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State v Sovanivalu [2010] FJMC 23; Criminal Case 243.2008 (31 March 2010)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No:- 243/08

STATE

V

AQUILA SOVANIVALU,
JULIAN WAINIQOLO,
TOMASI WAINIQOLO

For Prosecution: - Insp. Daurewa
Accused: - Mr. Vosorogo

RULING

1. On 24th of February 2010 this case was fixed for hearing against the 1st, 2nd and 3rd Accused after the order of my predecessor Learned Magistrate for trial de nova date 6th of February 2009.
   
2. On 24th of February 2010, the prosecution made an application to vacate the hearing date and seek an adjournment for the hearing under section 170 of the criminal procedure decree as the prosecution failed to issue summons to their witness. Further Prosecution informed that police prosecution office has already dispatched the set of summons to their witness to the officer in charge of central police station but not aware about the service of the summons by the central police station.
   
3. The learned counsel for the accused objected for an adjournment and stated that this date is specifically designated for the hearing of this case. Further the learned counsel for the accused stated that if the prosecution is not calling their witness according to section 177 of the criminal procedure decree, invited the court to act under section 178 of the criminal procedure decree and dismiss the case and acquits that accused.
   

Legal background.

4. Section 170 (1) of the Criminal Procedure Decree, stated that "During the hearing of any case, the magistrate must not normally allow any adjournment other than from day to day consecutively until the trial has reached its conclusion, unless there is good cause, which is to be stated in the record. Accordinsection 170 (2) the) the good cause includes the reasonably excusable absence of a party or witness or of a party’s lawyer. Furthermore, section 170 (6) has stated that "If a case is adjd, the magistrate may not dnot dismiss it for want of prosecution and must allow the prosecution to call its evidence or to offer no evidence on the day fixed for the adjourned hearing, before adjudicating on the case". .
   
5. According to the said sections 170 (1), (2), (6), court has to exercise its discretion to granting of adjournment on good cause. Prakash J held in State v Atishwar Dayal (HAA0053/00L, 6th September 2000) "that the fact no formal application is made for an adjournment does not suggest, that the Magistrate has an unfettered discretion to dismiss. In my view there is more onerous burden for the magistrate to consider the issue of adjournment since he is given discretion to do so". Further Prakash J stated that Magistrate must direct his mind to the question of adjournment before he exercises his discretion to dismiss.
   
6. Justice Pain held, in The State v Samuela Nabainivalu (1997, FJHC 230;HAA0039d.97s, 4th September 1997), "the consideration of an application for an adjournment involves the exercise of judicial discretion. Relevant considerations would include, for instance, the reason for the application, the history of the prosecution (including previous adjournments), the conduct of the parties, the nature of the charge, the need for a charge to be heard within a reasonable time, and whether the ability of the state to prosecute or the defendant to present a defense will be materially affected or defeated by the granting or refusal of the adjournment.".
   
7. In R v Birminqham, Justice ex. P Lamb and Another (1983) 3 AER 23) Woolf J stated "when exercising the discretion which they have where or not to adjourn cases, the justice, have to exercise their discretion judicially. Doing that, they must not use their power to refuse an adjournment, to give a semblance of justification for their decision to dismiss the prosecution when refusal of an adjournment means, that is an inevitable consequence".
   
8. On 24h of February 2010, there was an application from the prosecution for an adjournment, stating that they were not able to serve the summons to their witness. Even the absent of formal application for adjournment from the prosecution, Magistrate has onerous burden to consider the issue of adjournment since he is given a discretion to do so as it was held in State v Atishwar Dayal (HAA0053/00L, 6th September 2000).
   
9. Prosecution officer was not aware about the statues of the service of summons and only informed that they have already dispatched the summons to the "Totonga Police station on 13th of January 2010. Its indicate that prosecution has taken steps to issue summons to their witness on 13th of January 2010 by dispatching them to Totonga police station for service of summons. The prosecution is not aware where the fault of not service of summons on their witness. I consider this as a good cause under section 170 (2) of the criminal procedure code. Furthermore, I infer that absent of prosecution witness on the 24th of February 2010 has a reasonable excuse. Wherefore, I am of the view that there is sufficient reason to grant an adjournment for the hearing.
   
10. In all these circumstance, I refuse the application of the learned counsel for the Accused to dismiss the charges under section 178 of the Criminal Procedure Decree 2009 and granted an adjournment for this case.
    
11. 28 days to appeal.
    

On this 31 day of March 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.