IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAM 010 OF 2001

BETWEEN:

THE STATE
APPELLANT

- and -

KANITO MATAGASAU
RESPONDENT

Mr. Josaia Naigulevu - for the Appellant
Mr. Vodo Tuberi - for the Respondent

JUDGMENT

Background:

1. This Matter concerns an Incident in the Magistrates’ Court at Suva on 1st February 2001. On that day the Chief Magistrate dismissed a Criminal Charge which had been brought against the Respondent. The Magistrate claimed to act pursuant to Section 198 of the Criminal Procedure Code.

Grounds of Appeal:

(1) that the Magistrate erred in Law in wrongly construing and applying the provisions of Section 198 Criminal Procedure Code.

(2) that the Magistrate failed to exercise his discretion to adjourn judicially or property in all the circumstances of the Case.

The History and Charge before the Magistrate:

2. The Respondent had been charged for an offence of Aiding Soldiers in an Act of Mutiny contrary to Section 56(a) of the Penal Code (Cap.17). The Particulars alleged that Kanito Matagasau had on 2nd November 2000 aided a Sergeant Bonafasio (a Member of the Fiji Military Forces) and others to commit an act of Mutiny at the Fiji Military Headquarters. By any description this was a serious and significant Charge.

3. The matter first came before the Magistrate on 18th January 2001 when the Charge was read and explained to the Respondent (Defendant) and a plea of Not Guilty entered. Despite objections the Magistrate allowed bail and adjourned the matter to 1st February 2001 (no time stated) for Mention and Disclosure (of Documents).

The Hearing on 1st February 2001:

4. The 1st of February hearing bears the briefest of Notes on the Record. The Accused was present with his Counsel. The Prosecution was absent. The Defence applied to have the Charge dismissed pursuant to Section 198 of the Criminal Procedure Code, on the ground that the Prosecution (Complainant) was not present in Court. The Magistrate, without any apparent further enquiry or investigation, proceeded to dismiss the Charge. The Magistrate made no mention of the serious nature of the Charge and one can only assume he did not consider that aspect. There had been no earlier adjournments or absences. The Matter was for ‘Mention’ not only for ‘Hearing’.

Appeal Ruling:

5. In the circumstances, the Magistrate plainly failed to properly exercise his judicial discretion. He acted unfairly and against the public interest.

The Appeal is allowed.

The Case is to be referred back to the Chief Magistrate for the Hearing to continue.

[Peter Surman]
JUDGE OF THE HIGH COURT

11th April, 2001