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R v Tauetia [2005] TVHC 10; Criminal Case 2 of 2005 (20 May 2005)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
Criminal Appellate Jurisdiction

Case No: 2/05

Between:

R
Appellant

v

Kelemene Tauetia
Respondent

BEFORE THE CHIEF JUSTICE

Isala Isala for appellant
Stephen Barlow for respondent

Hearing: 16 May 2005
Judgment: 20 May 2005

Judgment

The respondent was charged with one offence of defilement of an idiot female. The offence was alleged to have been committed in Vaitupu in December 2002 but it appears from the judgment of the learned Senior Magistrate that it first came before his court on 8 November 2004 when the appellant entered a plea of not guilty.

On that date the prosecution indicated it wished to call eight witnesses all of whom were on Vaitupu except for one who was studying overseas. The case was adjourned to Funafuti for mention on 17 November 2004 when the court was to be advised whether the prosecution intended still to call that witness. At the adjourned hearing the prosecution informed the court that it did not need to call the missing witness and so the court arranged a trip to Vaitupu to hear the case on 9 December 2004.

When the case was called, the respondent was present with his lawyer and the prosecution was represented by a police sergeant. However, the prosecution applied for an adjournment on the grounds that no witness summons had been served, two witnesses were not available in any event because one was on Funafuti and the other was sick and the prosecutor needed time to seek legal advice from the Attorney General. The defence indicated that they were ready to proceed and wished to do so.

Having considered the matter, the Senior Magistrate dismissed the charge under section 185 of the Criminal Procedure Code and the respondent was released.

The prosecution now appeals on the following grounds:

1. That the learned Senior Magistrate erred in law in dismissing the charge against the respondent under section 185 of the Criminal Procedure Code whereas that section only applies if the complainant or his advocate does not appear after having had notice of the time and place appointed for the hearing; and
2. That the Senior Magistrate erred in law by not exercising his judicial discretion under section 185 of the CPC to adjourn the hearing of the case to some other date whereas there were reasonable grounds by the prosecution to justify the reasons for applying for an adjournment.
   

Counsel for the respondent raises a preliminary objection that the appeal has been filed out of time and, no application for leave to appeal out of time having been made, should be dismissed.

Section 272 of the Criminal Procedure Code requires a petition of appeal to be presented "to the magistrate’s court from the decision of which the appeal is lodged within 14 days of the date of the decision appealed against". In this case the decision under section 185 was made on 9 December 2004 and the notice of appeal was not lodged with the registry until 21 January 2005. It is thus clearly out of time.

Counsel for the appellant explained to the Court that the case file was submitted to the Attorney General’s office on 24 December 2004 but it contained no copy of the Senior Magistrate’s order. Application was then made to the Senior Magistrate for a copy and it was not received by the appellant until a further week had elapsed. By then it was the second week of January 2005.

Counsel suggests that the 14 days commences from the date the sealed judgment was delivered to the appellant and cites as an authority the decision of this court in Teagai v Eliu Nelu case number 2/04. However that confuses the rules in civil and criminal cases. The former are governed by the civil Rules of Court under which time begins to run only on the date the judgment or order is sealed (and not, it should be added, when it is served on the parties as counsel appears to be suggesting).

In a criminal appeal under section 272, time runs from the date of the decision. There is no requirement that the decision should be sealed.

The section gives the magistrate’s court and the High Court the power to enlarge the period of limitation for good cause and so counsel also applies for the time to be extended. The reason he gives is that counsel having conduct of the appeal was not present in the magistrate’s court and so he needs extra time for the presentation of the petition.

I cannot accept that is a proper reason to extend the time in this case. As soon as this decision was reported to the Attorney General, decision should have been made about appeal. If the intention was to appeal, notice should have been lodged immediately. On the times given by counsel, it would have already been out of time but a prompt application for extra time would have been hard to resist.

Counsel also asks the Court to give leave because the appeal involves a question of law of unusual difficulty. I cannot agree that the point of law raised in this appeal is one of unusual difficulty but I accept it should be resolved and for that reason grant leave to appeal out of time.

Section 185(1) provides:

"If in any case which a magistrate’s court has jurisdiction to hear and determine, the accused person appears in obedience to the summons ... at the time and place appointed in the summons for the hearing...then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear by himself or by his advocate, the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of the case until some other date ..."

Counsel for the appellant points out that the terms of the section only give the magistrate power to dismiss the charge if the complainant or his advocate do not appear. In the present case, the complainant was the police officer who signed the complaint. He was not present but he was represented by the police prosecutor.

Counsel for the respondent challenges that the officer is covered by the term ‘advocate’ in the section. He points out that section 185(2) provides:

"The expression "advocate" in this section ... shall in relation to a complainant include a public prosecutor."

Both advocate and public prosecutor are defined in section 2 of the CPC:

" ‘Advocate’ means any legal practitioner entitled to practice before the High Court or any court subordinate thereto under any law for the time being in force.

‘public prosecutor’ means any person appointed as such under section 71, and includes the Attorney-General and any other legal officer, police officer or other person acting under the direction of the Attorney-General."

The power under section 71 is:

"The Attorney-General may appoint any advocate or police officer to be a public prosecutor either generally or for the purposes of a particular case."

Counsel finally points to section 73:

"In any trial ... before a magistrate’s court, if the proceedings have been instituted by a police officer, any police officer may appear and conduct the prosecution notwithstanding the fact that he is not the officer who made the complaint ..."

Mr Barlow accepts that the officer who appeared on Vaitupu may have been a police prosecutor under sect 73 but he could not have been a public prosecutor because he was not appointed as such by the Attorney General. By section 185(2), the term ‘advocate’ in the preceding subsection embraces a public prosecutor but it goes no further. At best, the sergeant on Vaitupu was a police prosecutor entitled to appear by section 73. He was not appointed by the Attorney General as a public prosecutor and so he did qualify as an advocate under the extension provided by section 185(2).

In those circumstances, the complainant did not appear himself or by his advocate and so the magistrate was correct to use the power under section 185 to dismiss the charge.

Counsel for the appellant advised the Court that, since the CPC was passed in 1963, no appointments have been made under section 71. Thus, if the respondent’s interpretation is correct, there have been many cases where officers have appeared who were not entitled to do so. That fact, although remarkable, does not affect the issue. The question for the Court is whether the submission of the respondent is correct in the present case.

I am satisfied that it is not. The answer lies in the meaning of the definition of public prosecutor in section 2. Mr Barlow reads it as restricting public prosecutor to any person appointed under section 71. The remainder of the definition, he suggests, simply lists some of the people who may be so appointed.

If that interpretation is correct, the words after the comma are superfluous - in that they include people who are already acting under the Attorney General’s direction - and, to an extent, meaningless – as it would mean that the Attorney General could appoint himself.

I am satisfied that the words after the comma in the definition are intended to extend the definition so that, in addition to appointees of the Attorney General, it includes any person who is acting under the Attorney General’s direction even though not specifically appointed.

The result is that the learned Senior Magistrate did not have the power to act under section 185 because the complainant had appeared by his advocate in the person of a public prosecutor.

I shall return to the consequences but move next to consider the second ground of appeal that the magistrate failed properly to exercise his discretion.

Counsel for the appellant has cited a number of authorities relating to the discretion of the court both to dismiss a charge and to allow an adjournment. There can be no challenge to the principles cited in those cases. Any court must exercise its discretion on proper principles considering the justice of the situation whilst bearing in mind that justice applies to the prosecution as much as it does to the defence.

The general rule is than appellate court will not interfere with the exercise of discretion by a lower court unless it has not been exercised judicially or was based on a wrong principle or that it resulted in an injustice.

If a decision appears likely to result in injustice to one side, it may be reviewed but this refers to an injustice in the particular circumstances of the case the court is considering. Just because the decision may result in one side losing is not unjust if the exercise of the discretion which caused that result was made on proper principles in the relevant circumstances.

In the present case, the Senior Magistrate gave a written ruling in which he set out the reason for his decision. The matters on which he based his decision were properly considered and showed a failure of the prosecution to carry out its duty in relation to the case before him. The facts he sets out are not challenge by counsel for the appellant. They reveal serious failure by the prosecution to ensure the case was ready for trial. Even the (unspecified) need to seek further advice from the Attorney General must be read against the admitted fact that there had been consultation with that office months before.

There is nothing in the record to suggest that the Senior Magistrate acted wrongly in the manner in which he exercised his discretion and there is no reason to interfere. The second ground fails.

What then is the result of the appeal? I have found that the circumstances did not give the Senior Magistrate the right to act under section 185 but, in a case such at this, where it is clear to the court that an application for an adjournment is made to cover the applicant’s failure to prepare for a trial that has been fixed and where the other side is ready to proceed, the proper course is to refuse the application.

The matters set out in the ruling of the Senior Magistrate show that, had he done so, the prosecution would have had to offer no evidence. In that case the magistrate would be entitled to acquit the defendant.

Whilst I have decided the first ground of appeal in favour of the appellant, I consider that, as the Senior Magistrate could have properly reached the same decision under different provisions, no substantial miscarriage of justice has occurred. Under the proviso to section 280 of the CPC, I dismiss the appeal.

Dated: 20th day of May 2005

CHIEF JUSTICE