IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

HIGH COURT CRIMINAL APPEAL CASE NO:
HAA 015 OF 2011

BETWEEN:

STATE
APPELLANT

AND:

TEVITA RAIKOTI
RESPONDENT

Counsel: Mr. O'Driscoll for Appellant
Mr Singh.J for Respondent

Date of Hearing: 19/07/2011
Date of Judgment: 03/08/2011

 JUDGMENT

[1]	This is an appeal by the State against the order of acquittal entered by the Magistrate's Court at Nasinu.

[2]	The Respondent was charged in the Nasinu Magistrate's Court with two (2) counts of Dangerous Driving Occasioning Death contrary to section 97(2) and 114 of the Land Transport Act No. 35 of 1998 and one (1) count of Failure to Comply with Requirements Following An Accident contrary to regulations 63, 64 and 87 of the Land Transport (Traffic) Regulations 2000.

[3]	The case was fixed for trial on the 4th of April 2011. On that day the Counsel for the Prosecution (Respondent) made an application for an adjournment as the only eye witness in the case could not be located.

[4]	Counsel for Respondent objected to the said application and the learned Magistrate refusing to grant an adjournment dismissed the charge and acquitted the accused.

[5]	The Appellant (State) appealed against the said decision on the following grounds.

(i)	That the learned Magistrate erred in law in refusing the Appellant's application seeking an adjournment on the 4th day of April 2011.

(ii)	That the learned Magistrate erred in law when he made the order to dismiss the charges and acquit the Respondent under section 166(1) and 166(2) (a) of the Criminal Procedure Decree 2009.

[6]	I have carefully considered the submissions made by Counsel for both parties.

[7]	Counsel for Appellant submitted that on 4th April 2011 the State Counsel was present at the hearing stage and that the State was the complainant in the case before Magistrate's Court. After refusing the adjournment the learned Magistrate did not call upon the Appellant to adduce evidence in court.

[8]	Counsel for Respondent submitted that a dismissal is synonymous with an acquittal. He further submitted that the Magistrate was correct in not accepting the insufficient excuse put forward as to the absence of the key witness when the matter was on for hearing.
[9]	Further the Counsel submitted even if the court is satisfied that there is some basis for the appeal, the court needs to give consideration to the interest of Justice and even if the case is sent back to the Magistrate's Court, it would further delay and that there is no guarantee that the witness will be located.

[10]	In the case of State v Agape Fishing Enterprises (2008) FJHC19; HAA 011.2008 (15 February 2008) Justice Goundar said in his judgment;

"The granting of an adjournment is a matter of discretion. The discretion must be exercised judicially so that the rights of the parties are not defeated and that no injustice are done to one or other of the parties (see, McCahill v State, Criminal Appeal No. 43 of 1980; Chand v State, Criminal Appeal No. AAU0056 of 1999S)."

[11]	In the instant case in the Magistrate's Court on 4/4/2011 Counsel for the Prosecution was present in court and asked for an adjournment as the only eye witness could not be located.

[12]	Further the Counsel for Prosecution has informed court that they have taken reasonable steps to locate the witness. It is obvious that the Prosecution could not locate the witness as it had passed years after the incident occurred.

[13]	In his order the learned Magistrate has said…... 'Court suspects whether if adjourns this matter, the witness could not be located in the next date…'.

[14]	In this case the learned Magistrate has not made any inquiry from the Counsel for the Prosecution, what steps they have taken to locate the witness. No inquiry was made from the Prosecution of the possibilities of locating the witness if an adjournment is granted. Therefore I do not find any basis on the face of the court record for the learned Magistrate to have cast doubt as to the impossibility of locating the witness.

[15]	The refusal by the learned Magistrate to grant an adjournment has not been made in the proper exercise of judicial discretion. Therefore the 1st ground of appeal succeeds.

[16]	Furthermore after disallowing the application for adjournment, it became incumbent upon the learned Magistrate to have called upon the Prosecution to offer evidence in support of the charges. The learned Magistrate was in error when he decided to acquit the accused without affording such an opportunity for the Prosecution. Therefore the ground No. 2 succeeds.

[17]	Counsel for Respondent submitted that even if the court is satisfied that there is some basis for this appeal, the court needs to give consideration to the interest of Justice. He urged the court to consider that the incident occurred on 6/4/2003 well over 8 years ago. Counsel further submitted that if the matter is sent back to the Magistrate's Court that there would be further delay and no guarantee that the witness could be located. Counsel for Respondent further urged to consider the interest of Justice test and public interest test as applied in case of The State v Rehan Ali Suva High Court Criminal Appeal No. HAA 56 of 2010.

[18]	In Archbold Criminal Pleadings 2010 at page 1154 it is stated:

"The decision whether to order a retrial requires an exercise of Judgment, involving consideration of the public interest and the legitimate interests of the defendant. The former was generally served by the prosecution of those reasonably suspected on available evidence of serious crime, if such prosecution could be conducted without unfairness to, or oppression of, the defendant. The legitimate interests of the defendant would call for consideration of the time which has passed since the alleged offence and any penalty already paid".

[19]	The charge against the Respondent is serious and it is in the interest of the public that a new trial is ordered. Counsel for the Prosecution informed court that the eye witness has been located and she is currently living in Solomon Islands and that she has agreed to avail herself to give evidence in court.

[20]	I bear in mind that the incident occurred in April 2003. However the Magistrate's Court would consider the period of delay if the need arises at the end of the trial.

[21]	Hence the appeal is allowed and I order that the case be remitted back to the Magistrate's Court for re-trial. The learned Magistrate is directed to hear the case expeditiously.

Priyantha Fernando
JUDGE

At Suva
03/08/2011.