AND:
PUBLIC PROSECUTOR
Defendant
Date: 9th August, 2001 at 2:15 p.m
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Coram: Before Mr Justice Oliver A. Saksak
Clerk: Ms Cynthia Thomas
Counsels: Mr Saling N. Stephens for the Applicant
No Appearance for or by the Public Prosecutor
ORAL JUDGMENT
The appellant appeals against the Order of the learned
Senior Magistrate made on 15th Februa01. The Court below had
d
exercised its discretion under section 139 of the Criminal Procedure Code
Act [CAP.136] as amended by Act No. 13 of 1984. It reads in section 139(1)
as follows:-
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“1. Repeal subsection (1) and substitute the following
–
“Where it appears to the court
that the charge is defective, either iher in substance or inform, the Court may
make such
order for the alteration of the charge or by the substitution or
addition of a new charge, as the Court thinks necessary to
meet the
circumstances of the case……….”
It appears
from the Record of proceedings that the learned Senior Magistrgistrate had
exercised his discretion under the
above provision. The special
circumstances of the case is that it originates from a proceedings in the
Island Court in
which the Court having found the appellant to be the father
of the child of the relationship, ordered him to pay maintenance
until the
child attains 18 years of age. He complied only in part and fell into
arrears which have accumulated to date.
In my view that was the situation
that justified the making of the order for the amendment of the charge. That
was necessary
to do justice to the case.
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That being
so, I am satisfied that the learned Senior MagisMagistrate had exercised his
discretion correctly. For that
reason it is my view that this appeal has no
merits. Accordingly I dismiss the appeal.
DATED at
Luganville, this 9 day of August, 2001.2001.
BY THE
COURT
OLIVER A. SAKSAK
Judge
