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DPP v Singh [2017] FJMC 41; Traffic Case 319.2013 (10 March 2017)

IN THE MAGISTRATE’S COURT AT LABASA

CRIMINAL JURISDICTION

Traffic Case No. 319 of 2013

DPP

v

ALVIN SINGH

For the Prosecution : Ms Vavadakua. A

For the Accused : Mr Lomaloma. P

Ruling : 10 March 2017

RULING

1. This case was for trial on 16 December 2015 and on that day the Prosecution make an application to amend the charge. According to the Prosecutor the amendment is not a major change, it on explanation only and not going to prejudice the accused. She has not closed her case and the application is within time.
   
   2. The Defence Counsel strongly objected to the application for amendment as it will be unfair to the accused as it will be a substantial amendment and prejudicial to the accused.
      
   3. The parties were directed to file submission. The Defence filed his submission on 4 April 2016. The Prosecution filed his submission on 17 October 2016.
      
   4. The guiding section on the present application is section 182 of the Criminal Procedure Act which state;-
      

“(1) Where at any stage of trial before the close of the case for the prosecution, it appears to the court that the charge is defective (either in substitution or in form) the court may make such order for the alteration of the charge, either by-

(a) amendment of the charge; or
(b) by the substitution or addition of a new charge.

as the court thinks necessary to meet the circumstances of the case”

5. In State v Ram [2010] FHC 451; HAC 124. 2008S (1 September 2010) where Temo. J noted that in traditional context prosecutors are always entitled to amend charges at any stage of the proceedings, before it closes its case. This is applied to Magistrate Court procedure in express terms as stipulated in section 182 of the Criminal Procedure Decree 2009.
   
6. The above section of the law and case authority clearly set out the consideration that should be made in the present application. The Prosecution has not closed her case as the trial proper has not started. Therefore according to the above provision of the law and case authority the application for amendment of charge should be granted.
   
7. The defence in their submission is arguing that this case has been delayed by the Prosecution and therefore cause prejudice to the Accused. Considering the law in this area, such application is only delaying the case and cause prejudice to the accused as amendment to the charge could be made, plea recorded, and trial proceeded as schedule.
   
   8. The Prosecution submit that there will be no prejudice to the accused as the delay was not only cause by the Prosecution. The Accused is represented by counsel and full disclosures has been served. The amendment does not shift the burden of proof from the Prosecution and the amendment is still on the same section of the law. The trial has not started and the defence will not be embarrassed.
      
   9. I have considered the Defence objection to the Prosecution application for amendment together with the submission filed by the respective parties. I have take note of the law and case authority and in my ruling, I will allow the Prosecution application to amend the charge.
      

28 days to appeal

C. M. Tuberi

RESIDENT MAGISTRATE