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State v Singh [2008] FJHC 340; HAA001.2008 (11 November 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 001 of 2008

Between:

STATE
Appellant

And:

ALINDRA SINGH
1st Respondent

SUNITA DEVI
2nd Respondent

Date of Hearing: 3rd November 2008
Date of Judgment: 11th November 2008

Mr. Vodokisolomone for the Appellant
1st Respondent appeared in person
Ms. Khan for the 2nd Respondent

JUDGMENT

1. This is the State’s appeal against the acquittals of the 1st and 2nd Respondents.
   

Background

2. On 20 December 2006, the 1st Respondent was charged with a total of 7 offences of larceny.
   
3. On 20 December 2006, the 2nd Respondent was charged with a total of 14 offences relating to forgery, larceny by servant, uttering, and obtaining money on forged documents.
   
4. On 29 October 2007, the day that this was to be tried, the learned Magistrate sitting in the Resident Magistrates Court at Ba in the Western Division refused an application by the Prosecution to adjourn the matter. On an application by the Prosecution that the charges be withdrawn, he then acquitted the Respondents of all charges under section 201(2)(b)(i).
   
5. In support of its Appeal, the State raises the following grounds:
   
   1. That the Learned Magistrate had erred in law and in fact when he denied the Appellant’s request for an adjournment having regard to the circumstances of the case;
      
   2. That the learned Magistrate failed to exercise his discretion judicially to allow an adjournment in the interest of justice; and
      
   3. That the Learned Magistrate erred in law and in fact when he acquitted the Respondents.
      
6. This matter was first called on 12 December 2006. It was listed for trial for 5 days, to commence on 29 October to 2nd November 2007.
   
7. On the first day of trial, the Prosecution sought an adjournment on the following grounds:
   
   1. A Senior legal officer of the DPP in Ba was still clarifying issues in relation to evidence, and was waiting for a legal opinion from the DPP in Suva; and
      
   2. On the first day of trial, a Police prosecuting officer from Ba appeared under instructions from the Senior Legal Officer who because of illness, was unable to attend Court that day.
      

8. After the application for an adjournment was refused, the Prosecution applied to have the charges withdrawn under section 201(2)(b)(ii) of the Criminal Procedure Ordinance, and that the Accused be discharged. The Defence resisted the application to the extent that both accused should not be discharged but acquitted under section 201(2)(b)(ii).

9. The learned Magistrate asked the Prosecution if it was prepared to pay the Respondents’ costs. It said that it was not.

10. The learned Magistrate then acquitted both Respondents under section 201(2)(b)(i) of the Criminal Procedure Ordinance.

11. The State says that the learned Magistrate was wrong to have acquitted both Respondents because of what he perceived as an unacceptable degree of neglect by the DPP in making sure that the State was ready to proceed with the prosecution on the first day of trial.

12. The State also says that on the first day of trial, when the learned Magistrate was made aware that the Senior Legal Officer would be absent due to illness, he should have adjourned the matter to the following day for good cause in accordance with section 202(2) of the Criminal Procedure Code.

13. In addition, the State says that by failing to administer the proper procedures of acquittal, which it says are set out in DPP v. Vikash Sharma & Two others HAA011 of 1994 at page 5, the learned Magistrate failed to properly acquit the Respondents in accordance with his judicial discretion.

14. Finally, the State says that the learned Magistrate failed to exercise his discretion judicially when acquitting the Respondents in that the State did not have the charges heard and determined by the Court.

15. In reply, the 1st and 2nd Respondents say that this appeal is misconceived. They also rely on the following parts of the Court Record, which says as follows:

"29/10/07

Prosecution: Seek adjournment. State legal office sought second opinion from DPP and first opinion from Mr. Daniel Gounder – still clarifying issues complicated case.

S.K. Ram : Oppose the adjournment if the DPP were not clear on the evidence then charges should not have been laid if the DPP had not done their investigations, then charges should not have been laid, asked that accused be acquitted.

Prosecution: When first opinion received in May 2007 some issues raised were not attended to, not prepared to pay cost for today.

S.K. Ram : Prepared for 5 days trial. Did not get any prior indications for adjournment.

Prosecution: We did not inform the defence prior to making this application for an adjournment. I only received the file from the DPP this morning.

Court : [1] This matter is set down for hearing and the prosecutions is seeking an adjournment. The matter is set down for hearing for 5 days (that is 29/10/07 – 01/11/07) and Ms. Kaimacuata is not well and in view of the length of the trial I would have done the trial if I had to.

[2] The prosecution is seeking an adjournment and in making the application for adjournment he submitted that there were some pending issues to be resolved and this is a complex case. He said that the issues arose out of an opinion given by State Counsel Mr. Daniel Gounder in May 2007 which means the issues have been pending for the last 6 months.

[3] In my view nobody should be allowed to leave matters unattended for 6 months and come to Court on the 11th hour and seek an adjournment as certain issues arising out of an opinion given 6 months earlier have not been attended to. To put it mildly this is very unprofessional and therefore the application of an adjournment is refused."

The Appeal

16. The first issue in this appeal is did the learned Magistrate fail to exercise his discretion judicially as to whether or not to grant the adjournment?

17. In House v The King [1936] 55 CLR 499 Dixon, Evatt & McTiernan JJ at 504-505 held:

"The manner in which an appeal against the exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the material for doing so."

18. In State v Iqbal [2000] FJHC 136; Haa0125.99s (5 January 2000) (per Pathik J ) the court said:
    

"In a case where adjournment is sought, the Magistrate should exercise his discretion judicially. Although an appellate Court would be loath 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." (Mustill L.J. in R v Swansea Justice and Davies, ex parte Director of Public Prosecutions 154 J.P. 709 at 712)

19. In State v Nand [2005] FJHC 79; HAA0087.2004 (21 January 2005) (per Winter J) the court said:

"In R.T. McCahill, Criminal Appeal No. 43 of 1980 the Fiji Court of Appeal observed that the granting of an adjournment is a discretionary matter. An appellate court will not interfere unless it is satisfied that the discretion was not exercised judicially, and the rights of the parties were thereby defeated.

When granting an adjournment in these circumstances courts must be fair to both sides. The defence because an accused is presumed innocent and entitled to have his case disposed of quickly. The prosecution because as societies guardian they must protect the public interest by ensuring that properly brought prosecutions are concluded. In R v Swansea, Justices and Davies, Ex-parte Director of Public Prosecutions, 154 J.P. 709 at 712-713 Mustill L.J. again referred to in Iqbal (supra):

"....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 first available hearing to the parties."

This principle is underscored by section 202 of the Criminal Procedure Code which states:

"(1) During the hearing of any case, the magistrate must not normally allow any adjournment other than from day to day consecutively until the trial has reached its conclusion, unless for good cause, which is to be stated in the record.

(2) For the purposes of subsection (1) good cause includes, but is not limited to the reasonably excusable absence of a party or witness or of a party’s legal practitioner."

The curial history, slackness of the parties, and reasons for earlier adjournments while an important background in the consideration of any application for adjournment must be seen in the context that each adjournment application requires a fresh exercise of the Court’s discretion power".

20. In this matter, the Court Record is clear. The learned Magistrate did not refuse the adjournment because the Prosecutor was unwell and unable to attend. It shows that on the first day of trial, some six months after the prosecution had received a legal opinion on the case, it applied for an adjournment of the trial. The reason given was that it was a complex case, and that certain legal issues had not yet been resolved.

21. When the adjournment was refused, the Prosecution applied for the charges to be withdrawn and both Respondents to be discharged under section 201(2)(b)(ii) of the Criminal Procedure Code. When pressed on costs, the Prosecution said that it was not prepared to pay the Respondents legal costs.

22. The learned Magistrate gave reasons for his decision, which appear at page 3 paragraph 3 of the Court Record. Put simply, he said that the Prosecution should not be allowed to leave matters unattended for 6 months and come to Court on the 11th hour and seek an adjournment of the trial simply because certain matters have not been attended to.

23. The learned Magistrate observed that despite the Prosecutions delay, if it granted the Prosecution’s application, both Respondents would be re-charged by the State when it is ready.

24. In my judgment, the learned Magistrate was entitled to refuse the adjournment. This was not a particularly complex case, as suggestion by the Prosecution. In fairness to all parties concerned, the Prosecution should have been ready to proceed. In this case the Prosecution was unable to explain why there had been a six month delay in clarifying the outstanding legal issues. To have discharged the Respondents in those circumstances would have denied them of their right to have their cases disposed of quickly, and left them not knowing if they would be re-charged again in the future.

25. In his decision the learned Magistrate appears to have correctly observed that the accused’s constitutional right to have the matter determined within a reasonable time and the public interest to have prosecutions resolved quickly by proceeding to trial on the first or second hearing date should be maintained.

26. As in Nand (supra), I am also of the opinion that Iqbal (supra) can be distinguished from the present case in that here there was no chronology that demonstrates that the Respondents were responsible for all of the adjournments.

27. The Court Record shows at page 5 paragraph 5 that after allowing the Prosecution to apply to withdraw the complaint against both accused in accordance with section 201(b) of the Criminal Procedure Code, the learned Magistrate said that it was entirely within his discretion as to what orders he would make under sub section (i) or (ii). The learned Magistrate then acquitted the Respondents.

28. However, the State contends that the Learned Magistrate erred in law and in fact when he acquitted the Respondents. It says that by failing to administer the proper procedures of acquittal, which it says are set out in DPP v. Vikash Sharma & Two others HAA011 of 1994 at page 5, the learned Magistrate failed to properly acquit the Respondents in accordance with his judicial discretion.

29. In that case, when the Prosecution was not ready to proceed on the trial day, the learned Magistrate acquitted the accused because of lack of evidence.

30. At the end of the judgment, for the purposes of clarity, the Court (per Pain J) stated the formal steps which should be taken by a Magistrate who intend to acquit an accused after finding there is no case to answer under section 210 of the Criminal Procedure Code.

31. However, in this case, the learned Magistrate acquitted both accused after exercising his discretion in accordance section 201(2) (b) (i) of the Criminal Procedure Code. I therefore find that this ground of appeal is misconceived.

32. I can find no fault with the way in which the learned Magistrate exercised the discretion vested in him, firstly in deciding to refuse the adjournment, and finally in deciding to acquit the Respondents under s.201(2)(b)(i) of the Criminal Procedure Code.

33. For these reasons the appeal is dismissed.

Anthony J Sherry
Judge

Lautoka
11th November 2008