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State v Suguturaga [2002] FJHC 77; HAA0001J.2002S (19 April 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0001 OF 2002S
(Suva MC Case No. 354 of 2001)

Between:

THE STATE
Appellant

And:

SAMUELA SUGUTURAGA
Respondent

Hearing: 12^th April 2002
Judgment: 19^th April 2002

Counsel: Mr N. Nand for Appellant
Mr A.K. Singh for Respondent

JUDGMENT

The State appeals against the acquittal of the Respondent in the Suva Magistrates’ Court of the following charge:

Statement of Offence

OFFICIAL CORRUPTION: Contrary to section 106(a) of the Penal Code Act 17.

Particulars of Offence

SAMUELA SUGUTURAGA, on the 31^st day of March, 2000 at Nasinu in the Central Division, being employed by Fiji Police Force whilst on official duty, obtained $100.00 cash from UDAY RAJ s/o Shiu Sharan in order not to book his son DHARMENDRA RAJ s/o Uday Raj for traffic cases.

The grounds of appeal are as follows:

(i) The learned trial Magistrate erred in law and in fact in that he failed to act judicially in the exercise of his discretion to grant or refuse an adjournment.

(ii) That the learned trial magistrate erred in law and in fact in acquitting the defendants under section 210 of the Criminal Procedure Code, Cap 21 by failing to consider the prosecution evidence in its totality.

(iii) The learned trial Magistrate erred in law and in fact when he failed to take into consideration that the present case would not have proceeded in any way as there was a part-heard matter he was hearing on the said date.

The background to the case was that the Respondent’s charge was formally filed in court on 22^nd February 2001. On that day the case was called in court for the first time, before the learned Chief Magistrate. He pleaded not guilty, and another mention date was set, for the 9^th of March 2001, for disclosure. On the next mention date, the 23^rd of March 2001, another mention date was requested, on the ground that defence counsel was abroad. The matter was adjourned to the 6^th of April 2001. On that day, a hearing date was set for the first time, for the 17^th of July 2001.

On the 17^th of July the prosecution asked for an adjournment on the ground that disclosure had not been completed and the prosecution was not ready to proceed. New hearing dates were then set for the 4^th and 5^th of December 2001. On the 4^th of December, the defence was ready to proceed. Counsel for the prosecution then said, “One of my key witnesses is in Kosovo. I’m ready to proceed on a part-heard basis.”

The defence objected citing section 202(2) of the Criminal Procedure Code, and asked for the charge to be dismissed. Counsel for the prosecution then said:

“I am ready to proceed part-heard. I have 2 witnesses here, i.e. Inspector Camaitoga and Cpl. B. Singh. 8 other witnesses are not here. 4 of the civilian witnesses are not here, because they have changed address and have left no forwarding address. 1 witness is serving in Kosovo. He left in October 2000 and he will be back January 2002. Summons could not be executed on the 2 other witnesses because they could not be located. One was on leave. No explanation was given to me on the other accused.”

Later she said, “I made a mistake. There are 5 civilians and 5 police officers. There are 10 witnesses altogether.”

The defence then submitted that the prosecution had been given 4 months to prepare for the case, that the Respondent was on half-pay because of the case, and that the defence was ready to proceed.

The learned Chief Magistrate then ruled as follows:

“In my view there is no good reason to grant an adjournment. Prosecution had 4 months to prepare its case. It did not do so. The prosecution being an institution, has the resources to organise itself and bring its witnesses to Court. Going on leave is no excuse. Also, it should send out its officers to look for the witnesses. In this case, it appeared they did not do so. The application for an adjournment is denied.”

The prosecution then conceded it could not make out a prima facie case, and the Respondent was then acquitted pursuant to section 210 of the Criminal Procedure Code.

The grounds of appeal

The first ground of appeal is that the Chief Magistrate failed to act judicially when he refused the application to adjourn. State Counsel submits that the learned Chief Magistrate failed to consider the seriousness of the charge, or the public interest in favour of prosecution, in his decision to refuse the adjournment. Counsel for the Respondent submits that the prosecution in the lower court, failed to show good cause for the adjournment, and that the adjournment was refused for valid reasons.

The principles guiding the grant or refusal of an adjournment, are well-settled. As the Fiji Court of Appeal said in Robert Tweedie McCahill (Criminal Appeal No. 43 of 1980) the granting of an adjournment is a discretionary matter, with which an appellate court will not interfere unless it is satisfied that the discretion was not exercised judicially, and the rights of the parties were thereby defeated altogether.

Recently in Rajesh Chand & Shailesh Kumar -v- The State Criminal Appeal No. AAU0056 of 1999S, the Court of Appeal considered an appeal from a decision of the High Court to set aside an acquittal after a refusal of an adjournment in the Tavua Magistrates’ Court. In that case also, the prosecutor had four witnesses available (out of six who were to be called) and said that the case could be part-heard. The Magistrate refused to allow the case to proceed on a “part-heard” basis, saying that he had been instructed by the Chief Magistrate not to commence any part-heard cases “as it will cast us a lot of time and money.” The accused in that case was acquitted under section 210 of the Criminal Procedure Code. The High Court in considering the acquittal said that the Magistrate had failed to act judicially. He had not considered the previous history of the case, whether the summons had been served, or when the prosecutor became aware of the failure of the witnesses to obey the court’s process. The acquittal was set aside.

The Court of Appeal upheld this decision, saying, at page 4, 5:

“If it appears that the result of the order made in the court below is to defeat the rights of the parties altogether or to do an injustice to one or other of the parties, the appellate court has a duty to review such an order. Where the refusal of an adjournment would seriously prejudice a party, the application should be granted. If not granted, an appellate court will intervene if the discretion has not been exercised judicially or where its exercise was based on a wrong principle or resulted in an injustice: Maxwell -v- Keun (1928) 1 KB 645; GSA Industries Pty Ltd. -v- NT Gas Ltd. 24 NSWLR 710. In the present case we are satisfied that the Magistrate exercised his discretion on a wrong principle. It is apparent from his decision that we have reproduced above that he was primarily concerned at the administrative inconvenience and cost to the Court of part hearing the case, and the Magistrate then being required to return to Tavua to complete the hearing. This was not a proper reason for denying the State the right to have the charges heard and determined by the Court. We accept that financial considerations, and the convenience of the Court can be taken into account in determining how and when a case is to be heard, but that can never over-ride the interests of justice. In the present case, if these factors were considered to be relevant, with the result that a part-hearing was inappropriate, the correct course was to adjourn the hearing to a date and time when it could be properly heard and determined. By refusing either to part-hear the case, or to adjourn it, the Magistrate’s decision resulted in an injustice to the State.”

I have set out the Court of Appeal’s reasons for the decision to uphold the High Court, at some length because there are some marked similarities between that case and this one. In this case also, the Chief Magistrate refused to hear the case partially, or to adjourn to another day. However, there are also some important differences between the cases.

Firstly, the history of the case shows that there was a delay of almost one year from the date of the alleged offence, to the date the Respondent first appeared in court. Secondly, from the “first call” of 22^nd February 2001 the matter was adjourned once for disclosure, once because defence counsel was out of the country, and once (at the first hearing date) because the prosecution was not ready and had not complied with full disclosure. By the time the case was called next for hearing, on the 4^th of December 2001, more than 9 months had lapsed from the date of first call. It is not known whether, on the 17^th of July 2001, the prosecution knew that a witness was in Kosovo. If they knew, then one wonders why they agreed to a date in December when the witness was still out of the country. If they did not know, then they ought to have known because all witnesses ought to have been subpoenaed that day.

A third factor, is that the prosecution failed to tell the Chief Magistrate why the missing witnesses were crucial to the State’s case, and why (if they had been summoned) they had failed to attend. From the court record, it appears that summons could not be served on two witnesses. What was the position for those witnesses who were summoned and failed to attend? The court record shows a lamentable lack of preparedness on the part of the prosecution. Indeed it shows that the prosecution were not sure who their witnesses were, and how many were expected to give evidence. And this, after 9 months of court fixtures.

Given these factors, it is not surprising that the Chief Magistrate called upon the prosecution to prove its case (which the prosecutor conceded they could not do). An adjournment to another date would not have carried any certainty that the prosecution would then have all its witnesses and would be ready to proceed.

Further, unlike the case of Ramesh Chand (supra), the Chief Magistrate’s reason for his decision was not the administrative inconvenience to the court, but the prejudice to the accused, and the disregard for court processes by the prosecution witnesses. I do not think, that he erred in the exercise of his discretion.

Section 202(1) of the Criminal Procedure Code (as amended by the Criminal Procedure Code (Amendment) Act 1998) provides:

“During the hearing of any case, the magistrate must not normally allow any adjournment other than from day to day consecutively until the trial has reached its conclusion, unless for good cause, which is to be stated in the record.”

Section 202(2) provides:

“For the purpose of subsection (1) good cause includes, but is not limited to, the reasonably excusable absence of a party or witness or of a party’s legal practitioner.” (My emphasis)

The intention of the legislature was obviously to put the burden on the person requesting an adjournment, or a part-hearing, to show good cause. Further, the absence of a witness has to be as a result of a reasonable excuse.

In this case the prosecutor had to show good cause, and reasonable excuse. She failed to show either. She must have known earlier of the witness in Kosovo, but failed to obtain a date suitable for him. Further there can be no reasonable excuse for the absence of four police officers who had been summoned, or for the failure of the prosecution to explain the absence of the other witnesses. Although it is true that the Chief Magistrate did not refer to the seriousness of the charge, or the public interest in proceeding to hear cases of corruption against police officers, the seriousness of the charge does not appear to have influenced the police witnesses or the prosecution to be ready to proceed to trial on the first or the second hearing date set. Further, I am not persuaded that the Chief Magistrate would have come to any different a conclusion if he had considered the nature of the charge.

In these circumstances I do not accept that the learned Chief Magistrate erred in refusing to adjourn the case any further. This ground fails.

The second ground of appeal is an extension of the first. It is that the Chief Magistrate erred in acquitting the Respondent. At the hearing of this appeal, State Counsel conceded that the Chief Magistrate had been procedurally correct in calling on the prosecution to prove its case. Indeed, there are now many authorities (DPP -v- Vikash Sharma 40 FLR, 234) which refer to the proper procedure to be followed after the refusal of an adjournment. At the hearing of this appeal I was told by counsel for the Respondent that the only two witnesses available, were the interviewing officers of the Respondent, and that the interview, being exculpatory, would not have assisted the prosecution at all. The court record shows that the prosecution opted against calling any evidence. Where the prosecution decides to call whatever witnesses it has available, the Magistrate cannot proceed to acquit under section 210 of the Code, until the prosecution has called all its evidence for the day and then asks for an adjournment. In many cases, a fresh application for an adjournment, after the evidence of several witnesses, may well lead to a decision to adjourn to another day for continuation, because the Magistrate will then be able to assess the public interest in not acquitting forthwith, having heard some of the evidence.

However, in this case the prosecution chose not to call its witnesses and the Chief Magistrate’s decision to proceed to an acquittal was therefore procedurally correct. This ground also fails.

The third ground of appeal was not argued and there is no evidence before me that there was another part-heard matter fixed for hearing before the Chief Magistrate on the same day.

Conclusion

For the reasons given in this judgment, this appeal is dismissed. Counsel for the Respondent asked for costs. However I consider that the lodging of this appeal was neither an abuse of the prosecutorial discretion, nor was frivolous or vexatious. I decline to order costs.

Nazhat Shameem
JUDGE

At Suva
19^th April 2002