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State v Sivaro [1996] FJHC 140; Haa0038j.1996s (26 August 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0038 OF 1996

Between:

STATE
Appellant

And

SULIASI SIVARO
Respondent

Mr. W. W. Clarke for the State
The Respondent in person

JUDGMENT

On 25 May 1994 the Respondent was acquitted without a hearing by the Magistrate’s Court at Suva (S.Temo Esq., Magistrate) on a Charge of being found in possession of 662.4 grammes of dangerous drugs contrary to section 8(b) and s41(2) of the Dangerous Drugs Act Cap. 114.

It is against this acquittal that the State appeals.

On 11 September 1995 a “final” hearing date was set for 11 October 1995. But on that date the prosecution was unable to proceed to hearing by adducing evidence as its main witnesses were absent (one was sick and two in Lau on tour) but the investigating officer was present.

The accused asked for “dismissal” of the charge in the absence of his counsel.

Instead of granting an adjournment or discharging the accused which he was empowered to do the learned Magistrate acquitted him under s210 of the Criminal Procedure Code. The ground he gave for doing so was that “no evidence has been tendered to support the charge”.

The following is the text of what the learned Magistrate said (quoting from Record) before acquitting the Respondent:

“1. On 11/9/95, both prosecutor and accused agreed for a FINAL hearing today i.e. 11/10/95.

2. Both parties were warned by the Court to have their case ready to proceed today.
   
3. However the prosecutor is not ready. He said one police witness is lying at home sick. No medical certificate given to verify the above.
   
4. Furthermore, two police witnesses are in Lau on tour of official duties. Only 1 prosecution witness is present today.
   
5. Prosecutor has openly conceded that he is unable to prove his case with only 1 witness.
   
6. The accused has asked for the charge to be dismissed.
   
7. Today is the final Hearing date. It is the prosecution’s duty to prove the accused’s guilt beyond reasonable doubt. To fulfill that further, witness ought to be called. Prosecution has only 1 witness present. He conceded that he cannot prove his case.
   
8. The charge against the accused is dismissed on the ground that no evidence has been tendered to support the charge. Accused is therefore acquitted of the charge. (Section 210 Criminal Procedure Code).
   
9. The leaves to be destroyed.”
   

The above is the background to the case. The appeal is upon the ground that the Resident Magistrate erred in law in refusing to adjourn the case to allow the prosecution to bring its witnesses to Court.

The issue for the Court’s determination is whether the accused should actually have been discharged and not acquitted.

The learned counsel for the State submitted that the Magistrate erred in law in refusing to grant on an adjournment. He said s210 of the CPC is wholly inappropriate in the circumstances of this case. He submitted that he could have applied s198 CPC which allows for, inter alia, “dismissal” of the charge as opposed to “acquittal”. He further argued that “technically” no date can be taken as “final” date and there is no provision for it in the CPC. He said that the refusal to grant an adjournment was not a proper exercise of his discretion. He stated that on several occasions the accused himself was not present and bench warrant has to be issued and this was the only time the prosecution applied for adjournment and it was refused.

Mr Clarke submits that the above reasons the case ought to be sent back to the Magistrate’s Court for retrial.

The Respondent said that he leaves the decision to Court.

This very issue has been dealt with by me in Crim. App. No. 41/96 STATE v LIVARIO RADREGA and DAVID LAL (Judgment just delivered). Therefore, instead of reiterating at length what I said there I make reference to that judgment of even date and briefly state the salient points pertaining to the issue before me.

I find that it was wrong on the part of the learned Magistrate to apply s210 to the facts and circumstances of this case. That section deals with “acquittal of accused person where to no answer” (marginal note) and where there is evidence adduced in support of the charge. Here, although one witness was present, no evidence was adduced. It was not even a case of “withdrawal of complaint” under s201 of CPC to enable the Court to either discharge or acquit the Respondent. Hence, it was open to he learned Magistrate to adjourn the case under s202 CPC which provides:

“Before or during the hearing of any case, it shall be lawful for this Court in its discretion to adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective barristers and solicitors then present, . . . . “ (underlining mine for emphasis).

The granting of an adjournment is always the exercise of a judicial discretion. (ROBERT TWEEDLE MACAHILL and REGIMA, (Crim. App. 43/80 FCA). I am of the view that, in the exercise of his judicial discretion the learned Magistrate ought to have granted an adjournment to allow the State to muster its absent witnesses. For the learned Magistrate to say that it was a “final” hearing day and he will not budge from that means that he is fettering the exercise of the judicial discretion vested in him which he cannot do. This approach of his is certainly going to cause injustice to the parties. Not only that, this was a very serious offence involving a huge quantity of “drug” for which the law provides imprisonment for a few years and mandatory custodial sentence if the Respondent is found guilty and convicted. I find that if ever there was a case for the exercise of discretion it was this. On this aspect I refer to the following passage from the judgment of ATKIN L.J. in MAXWELL v KEUN (1928) 1 K.B. 645 at 653 C.A.:

“I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order, and it is, to my mind, its duty to do so.”

As stated earlier the Court has to consider whether in this case it was an appropriate, fitting and lawful exercise of the learned Magistrate’s discretion to acquit the accused.

A similar situation arose in the Hong Kong Court of Appeal case of ATTORNEY-GENERAL v TUNG YING CHUEN (1987) 2 HKC 349 at 350 and I find the following passage from the judgment of KEMPSTER J.A. pertinent to this case:

“One relevant factor must be the time during which an accused person has been kept in custody. Another must be the behaviour of the prosecution. We incline to the view that not only must someone sitting in a judicial capacity give an opportunity for the explanation of failure by any party to have a case ready, whether in relation to documents, the availability of witnesses or otherwise but also, unless, for example, a party has shown a contemptuous disregard of his obligation to further the expeditious discharge of business, for that party to put his house in order within a reasonable time.

We think, even without recourse to authority, that here the judge failed to do justice to the Crown. After all, the interests of the community have to be considered as well as those of the individual charged. Really there is only one way in which the judge’s discretion could properly have been exercised and that was to grant a further short adjournment to allow for provision to be made for the material witness to be brought before the court or for some explanation to be given for her absence.”

Here it is the Appellant’s contention that the learned Magistrate did not exercise his discretion in a judicial way. In R v BIRMINGHAM JUSTICES, ex.p LAM & ANOR (1983) 3 AER 23, WOOLF J said:

“When exercising the discretion which they have whether or not to adjourn cases, the justices have to exercise their discretion judicially. Doing that, they must be just not only to the defendants but to the prosecution as well. They must not use their powers to refuse an adjournment to give a semblance of justification for their decision to dismiss the prosecution when the refusal of an adjournment means that that is an inevitable consequences.”

I find that because it was a ‘final’ hearing date and the Prosecution was in difficulties to proceed with the case (because of the absence of some witnesses) it was not a proper exercise of judicial discretion in all the circumstances of this case to refuse the application. An adjournment ought to have been granted.

The appeal is allowed.

The order acquitting the Respondent is set aside. The case is remitted to the Magistrate’s Court at Suva for a continuation of the hearing before another Magistrate according to law.

D Pathik
Judge

At Suva
29 August 1996

HAA0038J.96S