IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0053 of 2005S

Between:

THE STATE
Appellant

And:

NASSAR ALI HASSAN
Respondent

Hearing: 5th August 2005
Judgment: 12th August 2005

Counsel: Ms V. Lidise for State
Respondent in Person

JUDGMENT

On the 11th of June 2004 the Respondent was charged with careless driving. It was alleged that on the 12th of March 2004 he drove on Rewa Street without due care and attention, contrary to section 99(1) of the Land Transport Act.

The case was first called on the 13th of July 2004. The Respondent pleaded not guilty. The case was adjourned for disclosure. On the 21st of October, the Respondent failed to appear and a bench warrant was issued. He was brought to court under arrest on the 15th of December 2004. He was fined $70 for his non-appearance, and the case was adjourned to the 8th of March, 2005. The prosecution was ready to proceed and had three witnesses present. However, the Respondent said:

“I have a vital witness, who was a passenger in my taxi on the day of the accident. I cannot find him and I need 7 days to find him. Ask for trial adjournment.”

The case was next called (for hearing) on the 12th of April 2005. No one appeared for the prosecution. The Respondent was present. The court then said:

“No appearance of the prosecution. I order that the charge be dismissed and accused discharged section 198 Criminal Procedure Code.”

The Director of Public Prosecutions appeals against this order on the following two grounds:

(a)	That the learned trial Magistrate erred in law when he discharged the Respondent under section 198 of the Criminal Procedure Code.

(b)	That the learned trial Magistrate erred in law in failing to exercise proper and due judicial discretion to adjourn or stand-down the matter given that the course list for that day showed that court proceedings were due to commence at 9.15am and not 9am.

Ground a

The scope of section 198 of the Criminal Procedure Code, has been the subject of several appeals in the past. That section provides as follows:

“(1) If, in any case which a magistrates’ court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear by himself or by his barrister and solicitor, the court shall dismiss the case until some other date, upon such terms as it shall think fit, in which event it may, pending such adjourned hearing, either admit the accused to bail or remand him to prison, or take such security for his appearance as the court shall think fit.”

In State v. Semisi Wainiqolo and Moce HAA0117 of 1997, Pain J considered an appeal against acquittal by the DPP, where the magistrate had dismissed the charges under section 198 because no prosecutor was present in court. His Lordship held that section 198 only applies on first call when the accused appears in obedience to the summons, or is brought under arrest. Thereafter, section 198 has no application, and it is section 203 which allows the court to dismiss for the non-appearance of the complainant.

State counsel also referred me to my own decision in Ministry of Labour and Industrial Relations v. Merchant Bank Crim. App. No. 11 of 2002 in which I said that I agreed with Pain J’s decision in Semisi Wainiqolo as to the effect of a decision made properly under section 198. Such a decision can only be for a discharge, not an acquittal.

Of course in this case the learned Magistrate did discharge the Respondent. However, the prosecution is now time-barred from laying a fresh charge, thus the petition of appeal. Clearly the learned Magistrate erred in dismissing the charge under section 198. That section had no application after first call. The order of the learned Magistrate is quashed and the case is remitted to the Magistrates’ Court for a hearing date to be set.

Ground (b)

It is of course not necessary to consider the second ground of appeal, that the learned Magistrate should have adjourned to allow the prosecutor to come to court. There is no evidence before me that the learned Magistrate sat early that day, at 9am instead of 9.15am. However, the history of the case shows that the Respondent had been responsible for all the previous adjournments. On the one previous hearing date, the prosecutor had been ready and the Respondent asked for an adjournment. It is important to be even-handed in the granting of adjournments, and it must be remembered that the dismissal of charges can have serious consequences for the prosecution particularly where there is a statutory time-bar.

Result

The order for discharge is set aside. The case is remitted to the Magistrates’ Court for a new hearing date to be set.

Nazhat Shameem
JUDGE

At Suva
12th August 2005