IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CR. MISC. CASE NO. HAM 019 OF 2011

BETWEEN:

BALWANT SINGH
s/o Daya Singh
Applicant

AND:

STATE
Respondent

Mr. H.A. Shah for the Applicant
Ms L. Vateitei for the State

Date of Hearing: 4 April and 3 May 2011
Date of Ruling: 13 May 2011

RULING
[Stay Application]

[1] By way of notice of motion and affidavit of the applicant, the applicant applies for a permanent stay of proceedings against him in the Magistrates Court at Ba.

[2] The applicant prays that the delay in determining his case is inordinate and that the learned Magistrate at the conclusion of the evidence failed to deliver a verdict and no date of hearing was given to him. The Magistrate is no longer with the judiciary and the prosecution are seeking to commence proceedings de novo.

[3] The accused was charged with 3 counts of rape contrary to section sections 149 and 150 of the Penal Code Cap. 17, and one count of attempted rape contrary to section 151 of that Code. He first appeared in the Ba Magistracy on the 24th July 2006 when he entered pleas of not guilty to all charges.

[4] The case was called many times until 14th May 2009 when the hearing actually commenced. The case was heard between that date and the 3rd June 2009 when Mr. H.A. Shah for the accused made an application of no case to answer. On the 4th May, the Magistrate Mr. Rabuku ruled that although no evidence of lack of consent had been led by the prosecution, there was still a possibility that the Court could find him guilty of lesser alternative charges pursuant to section 176 of the Penal Code, and there was therefore a case to answer on all charges.

[5] The proceedings in the Magistrates' Court in Ba were most unsatisfactory. The case took nearly three years of "mentions" before it was heard and even at the end of the case no verdict was delivered. Nearly a year later, still absent a verdict, the State applied to have the case heard de novo. It is on the basis of that application below that the within application is made.

[6] It is unnecessary for this Court to examine the time that these proceedings have taken in the Court below, for the very reason that the Magistrate fell into error in his ruling of no case by relying on section 176 of the Penal Code. The magistrate, on an erroneous application by the prosecution, was under the misapprehension that section 176 allowed him to find lesser offences of attempted rape when there had been no evidence of lack of consent. Unfortunately section 176 does not make this provision at all. Section 176 allows for alternative verdicts in cases of unnatural offences contrary to section 175, and not alternatives to offences of rape or attempted rape.

[7] As a result, the Magistrate having found no case to answer on all of the counts because the prosecution had not led evidence of lack of consent, and there being no alternative offences available, that then puts an end to this matter. It would be grossly unjust for the State to be allowed to proceed de novo and correct errors made in the first trial.

[8] These proceedings in Criminal Case No. 356 of 2006 are permanently stayed.

Paul K. Madigan
JUDGE

At Lautoka
13 May 2011