IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0054 of 2005S

Between:

STATE
Appellant

And:

NEMANI CAKACAKA
Respondent

Hearing: 16th September 2005
Judgment: 23rd September 2005

Counsel: Mr. D. Prasad for State
Respondent in Person

JUDGMENT

The Director of Public Prosecutions appeals against the discharge of the Respondent in the Suva Magistrates’ Court, on a charge of robbery with violence. The grounds of appeal are:

(i)	That the learned Magistrate erred in law and in fact when he failed to exercise his discretion judicially in discharging the accused without giving the Police prosecutor an opportunity to reply in respect of this matter.

(ii)	That this case involves a serious charge: State v. Kanito Matanigasau Crim. App. No. HAM0010.2001.

See Robert Tweedle Macahill v. R Crim. App. No. 43.1980 [CA], DPP v. Vikash Sharma and Others Crim. App. No. HAA0011.1994, DPP v. Neumi Kalou Crim. App. No. HAA0016.1996.

The charge was first laid on the 3rd of January 2003. The Appellant and his co-accused appeared in court on the same day and both wished to obtain legal advice. The case was adjourned to the 14th of January when they were granted bail. There were then adjournments on the 28th of January, 11th of February, 14th of March, 23rd of April, 25th of June, 17th of July and 16th of September, 2003. Most of these adjournments were for the non-appearance of one or other of the accused. On occasion the court had to adjourn because the accused were serving prisoners and production orders had not been issued. On the 16th of September 2003, the Appellant pleaded guilty. He was given time to obtain legal advice. On the 6th of November 2003, the plea of guilty had still not been dealt with. The Appellant was granted bail. On the 27th of January the 1st Accused failed to appear, and a bench warrant was issued. On the 16th of March 2004, the warrant was still unexecuted. On the 30th of March 2004, the Appellant’s plea was taken again, apparently because the presiding Magistrate had forgotten that there was a plea of guilty on file. On the 22nd of April 2004, both accused persons were granted bail and a date was set for hearing. On the hearing date, the Magistrate was on leave and the case was further adjourned to the 7th of October 2004, the 13th of December 2004 and the 19th of January 2005. By this time the accused’s interest in their own case was obviously waning. They failed to appear at 9.15am on the 19th of January 2005. However they did appear later in the day. The case was then adjourned to the 12th of April 2005. The record then reads as follows:

“For Prosecution:	Not present

Accused 1:		Not present

Accused 2:		Present

Court:		No appearance of prosecution, I order case against Accused 2 be dismissed under section 198 of the Criminal Procedure Code. Bench warrant to Accused. Later prosecution appeared.”

I have set out the chronology of the case in some detail, because the case history is relevant to the question of the way in which the Appellant was discharged.

The first ground of appeal is that the learned Magistrate failed to exercise his discretion judicially. This ground must succeed. Firstly, section 198 of the Criminal Procedure Code has no application after first call. This point has been decided in several cases in the past the most recent of which is State v. Nassar Ali Hassan Crim. App. No: HAA0053 of 2005S. Secondly, the history of the case shows that delay was caused in the main by the accused’s non-appearance and by a casual approach to adjournments by the bench. This was a 2003 case. Although the 1st Accused pleaded guilty in 2003, the Appellant maintained his not guilty plea throughout and should have had his case dealt with in 2003. Indeed the prosecution could have severed the charge after the guilty plea of the Appellant’s co-accused, the co-accused’s non-appearance would then have become irrelevant to the trial. The delay was never the prosecution’s fault although it appears that the lack of management of the case itself was attributable to the bench and to the prosecution.

Nevertheless the lack of fault on the prosecution’s part, was a matter which ought to have been taken into account by the learned Magistrate when he exercised his discretion to discharge the Appellant. The charge was a serious one and that too was a relevant factor.

This appeal succeeds on the ground that the learned Magistrate erred in law and in his discretion to discharge the Appellant under section 198 of the Criminal Procedure Code.

The order for discharge is quashed. The case is remitted to the Magistrates’ Court for a hearing date to be set and for the trial to proceed.

Nazhat Shameem
JUDGE

At Suva
23rd September 2005