IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 2936/87

REGINA

v

KAMLESH KHATRI
S/o Vraj Lal

DECISION

This is an application by Mr Semisi of the Officer of the Director of Public Prosecutions for the removal of this case for hearing in the High Court.

The application is made under s. 220 of the Criminal Procedure Code which provides as follows:-

“If before or during the course of a trial before a magistrates’ court it appears to the magistrate that the case is one which ought to be tried by the Supreme Court or if before the commencement of the trial an application in that behalf is made by a public prosecutor that it shall be so tried, the magistrate shall not proceed with the trial but in lieu thereof he shall hold a preliminary inquiry in accordance with the provisions hereinafter contained, and in such case the provisions of section 235 shall not apply.”

The accused is charged with the offence of arson contrary to section 317 (a) of the Penal Code in that “on the 21st day of October, 1987 at Lami in the Central Division, wilfully and unlawfully set “fire to the President Hotel building, the property of PRESIDENT HOTEL LIMITED.”

The accused’s first-appearance before the court was on 26th October, 1987 when he was released on bail and the case was adjourned to 30/11/87. On 30/11/87 accused elected tot be tried by the Magistrates Court and he pleaded not guilty to the charge. A hearing date was given for the 9th and 10th March, 1988. These dates were vacated and on 9th March, 1988 a new hearing date was given for 7th and 8th April, 1988.

On the 7th April, 1988 the present application was made.

Mr Semisi submitted that as a result of non compliance by certain police officers of the laid down procedures in matters of this nature, the docket did not reach his office in proper time and hence the DPP did not appear earlier to make the application.

He said that the charge is serious and the case involved damage to one of the largest hotels in Fiji to the tune of $300,000.00 and that the case is being “tenaciously” defended. He further stated that he gives his personal undertaking that priority would be given for the hearing of this case by the High Court.

Mr Lateef in opposition said that the DPP’s application is made under the second limb of s.220. He argued that it is not being made “before the commencement of the trial.” He said that the trial commenced on the 30th November, 1987 when the accused was arraigned when he pleaded not guilty. He said why should the accused suffer for the “administrative bungling”. He further stated that he agrees that his case is seious and so were some of the other cases of arson involving thousand of dollar of damage but more of them were taken to High Court. He said that there are no complicated legal issues in this case.

The issues for my determination are

a) whether the application is being made “before the commencement of the trial” (words used in s.220) and

b) if so, whether the circumstances of the case are such that it is “one which ought to be tried” by the High Court.

On issue (a) there is abundant authority to hold in the affirmative and I do so hold.

The question is: “When does the trial commence?’ In DIGBY AND OTHERS V DIGBY AND OTHERS 31 NZLR p. 1183 it was held; inter alia; that “trial of an action cannot be said to be any earlier that the day on which the case is called on for hearing, and the party present and ready to proceed”. In the course of his judgment DENHISTON, J said: …………. the question, then, is what is the trial of an action? In WALL V ROBERTSON (19 NZLR 65 at p.71) STOUT C J said,   “trial must mean that hearing at which “the rights of the parties are to be finally decided.” In any case, I am satisfied it cannot mean any date earlier than the day on which a case is called on for hearing, the parties or a party being present and ready to proceed . . . . . .  Mentioning a case and even fixing a day for its being heard would not be a trial.”

In GIBBS V GALBRAITH & ANOTHER (No, 2) 1935 NZLR p. 722 it was held that disposal of certain matters by the magistrate preliminary to the trial did not constitute commencement of the trial. It was there stated that these preliminary proceedings certainly would not be deemed part of the trial.

In SUPERMA, LTD V TENCON (1939) 2AER p. 427 at p.432 MORTON J said:- “. . . . the action came on for trial, but did not proceed to trial in the sense that the issues had to be tried and determined, because there was no defence on the record. In these circumstances,  . . . . . . this particular action has not proceeded to trial within the meaning of the rule, . . . .”

On issues (a) although I have cited from civil actions, I am of the opinion that the same observations are as much applicable to criminal cases.

The learned defence counsel argued that “commencement of the trial” is when the accused is arraigned and his plea is taken. In my opinion, the word “trial” in the context of section 220 has the meaning as attributed to it by for example some of the following rules of the Supreme Court (English) and with respect not as suggested by Mr. Lateef:-

“If, when a trial is called on, the plaintiff appears.” (or 36 or 31)

“Notice of trial shall be given before entering the trial.” (or 36 or 25) 

“Notice of trial shall state whether it is for the trial for the cause or matter or of issues therein: and the place or day for which it is to be entered for trial.” (or 36 or 40).

Under s.213 of our Criminal Procedure Code it is provided that “The prosecutor shall be entitled to address the court at the commencement of his case and the accused person or his barrister and solicitor shall be entitled to address the court at the commencement of the case for the defence.” (underlining mine). 

This provision in my opinion clearly indicates that the prosecutor addresses the court at the commencement of the trial within the meaning ascribed to these words hereabove; this section certainly has no reference to the occasion when plea was taken as in the present case.

In THE DIRECTOR OF PUBLIC PROSECUTIONS AND JOSUA TUIQAQA (CRIM APP NO 60/85 SUB CT OF FIJI) TUIVAGA CJ said, in a case involving an application similar to this, that – 

“Upon a proper construction of section 220 and 224 of the Criminal Procedure an application by a public prosecutor for a Preliminary Inquiry to be held can only be made successfully before the commencement of the trial . . . . . . .” (underlining mine)

On appeal to Fiji Court of Appeal (Crim App No. 2/86) KERMODE J A said

“He (referring to the Director of Public Prosecutions) would have been aware that the prosecutor, should have applied under s.220 before the trial began (underlining mine) to have the case heard by the Supreme Court.”

In my view both the above passages attribute to the words underlined the meaning ascribed to them earlier on by me hereabove based on the authorities I have cited. Here again by no stretch of the imagination can these words have reference to the time of taking the plea. 

As far as issue (b) is concerned, all the circumstances have to be taken into consideration RAMSAY V OLDHAM (1904) 23 NZLR 8 STENHOUSE V McCURDIE (1912) 31 NZLR 73). The power to stop summary trial under s. 220 is discretionary to be exercised upon a consideration of all the circumstances of the case (BANKS V HOLLINGSWORTH & ANOTHER (1891 – 4) AER REP P.1672. 
Certain guidelines in the application of this discretionary power are set out in the judgment of LORD ESHER MR in BANKS case (supra at p.415) as follows:-

“when an action is brought in the inferior court, it is not to be removed into the Superior Court unless it appears to the judge that it ought to be tried in a Superior Court, and not in the inferior court. From that it seems to me necessarily to follow that the judge, upon a consideration of all the circumstances of the case, and of the interests of all the parties and of justice, and of the public, has to determine whether the case ought to be tried rather in the Supreme Court than in the inferior court in which it was brought. If that be so, the judge must consider all the circumstances of the case; the amount in dispute, if very small, may show that the case ought not to be removed from the inferior court; the amount maybe small, yet the matter may be of a difficult and intricate nature, and the judge may think that to be a good ground for removing the case; and there might be many other circumstances proper to be considered, such as delay in trial. It is obvious, then, that, under this enactment the judge has to consider the whole matter, and to say whether the case ought, considering the interests of the parties and of the public, to be tried rather in the Superior Court than in the inferior court in which it was brought. If he thinks that it ought, he will give the defendant leave to remove the case; if he does not think so, he will refuse leave. All that is a matter for the discretion of the judge.”

BOWEN L J 416 said: “As the question whether an action is “fit to be tried” in a Superior Court is often a matter of opinion, and not a question of law, it follows that the judge is free to form his own opinion, and is free to exercise his discretion upon such opinion.”

In the above circumstances being of the opinion that the application by the Director of Public Prosecutions has been made “before the commencement of the trial” as required by s.220 of the Criminal Procedure Code and considering all the circumstances of this case, it is my view and I do so hold that the “case is one which ought to be tried” by the High Court.

In coming to the conclusion to which I have come I have been guided by the above-quoted passage from the judgment of LORD ESHER MR in BANKS V HOLLINGSWORTH (supra) and I also sought assistance from the case of STENHOUSE V McCURDIE AND ANOTHER (31 NZLR P. 73 AT P.26) and RAMSAY & ANOTHER V OLDHAM (23 NZLR p.8 at p.10).

In the exercise of my discretion the grounds on which the case ought to be tried by the High Court are these:-

a) This is an application by the Director of Public Prosecutions in accordance with the law; I am convicted he would not have made it had he not been serious about it and as soon as he discovered that these was some “administrative bungling” about the docket in this case he lost no time in coming to Court and intervening in the manner he has now done and has outlined to court the reason for his late application. Neither the DPP nor anyone else can be blamed for the administrative breakdown in communication except the police officers who are directly concerned with the docket and who should have known the correct procedure to be followed in matters of this nature.

I am bound to give due weight to DPP’s intervention which in my view is made in all sincerity. He is one who will know from his brief and the nature of his case whether this is a case in which he ought to make the application. I cannot glean from what I have before me that he has  any other motive than to see that in the interests of all concerned the case is tried by the High Court.

(b) The Director of Public Prosecutions has given an undertaking that he will facilitate an early hearing of this case in the High Court. For a high ranking officer to give such an undertaking cannot be lightly taken. This I consider a factor to be taken into account in the removal of the case.

(c) This is a case where the sentencing power of the Court is limited with provision to send to High Court for sentencing also there is a right of appeal to High Court. Although the appeal itself will not constitute a good ground for the removal, but looking a other reasons that I give the removal is desirable. (STENHOUSE V McCURDIE AND ANOTHER (supra).

(d) The extent of damage which is given as in the vicinity of $300,000.00 is a strong factor to betaken into account. On top of that it is damage caused to one of the largest hotels in Fiji. On those facts, difficult questions of law and mixed questions of law and fact could arise, and I realize that this ought not to be the sole ground (RAMSAY & ANOTHER V OLDHAM (supra). The nature of evidence could be such that, in the “interests of all parties and of justice, and of the public” (to use the words BANKS, supra) that the case ought to be tried in a Superior Court.

For the reasons given hereabove the Director of Public Prosecutions succeeds in his application that the case is one which ought to be tried by the High Court. 

That being the situations I cannot proceed with the trial and pursuant to the provisions of s.220 of the Criminal Procedure Code I shall hold a preliminary inquiry”.

D. Pathik
RESIDENT MAGISTRATE

12/4/88