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State v Baoy [2009] FJHC 230; HAM030.2009 (20 October 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM030 of 2009

Between:

THE STATE
Applicant

And:

MARY ANN MORAL BAOY
Respondent

Date of Hearing: 11th September 2009
Date of Ruling: 20th October 2009

Counsel: Ms V. Lidise for State
No appearance for Respondent

RULING

[1] The Director of Public Prosecutions seeks an extension of time to appeal against a decision of the Magistrates’ Court, discharging the respondent of the following offence:

Statement of Offence

UNLAWFUL POSSESSION OF AN ILLICIT DRUG: Contrary to section 5(a) of the Illicit Drugs Control Act No. 9 of 2004.

Particulars of Offence

MARY ANN MORAL BAOY f/n Benjamin Baoy on the 5th day of November 2007 at Sigatoka Town in the Western Division, without lawful authority, had in her possession 709.7 grams of Indian Hemp, an Illicit Drug.

[2] Section 310 of the Criminal Procedure Code provides that an appeal from the Magistrates’ Court must be filed within 28 days from the date of the decision appealed against, unless the court extends the statutory appeal period. The length of delay, the reason for delay and the merit of the appeal are to be considered in an application for an extension of time to appeal.

[3] The respondent first appeared in court on 6 November 2007. She entered a plea of not guilty and was granted bail. After numerous adjournments, the trial was scheduled to commence on 1 October 2008. On this date, counsel for the State did not appear in court. The respondent was present with her counsel. Her counsel opposed any further adjournment and sought an acquittal.

[4] The learned Magistrate refused to acquit the respondent, but dismissed the charge under section 198 of the Criminal Procedure Code.

[5] Section 198 states:

"(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 legal practitioner, the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of 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.

(2) The expression "legal practitioner" in this section and in sections 200 and 202 shall in relation to a complaint include a public prosecutor."

[6] The terms of section 198 are clear. It only applies on first call, when the accused 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 to the court under arrest." It was held in State v. Semisi Wainiqolo HAA 00117/97 that section 198 has no application in a case where the prosecutor fails to appear for mention or hearing dates.

[7] When the prosecutor fails to appear for trial, the relevant provision to dismiss a charge is section 203 of the Criminal Procedure Code.

[8] Section 203 provides:

"(1) If at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which has made the order of adjournment, such court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs as the court shall think fit.

(2) If the accused person who has not appeared as aforesaid, is charged with felony, or if the court, in its discretion, refrains from convicting the accused in his absence, the court shall issue a warrant for the apprehension of the accused person and caused him to be brought before the court."

[9] Dismissal of a charge under section 203 is discretionary. The discretion must be exercised judicially (Rajendra Ist Deo v. Ratnesh Lal Jattan [2002] HAA077/02S 11 November 2002). If a charge is dismissed under section 203, the prosecutor has discretion to recharge the accused, unless the offence is time barred (Rajendra Ist Deo (supra)).

[10] The learned Magistrate was clearly wrong to rely on section 198 to dismiss the charge. The relevant provision that applied in this case was section 203. However, despite the error, there is no miscarriage of justice.

[11] In this case, the prosecutor failed to appear for trial because she did not record the trial date in her diary. The prosecutor was present when the trial was set. The prosecutor had advanced notice of the trial date. Yet, the witnesses were not subpoenaed by the prosecutor for the trial.

[12] I find the prosecutor did not act diligently in this case. The learned Magistrate therefore was justified to dismiss the charge for want of prosecution. In the given circumstances, an appeal against the exercise of discretion by the learned Magistrate to dismiss the charge against the respondent has no chance of success. In any event, the prosecutor could have re-charged the respondent instead of pursuing an appeal.

[13] The application for an extension of time to appeal was filed on 27 July 2009. By the time the appeal was filed, the respondent had left the jurisdiction and the State could not serve her with the application to secure her attendance in court for the hearing. The delay is of nine months. The State attributes the delay to difficulty in obtaining information pertaining to the appeal. I do not think the State has advanced good cause for the delay. The State had the carriage of the prosecution and a timely appeal could have been filed if the prosecutor had acted diligently.

[14] The application for leave to appeal is refused.

Daniel Goundar
JUDGE

At Lautoka
20th October 2009