the 28th of July 2003 before Ms Kaimacuata. She adjourned the matter for full disclosure, “first phase” disclosure, having been served and for the 22nd of October 2003 as a tentative hearing date.

On the 6th of August, the police prosecutor told the court that the file had been forwarded to the DPP’s Office, and on the 22nd of October, the date now set for hearing, defence counsel said he had not received a copy of the station diary which he had requested of the prosecution. The case was adjourned to the 27th of October 2003. Four prosecution witnesses were present.

On the 27th of October 2003, a date set for mention only, counsel asked to have the matter called in the Chief Magistrate’s Court for an application to be made. Before the Chief Magistrate, Mr. A. Singh for the Respondent said he wanted an early hearing date because the Respondent was a police officer and his family was suffering as a result of the charge. The Chief Magistrate arranged to call the matter on the 29th of October and on that day transferred the case to Mr. Sauvakacolo.

On the 3rd of November 2003, the record simply reads:

“For Prosecution: Ms Chandra present.

Accused: Present

Court: 13.11.2002 mention only – Settlement.”

However when defence counsel appeared later, this date was changed to the 11th of December 2003 for hearing.

On the 10th of December, the case was called, and the hearing date vacated. A new hearing date was given, the 29th of December 2003. The Respondent was represented by Mr. Singh. The prosecution was represented by ASP Armogam.

On the 29th of December 2003, Ms Chandra appeared for the prosecution. Mr. Singh appeared for the Respondent. Ms Chandra said:

“I seek Court’s indulgence in summoning our witnesses. The hearing date was set in our absence. We manage to summon some witnesses. Our complainant is not here. We seek an adjournment.”

Defence counsel opposes the adjournment. He said that one hearing date had already been vacated because the DPP’s Office was at a conference, the offence was alleged to have been committed on the 15th of June 2001, the Respondent was on half-salary while interdicted, his 2 witnesses were due to go overseas. The prosecutor asked for time to summon her witnesses, and said her witnesses present could not “make a prima facie case.”

The learned Magistrate refused the application saying that he sympathised with the prosecution’s “shortcoming” but that he was not satisfied that she had shown good cause for the granting of the adjournment. He said that the complainant who was a prisoner, needed a production order to appear and that he, the Magistrate had refused to sign the production order given to him at noon on the Friday before because there had been no application made for it, nor any order made. He also said that the prosecution had not issued fresh summons for the hearing, and that therefore good cause had not been shown.

Before the hearing of this appeal, the State sought leave to adduce further evidence of events leading up to this ruling. They filed the affidavit of Laleshni Chandra, State counsel dated 11th March 2004. In that affidavit she said that the first hearing date of the 22nd of October 2003 was vacated because the learned Magistrate was too busy with other matters. She further states that the case was called before the Chief Magistrate to try to procure an early hearing date. This resulted in a fixture before Mr. Sauvakacolo. On the 13th of November 2003, despite a long wait before Mr. Sauvakacolo, she was told that the matter had been placed before the Chief Magistrate who had then re-assigned the case to Mr. Katonivualiku. The matter was then listed before him.

This affidavit, which was not objected to by counsel for the Respondent, is silent as to the reasons for the failure of the prosecution to summon witnesses for the 29th of December. Another affidavit, also sworn by Ms Chandra and filed in the Magistrates’ Court on the 22nd of January 2004 (attached to the Petition of Appeal) states that Ms Chandra tried to have summons issued before the 29th of December but that they were returned unsigned by the Magistrates’ Court. That affidavit is not the subject of the application to adduce further evidence and I disregard it.

The affidavit of Ms Chandra does suggest that on several occasions the case was assigned, then re-assigned to different magistrates and that the prosecution was not always informed of the status of the case. However, no explanation is offered for the lack of readiness of the State on the 29th of December 2003. Certainly, although the hearing date was set in Ms Chandra’s absence, the Divisional Prosecuting Officer was present and agreed to the 29th of December.

In their submissions at the hearing of this appeal counsel referred to several authorities on the judicial discretion to adjourn, in particular Robert Tweedie Macahill v. R Crim. App. No. 45 of 1980, State v. Preet Singh Verma Crim. App. 0039 of 2001, DPP v. Neumi Kalou & Anr. Crim. App. No. 6 of 1996 and DPP v. Vikash Sharma (1994) 40 FLR 234. Counsel for the Respondent submitted that the learned Magistrate exercised his discretion after considering all relevant matters and that he did not err. State counsel submitted that the learned Magistrate failed to take into account the history of the case and the fact that the prosecution was not responsible for previous adjournments.

As a matter of law, an appellate court should not interfere with the exercise of a discretion to adjourn unless the appellant can show that the discretion had not been exercised judicially, or was based on a wrong principle and that the decision resulted in an injustice. (Rajesh Chand & Shailesh Kumar v. The State Crim. App. AAU0056 of 1999S). Thus in Raj Singh v. State Crim. App. No. HAA0067 of 2001S, a decision to allow the prosecution to formally prove an offence without considering the number of adjournments sought by the prosecution, was held to be an error of law.

In State v. Samuela Suguturaga Crim. App. HAA0001 of 2002S a decision to acquit an accused person when the prosecution had not summoned all their witnesses was upheld, on the ground that the magistrate had correctly made his decision on the ground of the prejudice to the accused.

In this case the learned Magistrate correctly reminded himself on the law relevant to the consideration of adjournments. He checked the court record and saw that one adjournment out of three had been sought by the prosecution on the ground that the prosecutor was attending a conference. No reason was given to him for the non-issuing of summons, and the production order was given to the court for signing, at the eleventh hour. In the circumstances I cannot agree with State counsel that the learned Magistrate erred in law or in principle. It is unfortunate that he did not call upon the prosecution to commence calling its available witnesses, which he ought to have done (Pain J in Vikash Sharma (supra) ) but the court record suggests that the prosecutor did not ask to proceed with the case in any event. Nor did she ask to withdraw the charge.

In the circumstances I consider that the learned Magistrate did not err in law or in principle in refusing the adjournment. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
2nd April 2004