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State v Prakash [2012] FJMC 64; Criminal Case 68.2010 (24 April 2012)

IN THE MAGISTRATE'S COURT AT TAVEUNI

Criminal Case No: 68 of 2010

STATE

V

DHIRENDRA PRAKASH

Detective Constable Mr. Farmen appeared for the prosecution.
Mr. Vere is for the accused.

Ruling on Judgment

1. When this matter was called yesterday before me, the court was informed by the accused's counsel that trial was conducted by His Worship Resident Magistrate Mr. Lakmal Wickramasuriya and it was fixed for the judgment and it was never delivered. Mr. Vere further said there are lots of inconsistencies between police statements and the victim's evidence and he wish to adopt the proceedings before me and judgment may be delivered by me. Mr Vere requested that boat will be leaving for Suva tomorrow afternoon and judgment may be delivered before that. Then the court fixed this matter for judgment today.

2. The accused is charged with Assault Occasioning Actual Bodily Harm: Contrary to the section 275 of the Crimes Decree No.44 of 2009

3. When I am preparing the judgment, it transpired that this case was heard on 23 of November 2011by the trial magistrate. Two witnesses, namely Maya Wati and Constable 2926 Farmen, were called. Then, the prosecution moved that another date be given to call another two witnesses and the defence had not shown objection for it. The court granted adjournment and continuation of hearing was set on 19-12-2011. But on the next date the prosecution again asked a date and defence objected that application. Then, court gave final date for continuation of hearing on 23-01-2012. On that day, there was no court sitting due to bad weather. Both, the prosecution and the defence were also absent. Registry issued notice of adjournment of hearing (NOAH) on 26-03-2012. The prosecution was present and the accused did not present again NOAH issued on him. On 23-04-2012 the accused came and made this application.

4. On careful perusal of the case record, this court cannot find who the trial Magistrate was in this case. If my thinking was correct that Resident Magistrate Mr. Lakmal Wickramasuriya is no more in the Fijian judiciary and had left this judiciary in April 2011. This trial was begun in November 2011 and trial Magistrate cannot be Mr. Lakmal Wickramasuriya. Trial Magistrate could be His Worship Resident Magistrate Mr. Thusahara Rajasinghe or someone. But exact trial judge cannot be ascertained but it is seen the trial judge is currently in the judicial service.
5. This trial is amidst of the prosecution case. The prosecution has not closed yet, but the defence made half-hearted application to give judgment. It is really not a No case to answer application by the defence.
6. Section 178 of the Criminal Procedure gives power to make no case to answer for the defence. It says;
"178. If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused."
7. The prosecution has not closed the evidence in support of the charge. I therefore hold that defence's application is premature and has no right to make such a kind of application amidst of the prosecution evidence.

8. I note the trial judge is exist in the judiciary that he had taken part of evidence and he must have seen the demeanour of witnesses. To the interest of justice, if the trial judge is no more in the judiciary this court can consider the judgment after conclusion of the prosecution's evidence. In the light of that prosecution has not closed their case this court cannot entertain no case to answer application. If the trial judge is available, he is the best person to deliver the judgment or proceed with the trial as this court had not taken iota of the evidence.

8. Therefore, court officers to ascertain the trial Magistrate forthwith before the next date. I here by give them direction to maintain name roster of presiding magistrates and to put their each presiding time. It to be maintained eternally till Taveuni receives permanent magistrate court and this enables to trace the presiding magistrate as it is very hard to trace by hand writing of the magistrate, when time goes.

9. I make following orders;

a) Judgment was not considered as the defence application is premature.

b) Case to be continued for hearing before trial Magistrate.

c) Mention to fix a hearing date.

Delivered on 24th April 2012 at Taveuni, Fiji Islands

Sumudu Premachandra
Resident Magistrate- Taveuni