IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAA 31 of 2014

BETWEEN :

JOHN WILLIAM MICHEL
APPELLANT

AND :

THE STATE
RESPONDENT

Counsel : Ms. Nasedra for the Appellant 
Ms. L. Latu for the Respondent 

Date of Hearing : 18th of March 2015,
Date of Judgment : 17th of August 2015. 

JUDGMENT

1.	The appellant files this appeal against the conviction of the learned Resident Magistrate of Ba dated 26th of February 2014. The grounds of appeal against the conviction and the sentence are that;

i.	The learned trial Magistrate erred in law by adjourning the tiral for over a period of 3 years without a good cause, 
ii.	The second learned trial Magistrate erred in law and in fact by failing to exercise its judicial discretion to declare the trial de-novo and start the trial afresh due to the second trial Magistrate not hearing the prosecution witnesses giving evidence to be able to decide on the demeanour and credibility of the prosecution in the interest of justice and in fairness to the appellant before proceeding to a ruling, 
iii.	The second learned trial Magistrate erred in law by failing to direct himself on the evidence of recent complaint, 
iv.	The second learned trial Magistrate erred in law and in fact by failing to direct herself that the charges against the appellant, in some counts, were more than 13 years old and with the victims being of tender age could not have reasonably and possibly recalled the said alleged incidents and its date, month and year and the alleged acts that occurred, 
v.	The second learned trial Magistrate erred in law and in fact by failing to direct herself that the appellant was charged under the Penal Code and the law required corroboration or evidence of consistency for a conviction, 
vi.	The second learned trial Magistrate erred in law and in fact by failing to direct herself that each of the alleged charges against the appellant must have been decided separately and the finding of guilt in one count does not apply to the other counts. 
vii.	The second learned trial Magistrate erred in law and in fact by failing to properly direct herself to the evidence that the appellant was out of the country under UN mission when the alleged count 1 and 3 was alleged to have taken place, 

2.	Upon being served with this petition of appeal, the Respondent appeared in court. Justice De Silva had directed the parties to file their respective submissions. The hearing was conducted before Justice De Silva on 18th of March 2015. The counsel for the Applicant and the Respondent consented and agreed for me to deliver the judgment of this appeal based on the submissions filed by them before Justice De Silva. Having carefully considered the petition of appeal, and the respective submissions of the parties, I now proceed to pronounce my judgment as follows. 

3.	The Appellant was charged for five counts of Indecent Assault contrary to Section 154(1) of the Penal Code and two counts of Attempted Rape contrary to Section 151 of the Penal Code. The Appellant pleaded not guilty for all of these counts, wherefore, the matter was set down for hearing before the learned resident Magistrate, Mr. U. Ratuvili (as he then was) on the 24th of June 2010. The Prosecution presented their evidence. Meanwhile, the learned Magistrate was promoted to as the Chief Magistrate and a new Magistrate replaced him in the Ba Magistrate court. The accused gave evidence on oaths and called two more witnesses for the defence before the second Magistrate. Having concluded the defence case, the second learned Magistrate in her judgment found the Appellant guilty for seven counts as charged and convicted accordingly. Subsequent to the judgment, the second learned Magistrate was also transferred and replaced by another new Magistrate. Having heard the mitigation, the third learned Magistrate sentenced the appellant for a period of 3 years with 2 years of non- parole period. The appellant has now appealed against the conviction. 

4.	Having considered the background of the appeal, I now turn onto the first ground of appeal, which states the learned trial Magistrate erred in law by adjourning the trial over a period of 3 years without a good cause. 

5.	Upon perusal of the case record of the Magistrate's court, (hereafter referred as the case record), it appears that the Appellant was first produced before the learned Magistrate in Ba on the 29th of July 2009. The first learned Magistrate commenced the hearing and concluded the prosecution case on 24th of June 2010. Subsequently, this case has been adjourned on numerous occasions and finally the defence case was concluded on the 15th of March 2012 before the second learned Magistrate. The learned Magistrate delivered her judgment on 26th of February 2014. 

6.	Justice Madigan in Baba v State ( 2015) FJHC 156;HAA040.2013 ( 6 March 2015) having discussed the prolonged delay of the proceedings in the Magistrate court, found that; 

"There can be no doubt that this Court has the inherent jurisdiction to stay proceedings below on the basis either of inordinate delay or of abuse of process. The law on delay is well settled. It is a power of this court that must be exercised only in the most exceptional circumstances and only if there is no other remedy available that would alleviate any prejudice caused to the accused by such delay.

 It is accepted that the very unfortunate progress of this matter occasioned a delay to the proceedings, but these proceedings are now at an end, save as to the outcome of this appeal. The delay was systemic and as much the fault of the accused as it was of the State.

The accused was representing himself by choice, and the fact that he did not make a stay application at any stage of the trial becomes academic. It is certainly not a matter for one of the ten Magistrates dealing with the case to grant a stay of proceedings on his or her own motion". 

7.	In view of the findings of Justice Madigan in Baba v State ( supra) I find that the four Magistrates who dealt with the matter in the magistrate court had no jurisdiction to stay the proceedings on the ground of delay. It was the Appellant, who should have made such an application in the High Court. However, the proceedings in the Magistrate court has now come to an end and as Justice Madigan observed above, to consider the reasons of delay in that proceedings is now only a matter of academic purpose. Accordingly, it is my opinion that the first ground of appeal has no merit. 

8.	The Second ground of appeal is that the second learned trial Magistrate failed to exercise her discretion to have a trial de novo, which prevented the learned Magistrate to decide the evidence of the prosecution on the demeanour and credibility of the prosecution witnesses. 

9.	Section 139 of the Criminal Procedure Decree has stipulated the procedure on continuation of evidence partly recorded by one magistrate and partly by another, where it states that; 

i.	Subject to sub-sections (1) and (2), whenever any magistrate, after having heard and recorded the whole or any part of the evidence in a trial, ceases to exercise jurisdiction in the case and is succeeded (whether by virtue of an order of transfer under the provisions of this Decree or otherwise), by another magistrate, the second magistrate may act on the evidence recorded by his or her predecessor, or partly recorded by the predecessor and partly by second magistrate, or the second magistrate may re-summon the witnesses and recommence the proceeding or trial.

ii.	 In any such trial the accused person may, when the second magistrate commences the proceedings, demand that the witnesses or any of them be re-summoned and reheard and shall be informed of such right by the second magistrate when he or she commences the proceedings.

iii.	The High Court may, on appeal, set aside any conviction passed on evidence not wholly recorded by the magistrate before whom the conviction was had, if it is of opinion that the accused has been materially prejudiced, and may order a new trial". 

10.	Justice Madigan in Baba v State (supra) has discussed the application of Section 139 of the Criminal Procedure Code in an inclusive manner. Where his Lordship held that;

"The section quite clearly states the second magistrate shall inform the accused person of his right to have any witnesses reheard and it is also quite clear from the record that the "second" magistrate did not do so in this case. This occurred at the time that the accused, by this time being represented, was asking for a trial de novo. As Goundar J. said in Jale Baba HAC 135.2010:

"The learned Magistrate has discretion to either proceed with the case on the record of the previous Magistrate, or de novo. This discretion must be exercised after weighting (sic) 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."

Such sentiments may well be relevant on the reading of s.139(1) alone however s139(2) would appear to fetter that discretion when the accused is "demanding" that some witnesses be reheard. The subsection refers to that demand as a right to be informed to the accused person by the second magistrate. When there is no record of the Magistrate have told the accused of this right then there must be a presumption then that any application for a trial de novo be granted. Even if the second magistrate does inform the accused of his right to have witnesses recalled, then it being a right, it is a demand that cannot be refused.

The discretion can only come into play if the accused is informed and doesn't make an application or demand to have witnesses recalled, in which case it is a discretionary decision of the second magistrate on his own motion whether to act on the record or hear the trial de novo".

11.	Accordingly, it appears that the discretion given to the second or succeeding Magistrate to have a trial de novo or act on the evidence already recorded by the previous Magistrate under Section 139 (1) must be exercised subjected to the right of the accused person to demand that the witnesses or any of them be re-summoned and re heard. The second Magistrate must inform the accused person of his right to demand to re-summon and rehear the witnesses pursuant to Section 139 (2). 

12.	Section 139 ( 3) has further provided that the High Court could set aside any conviction entered by the subsequent Magistrate relying on the evidence recorded by his predecessor Magistrate, if the High Court is in opinion that the accused has been materially prejudiced and may order for a re-trial. 

13.	According to the case record of this instant case, it appears that the second learned Magistrate has not explained the Appellant of his right as enunciated under Section 139 (2) of the Criminal Procedure Decree. The learned Magistrate has erroneously exercised her discretion to rely on the evidence recorded by her predecessor without explaining the Appellant of his right to demand the witnesses or any of them to be re-summoned or re-heard. 

14.	Having found that the learned Magistrate has failed to inform the Appellant of his right as stipulated under Section 139 (2), I now draw my attention to determine whether the conviction entered by the learned Magistrate on the evidence partly recorded by her predecessor has materially prejudiced the Appellant. 

15.	It is found that the Appellant was not informed of his right by the second learned Magistrate before she continued the hearing on 15th of March 2012. Apart from that, the learned Magistrate has stated in her judgment that she cannot make comment on the credibility of the witnesses of the prosecution as they have given evidence before her predecessor Magistrate. Accordingly, it appears that the learned Magistrate has formed her conclusion of the guilt on the Appellant, without considering the credibility of the witnesses of the prosecution. Hence, it is my opinion that the Appellant has materially prejudiced due the finding of the learned Magistrate of his guilt on the evidence partly recorded before her predecessor and partly recorded by her. 

16.	In view of the reasons discussed above, it is my opinion that the second ground of appeal must succeed. I accordingly quash the conviction entered in the court below on 26th of February 2014. 

17.	Before I draw my attention to determine whether the court should order for a re-trial pursuant to Section 139 (3) of the Criminal Procedure Decree, I will proceed to consider the remaining grounds of appeal advanced by the Appellant. 

18.	It appears that the third and fourth grounds of the appeal are founded on the evidence presented by the prosecution during the course of the hearing. In view of the learned Magistrate's conclusion that she could not make comment on the credibility of the witnesses of the prosecution, I find that the learned Magistrate was not in a position to properly and accurately consider the evidence of recent complain and credibility of the three victims in their evidence. Hence, I find the third and fourth grounds of appeal must succeed. 

19.	The fifth ground of the appeal is that the learned Magistrate erred in law and failed to direct herself that the law requires evidence of corroboration or evidence of consistency for a conviction as the charges were framed under the Penal Code. The Criminal Procedure Decree came into force on 1st of March 2010. Section 301 (1) of the Decree states that;

"A court hearing any proceeding for an offence which was commenced prior to the commencement of this Decree may apply the provisions of this Decree if no judgment has been made in the case and no sentence has been imposed on the offender prior to the commencement of this Decree". 

20.	The hearing of this matter was commenced on 24th of June 2010 and the Judgment was delivered on 26th of February 2014, which was after the commencement of the Criminal Procedure Decree. Hence, Section 129 of the Decree, which deals with the corroboration of evidence on sexual offence, is applicable for this hearing. I accordingly find the fifth ground of the appeal has no merit and dismiss it accordingly. 

21.	It appears that the learned Magistrate has considered the elements of the offences as charged separately. She has then applied and discussed the evidence with these elements of the offences in her judgment. Therefore, I do not find the sixth ground of appeal has any merits and dismiss it accordingly. 

22.	The seventh ground of appeal is founded on the contention that the learned Magistrate was not properly directed herself on the evidence that the appellant was out of the county during the time as alleged in first and second counts, which I find is misconceived. The learned Magistrate has considered in her judgment the evidence presented by the Appellant in his defence and other defence witnesses including the passport of the Appellant. I accordingly dismiss the seventh ground of appeal. 

23.	Having quashed the conviction entered against the Appellant under second ground of appeal, I now proceed to determine whether the court could order for a re-trial pursuant to Section 139 (3) of the Criminal Procedure Decree. 

24.	Justice Waidyarathne in Josateki Cama and others v The State (Criminal Appeal No AAU 61 of 2011) has expounded the scope of the discretionary power of the court to order for a retrial in a comprehensive manner. His Lordship observed that; 

"It had been held that the exercise of the discretion to order a retrial requires the consideration of several factors, some of which may favour a retrial and some against it, 

Public interest to prosecute offenders without terminating criminal proceedings due to a technical error by the trial judge and the availability of sufficient evidence against the accused are factors that could be considered in favour of an order for a new trial. Considerable delay between the date of offence and the new trial and the prejudice caused to the appellant due to non-availability of evidence at the new trial may fevour an acquittal of the appellant". 

25.	The Fiji Court of Appeal in Azamatula v State ( 2008) FJCA84; AAU0060.2006S (14 November 2008) held that the power of a High Court judge to order a retrial is discretionary and it must always be exercised judicially. The Fiji Court of Appeal further held that; 

"As was said by the Privy Council in Au Pui-kuen v Attorney-General of Hong Kong ([1980] AC 351) 'no judge exercising his discretion judicially would require a person who had undergone this ordeal once to endure it for a second time unless the interests of justice required it' (see also Ting James Henry v HKSAR [2007] HKCFA 71). The overriding consideration in the exercise of the power is the interests of justice (Aminiasi Katonivualiku v. The State (CAV 0001/1999S; 17 April 2003).

In the case of Au Pui-kuen the Privy Council went on to say that the exercise of discretion to order a retrial requires the consideration of a number of factors, some of which may weigh in favour of a retrial and some against. The Privy Council said that the interests of justice are not confined to the interests of either the prosecutor or the accused in any particular case. They also include the interests of the public that people who are guilty of serious crimes should be brought to justice and should not escape it merely because of a technical blunder by the judge below. One factor to be considered is the strength of evidence against an accused and the likelihood of a conviction being obtained on a retrial. The weaker the prosecution case, the less likely a retrial would be ordered. Another factor would be identifiable prejudice to an accused whilst awaiting a retrial such as might cause him to be unable to get a fair retrial. It has also been said that a retrial should not be ordered to enable the prosecution to make a new case or to fill in any gaps in evidence (Togara v. State (by Majority) [1990] FJCA 6)".

26.	The prosecution case is founded on the evidence of three victims, who are related to the Appellant. I am mindful of the dates on which these alleged offences took place, and the time the Appellant was served his sentence so far. The Appellant has already spent 16 months of his 3 years of imprisonment period.

27.	However, it is my opinion that the strength of the prosecution case and the interest of justice have outweighed the prejudicial impact on the accused if an order of retrial is granted. Hence, I find a retrial against the Appellant would serve the interest of justice. I accordingly quash the conviction of the Appellant and order a retrial in the Magistrate's court. 

28.	30 days to appeal to the Fiji Court of Appeal. 

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
17th of August 2015

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