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State v Baba [2010] FJHC 317; HAC135.2010 (17 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC135 of 2010

STATE

V

JALE BABA

Hearing: 2nd August 2010
Ruling: 17th August 2010

Counsel: Mrs. N. Ratakele for State
Mr. J. Baba for Accused

RULING

[1] This case was transferred to the High Court by the Suva Magistrates' Court pursuant to section 42(1) of the Criminal Procedure Decree 2009, which provides:

Whenever any doubt arises as to the court by which any offence should be tried, any court entertaining such doubt may, in its discretion, report the circumstances to the High Court, and the High Court shall decide by which court the offence shall be tried.

[2] The transfer order was made on 22 June 2010 but the case was transferred to this Court on 23 July 2010 without the transcript of the proceedings in the Magistrates' Court. The transfer order states:

"IN ACCORDANCE WITH Section 42(1) of the Crimes Decree 2009, Amendment Act I hereby transfer the arraignment/trial/sentencing* of the above-named accused to the High Court in respect of the attached charge sheet."

[3] It appears that the reference to the Crimes Decree in the order is an error. The order was made under the Criminal Procedure Decree. Also, the reference that the case was transferred for arraignment/trial/sentencing is an error. The transfer was made to the High Court to decide on the jurisdiction in case of doubt. It is important that transfer orders from the Magistrates' Court to the High Court are expressed clearly so that a judge is not left in doubt as to why the case is before him.

[4] Counsel for the State has filed helpful submissions which give some background to this case. The accused and a co-accused were jointly charged under the Penal Code with attempted larceny and conversion.

[5] The trial commenced in the Magistrates' Court on 7 January 2008. After the close of the case for the prosecution, the learned Magistrate upheld a no case to answer application by the defence and acquitted the accused persons.

[6] The State appealed against the acquittals to the High Court. On 9 October 2008, the High Court set aside the acquittals and ordered the trial to proceed with the defence case before the same magistrate.

[7] After the case was remitted to the Magistrates' Court, it was adjourned on numerous occasions, mainly due to the fault of the defence.

[8] Subsequently, the trial Magistrate left the bench and the case is now before another Magistrate.

[9] Meanwhile, the co-accused died and the charges against him are no longer relevant.

[10] On 22 June 2008, the State made submissions before the new Magistrate on the options that the court had in terms of continuing with the case. It was submitted that the trial could either continue on the previous trial record, or de novo. The learned Magistrate without making a decision transferred the case to the High Court to determine jurisdiction.

[11] In my judgment, the learned Magistrate erred in transferring the case to the High Court under section 42(1) of the Criminal Procedure Decree. There is no issue of jurisdiction in this case. The accused is charged with offences that can be tried in the Magistrates' Court.

[12] An attempt to commit larceny contrary to section 381 of the Penal Code is an offence triable in the Magistrates' Court according to the First Schedule of the Criminal Procedure Code. Conversion pursuant to section 279 of the Penal Code is also triable in the Magistrates' Court with the consent of the accused. There cannot be a doubt as to the jurisdiction of the Magistrates' Court to try the charges in this case. For these reasons, the transfer order made to clarify doubt as to the jurisdiction was made in an error.

[13] The transfer order is quashed and the case is remitted to the Magistrates' Court. The learned Magistrate has discretion to either proceed with the case on the record of the previous Magistrate, or de novo. The discretion must be exercised after weighting all the relevant factors such as sufficiency of earlier court record and whether the accused is disadvantaged by the fact that the new Magistrate had no opportunity to observe the demeanour of the prosecution witnesses when they gave evidence. Of course, no exhaustive list can be produced. The right to a fair trial is the ultimate objective.

Daniel Goundar
JUDGE

At Suva
17th August 2010

Solicitors:
Office of the Director of Public Prosecutions for State
Office of Java's Law for Accused