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Vaqewa v State [2015] FJHC 47; HAA26.2014 (23 January 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO.: HAA 26OF 2014


BETWEEN:


ERONI VAQEWA
Appellant


AND:


STATE
Respondent


Counsels: Applicant in person
Mr. F. Lacanivalu for the Respondent


Date of Judgment: 23.1.2015


JUDGMENT


  1. This is an appeal against a discharge order entered against the appellant by the Lautoka Magistrate Court.
  2. The applicant was charged before the Lautoka Magistrate Court with count of Serious Assault to section 277 (b) of the Crimes Decree.
  3. The case was fixed for trial on 13.8.2013. On that day two police officers were present as witnesses. However the complainant was absent. The complainant was summoned through fax. However the learned Magistrate had recorded that it seems he may yet to receive it. The trial was re-fixed for 26.3.2014. On 26.3.2014 the Magistrate was sitting in Nadi Court and the case to be mentioned on 13.5.2014. On that day the trial was fixed for 29.7.2014.
  4. On 29.7.2014 at 2.00 p.m. it is recorded as follows:

“Prosecution says no witnesses summoned. Just received file today. It must be noted that trial date was fixed in May 2014, more than enough time to get witnesses ready.


In light of above, charges dismissed. Accused discharged. Prosecution at liberty to recharge when they are ready.”


  1. This appeal was filed on 4.8.2014 within time.
  2. The grounds of appeal against the discharge order are:
  3. Both parties have filed written submission.
  4. There is no record that the prosecutor made any application for withdrawal of the complaint. Therefore section 169 has no application to this case.
  5. The relevant section is section 171 of the Criminal Procedure Decree. According to Section 171 (1) (b) ‘If at the time or place to which the hearing or further hearing is adjourned if the complainant does not appear the court may dismiss the charge with or without costs.’
  6. In State v Sivaro [1996] FJHC 44; HAA 0038j.1996s (29 August 1996) Hon. Mr. Justice D. Pathik held that:

“The granting of an adjournment is always the exercise of a judicial discretion. (ROBERT TWEEDLE MACAHILL and REGINAM, (Crim. App. 43/80 FCA). I am of the view that, in the exercise of his judicial discretion the learned Magistrate ought to have granted an adjournment to allow the State to muster its absent witnesses. For the learned Magistrate to say that it was a "final" hearing day and he will not budge from that means that he is fettering the exercise of the judicial discretion vested in him which he cannot do. This approach of his is certainly going to cause injustice to the parties. Not only that, this was a very serious offence involving a huge quantity of 'drug' for which the law provides imprisonment for a few years and mandatory custodial sentence if the Respondent is found guilty and convicted. I find that if ever there was a case for the exercise of discretion it was this. On this aspect I refer to the following passage from the judgment of ATKIN L.J. in MAXWELL v KEUN


"I quitee the Court of A of Appeal ought to be very slow indeed to interfere with the discretion oflearned judge on such a question as an adjournment of a tria 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."


  1. In Rajesh Chand & Shailesh Kumar - v;- The State inaimAppeal Noal No. AAU0056 of 1999S [2001] 2 FLR 400 the Court of Appeal considered an appeal from a decision of the High Court to set aside an acquittalr a rl of journmeurnment in the Tavua Magistrates’ Co7; Court. urt. In that case, the prosecutor had four witnesses available (out of six who were to be called) and said that the case could be part-heard. The Magistrate refused to allow the case to proceed on a “part-heard” basis, saying that he had been instructed by the Chief Magistrate not to commence any part-heard cases “as it will cost us a lot of time and money.” The accused in that case was acquitted under section 210 of the Criminal Procedure Code. The High Court in considering the acquittal said that the Magistrate had failed to act judicially. He had not considered the previous history of the case, whether the summons had been served, or when the prosecutor became aware of the failure of the witnesses to obey the court’s process. The acquittal was set aside.

The Court of Appeal upheld this decision, saying, at page 402:


“The principals upon which an appellate court should act when reviewing a decision by a judge or magistrate to grant or refuse adjournment are well settled. The judge or the magistrate has a discretion as to the proper mode and time of trying an action. The exercise of that discretion should be interfered with by an appellate court only on exceptional circumstances. If it appears that the result of the order made in the court below is to defeat the rights of the parties altogether or to do an injustice to one or other of the parties, the appellate court has a duty to review such an order. Where the refusal of an adjournment would seriously prejudice a party, the application should be granted. If not granted, an appellate court will intervene if the discretion has not been exercised judicially or where its exercise was based on a wrong principle or resulted in an injustice: Maxwell - v - Keun (19 KB 645; G GSA Industries Pty Ltd. - v - NT Gas Ltd. 2L NSW0.<710.


In the present case we are satisfied that the Mrate ised his discretion on a wrong principle. It is a is apparepparent from his decision that we have reproduced above that he was primarily concerned at the administrative inconvenience and cost to the Court of part hearing the case, and the Magistrate then being required to return to Tavua to complete the hearing. This was not a proper reason for denying the State the right to have the charges heard and determined by the Court. We accept that financial considerations, and the convenience of the Court can be taken into nt in determining how and when a case is to be heard, but that can never over-ride the inte interests of justice. In the present case, if these factors were considered to be relevant, with the result that a part-hearing was inappropriate, the correct course was to adjourn the hearing to a date and time when it could be properly heard and determined. By refusing either to part-hear the case, or to adjourn it, the Magistrate’s decision resulted in an injustice to the Stat221;



  1. It was held in DPP v Vikash Sharma,h Prasad &Rakesh Lal [1994] 40 FLR 234 at 236 b236 by Hon. Mr. Justice Pain that:

“For clarity I record the formal steps that should be taken by a Magistrate in this situation.(After he refuses the prosecutor’s adjournment application) These rulings by him must be formally noted in the record:


(i) The application for an adjournment is refused;

(ii) The hearing then proceeds by the Magistrate calling upon the Defendants to plead (if they have not already done so) and then calling upon the prosecutor to begin;

(iii) If no evidence is called by the Prosecutor, then the Defendant or Defendants can be acquitted under Section 210 of the Criminal Procedure Code."
  1. This decision was cited with approval by Hon. Madam Justice Nizhat Shameem in Land Transport Authority v Sharma [2002] FJHC 112; HAA 0034J.2002S (16 May 2002) and State v Talawadua [2002] FJHC 148; HAA 0032J.2002S (16 August 2002) Hon. Mr. Justice Daniel Goundar also cited this decision in approval in State v Vatukatakata [2009] FJHC 185; Criminal Miscellaneous Case No.7 of 2009 (31 August 2009) and State v Kumar [2009] FJHC 266; HAA 056.2009 (30 November 2009).
  2. Considering all above the learned Magistrate had erred in exercising discretion. Therefore the order date discharging the appellant dated 29.7.2014, is set aside.
  3. Appellant to appear in Lautoka Magistrate Court on 3.2.2015 for a trial de novo.
  4. Appeal is allowed. Discharge set a side. Trial de novo ordered.

Sudharshana De Silva
JUDGE


At Lautoka
23rdJanuary, 2015


Solicitors: Appellant in person
Office of the Director of Public Prosecutions for Respondent

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