IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM168 of 2011

BETWEEN:

THE STATE
Applicant/Appellant

AND:

FILIMONE JALE
Respondent

Hearing: 21 October 2011
Ruling: 31 October 2011

Counsel: Mr. L. Fotofili for State
 Mr. J. Rabuku for Respondent

JUDGMENT

[1] The State applies for an enlargement of time to appeal against the acquittal of the respondent by the Nasinu Magistrates' Court on 27 May 2011. The application was filed on 30 August 2011, that is, two months after the statutory 28 days appeal period had expired.

[2] The application is opposed by the respondent. At the hearing, I invited submissions on the substantive appeal and informed the parties that I would proceed to deliver my judgment on the substantive appeal if I am convinced that leave should be granted.

[3] The respondent was charged on 15 February 2011 with one count each of burglary and theft. At the time, he was serving an imprisonment sentence in an unrelated case. The charges alleged that the respondent, on 29 November 2010, entered into the Post Fiji Mail Center as a trespasser and stole 20 registered articles and $5000.00 worth of phone cards. The respondent entered not guilty pleas to the charges and the case was adjourned to 15 March 2011 for disclosures. On 15 March 2011, full disclosures were served and the case was fixed for trial on 27 May 2011.

[4] On 27 May 2011, the police prosecutor informed the court that his witnesses were not present and he asked the learned Magistrate for another trial date. The respondent objected saying he had brought his witnesses and that this was his last pending case.

[5] The learned Magistrate acquitted the respondent by giving the following reasons:

"This case is for hearing today. But Prosecution is not ready for hearing. None of the Prosecution witnesses are present today. Under Section 170 of the Criminal Procedure Decree 2009, the Prosecution did not give any excusable reasons for absence of the witnesses. The Prosecution failed to adduce evidence against the accused. I act under Section 166(2)(a) and 178. I dismiss the charge against the accused. Accused is acquitted and discharged. (I consider no items have recovered)."

[6] The two grounds of appeal are:

(a) The learned Magistrate failed to exercise judicial discretion when determining the Application of the Summary Prosecutor to vacate the trial date because of the absence of the State's witnesses and therefore the learned Magistrate erred in law and in fact in acquitting the Accused Filimoni Jale.

(b) That the learned Magistrate erred in law and in fact in acquitting the Accused Filimoni Jale pursuant to section 166(2) of the Criminal Procedure Decree 2009.

[7] At the hearing, counsel for the State abandoned the second ground and proceeded with the first ground only.

[8] Counsel for the State submits that the learned Magistrate had not exercised his discretion judiciously by not making any enquiry as to why the witnesses were not present and that he failed to consider the seriousness of the charges before acquitting the respondent.

[9] Counsel for the respondent submits that the prosecutor did not provide good cause for an adjournment in the Magistrates' Court and that the learned Magistrate had not erred in acquitting the respondent.

[10] Whether to grant or refuse an adjournment is a matter that requires exercise of the court's discretion. In Macahill v. R [1980] FJCA 1; Crim. App. No 43 of 1980 (30 September 1980) the Court of Appeal held that the grant or refusal of an adjournment is a matter of law and of the exercise of judicial discretion requiring a balancing of the interests of the accused, with the overall interests of justice.

[11] The reason the State offers to explain the two month delay in filing the appeal is, that enquiries had to be made with the police regarding witnesses non-attendance at the trial. Enquiries revealed that although the subpoenas were dispatched to the Valelevu Police Station for service, they were not served on the witnesses due to the Crime Writer being on leave at the same time. 

[12] Counsel for the respondent points out that the reason advanced by the State does not constitute good cause for the late appeal or for an adjournment.

[13] While I accept that the State has failed to show good cause for the late appeal, or for an adjournment in the Magistrates' Court, the test for leave to appeal out of time or for an adjournment, is the overall interests of justice.

[14] In fairness to the learned Magistrate, the Magistrates' Courts are often criticized for delays and too readily acceding to adjournments. The case was set for trial within commendable time period of three months from the date of the charge. On the day of trial, the prosecution was disorganized and was not ready to proceed. The absence of witnesses and the prosecutor's inability to explain the absence led the learned Magistrate to refuse an adjournment and to acquit the respondent without hearing any evidence. There was no enquiry made by the learned Magistrate as to why the witnesses failed to appear in court. As a result, the respondent was acquitted without a trial.

[15] The charges, indeed, were serious. The respondent was accused of stealing registered mails. The victims were not only Post Fiji but all those recipients who never received their mails.

[16] In my judgment, the learned Magistrate should have directed his mind to the overall interests of justice. By not acceding to the request for an adjournment, the witnesses who were not summoned for the trial due to the negligence of the police were denied access to justice. Given that the case was only three months old, a short adjournment would have allowed the witnesses to be summoned and heard in court. The decision to acquit without hearing the witnesses resulted in an injustice to the State. 

[17] For these reasons, the refusal of adjournment was exercised without proper consideration of overall interests of justice.

[18] I grant leave to appeal out of time. The order of acquittal is quashed and the case is remitted to another Magistrate for a trial.

Daniel Goundar
JUDGE

At Suva
31 October 2011

Solicitors:
Office of the Director of Public Prosecutions for State
Office of Law Solutions for Respondent