IN THE MAGISTRATE’S COURT AT NASINU

Criminal Case No. 477/2007

DPP

-v-

PARVESH ANAND SHARMA

For Prosecution: Mr Sovau
For the accused: Ms. M Tarai

RULING ON WANT OF PROSECUTION

1] The Accused is charged with following offence.

CHARGE:

FIRST COUNT

Statement of Offence [a]

OBTAINING MONEY BY FALSE PRETENCES: Contrary to Section 309 (a) of the Penal Code, Cap 17.

Particulars of Offence [b]

PARVESH ANAND SHARMA f/n SHIU RAM SHARMA on the 6th of May, 2006, at Nasinu in the Central Division, with intent to defraud obtained $850.00 cash from GAJEN PRASAD f/n SUK RAM by falsely pretending that he was in a position to arrange for transfer of the taxi base of taxi registration number LT 5440 from Nasinu Express Taxi Base to Raiwaqa Taxi Base.

SECOND COUNT

Statement of Offence [a]

FRAUDULENT CONVERSION: Contrary to Section 279 (1) (B) of the Penal Code, Cap 17.

Particulars of Offence [b]

PARVESH ANAND SHARMA f/n SHIU RAM SHARMA on the 6th of May, 2006, at Nasinu in the Central Division, fraudulently converted for his own use $850.00 in monies the property GAJEN PRASAD f/n SUK RAM.

2] Case was instituted on 05th April 2007. Charged was read to the accused on 20-06-2007 and the accused pleaded not guilty to the charge. Full discourses were served on 11-07-2007. First hearing was set on 14-08-2008. The prosecution was ready to proceed with the trial but the accused moved a date to seek legal aid advice. Second hearing date was set on 24-03-2009. It was vacated for no reason and reason is not in the case record. Then hearing was set for two days after several adjournments on 6th and 7th May 2010. Again hearing dates were vacated without mentioning any reasons. Meantime the accused sought permission of court to go abroad. This was opposed by the DPP. Court delivered Ruling allowing the accused application. The court again fixed 10th and 16th of August 2011 for hearing the matter. On the hearing date Ms. Koto moved that hearing be vacated as she wanted to consult the complainant and several points to be considered. The defence objected to this application. The court noted “It seems the prosecution is still gathering the evidence against the accused after six years. I considered facts before me. I grant final adjournment. I vacate the hearing”. On 27th January 2012 the DPP said that they are considering whether to proceed or not. Matter then fixed for hearing on 22-06-2012. In between date was given whether to withdrawal of charges that was on 02-04-2012. On 28-02-2012 Ms. Koto informed the court that the DPP wish to proceed with the case. Hearing was confirmed. On the hearing date 22-06-2012, the Ms. Koto the handling officer was this file was absent. Mr. Sovau appeared and asked that hearing is vacated as officer of carriage of this file conducting a two weeks trial before High Court. They said that is a good cause to adjourn this case. The defence vehemently objected to the application for adjournment. Defence Counsel said that no witnesses have come and there are several DPP counsels and they can handle this case if Ms. Koto is booked. Application is adjourned for Ruling which I consider now.

Law

3] In section of the Criminal Procedure Decree 2009 grants power to adjourn cases on “good cause”.

“170. — (1) 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 there is good cause, which is to be stated in the record. 

(2) For the purpose of sub-section (1) "good cause" includes the reasonably excusable absence of a party or witness or of a party’s lawyer. 

(3) An adjournment under sub-section (1) must be to a time and place to be then appointed and stated in the presence and hearing of the party or parties, or their respective lawyers then present. 

(4) During the adjournment of a case under sub-section (1), the magistrate may — 

(a) permit the accused person to leave the court until the further hearing of the case; or 
(b) commit the accused to prison; or 
(c) release the accused upon his or her entering into a bond (with or without sureties at the discretion of the magistrate) conditioned for his or her appearance at the time and place to which the hearing or further hearing is adjourned. 

(5) If the accused person has been committed to prison during an adjournment the adjournment may not be for more than 48 hours. 

(6) If a case is adjourned, the magistrate may not dismiss it for want of prosecution and must allow the prosecution to call its evidence or to offer no evidence on the day fixed for the adjourned hearing, before adjudicating on the case. 

(7) A case must not be adjourned to a date later than 12 months after the summons was served on the accused unless the magistrate(for good cause which is to be stated in the record)considers such an adjournment to be required in the interests of justice.” (Emphasis is mine)

4] Granting of adjournment on hearing date is a matter of discretion of the court. His Lordship Justice Goundar in the case of State v Agape Fishing Enterprises (2008) FJHC19; HAA 011.2008 (15 February 2008) said in his judgment;
 
“The granting of an adjournment is a matter of discretion. The discretion must be exercised judicially so that the rights of the parties are not defeated and that no injustice are done to one or other of the parties (see, McCahill v State, Criminal Appeal No. 43 of 1980; Chand v State, Criminal Appeal No. AAU0056 of 1999S)” (Emphasis is mine)

5] In Golden west Enterprises Ltd v Pautogo [2008] FJCA 3; ABU0038.2005 (3 March 2008) Fiji Court of Appeal held; 

“This Court has every sympathy with the wish of trial courts to maintain a tight rein on proceedings and to ensure expeditious hearings. This is particularly so if a trial date has been set or if the history of a matter reveals a litany of delays particularly caused through adjournments. Adjournments by consent between the parties can indicate a lack of preparation and attention to the need for litigation to be conducted in a timely manner. The Court is aware that in too many instances adjournments are or may be sought as a matter of course and that due to the Court’s schedule and a mounting number of cases, adjournments may too readily be gained. It is understandable that as an antidote to this, a Court may ultimately be loath to grant an adjournment where otherwise a trial is ready to proceed and the Court has set a firm date after a number of adjournments. At the same time, Courts must be careful to ensure that all the circumstances must be borne in mind and that ultimately expedition is not the sole measure. Justice and fairness are essential features of the consideration for a request for an adjournment.” (Emphasis is mine)

6] In Sahim v State [2007] FJHC 119; HC CA No HBM 32 of 2006 (30 March 2007) His Lordship Justice Gerard Winter observed Magistrates Court trials;

“The Magistrates Court is especially designed to administer swift summary justice. It is for that reason that provisions such as Section 202 of the Criminal Procedure Code (as amended) provide that only short adjournments  might be justified and then only for good cause such as a reasonable and excusable absence of a party or witness or legal practitioner.” (Emphasis is mine) 

7] This court admits the cases are to be adjudicated and disposed on merits. But it is to be noted; normally Magistrate court is a busy creature unlike other courts. Apart from the date to day cause lists, this court normally fix three or four hearing per day. Truly, this court’s diary is fully booked for this year and if hearing date was vacated, case should be postponed till next year. The burden to prosecute the accused timely manner is lies on the prosecution. 

8] Applications for vacation of hearing date are often made in this court by the prosecution. It is regretted sometimes single DPP officer is allocated for both courts. Mostly the officer in carriage is not that DPP officer. He or she stands just to take the date does not know head or tail of the cases. 

9] Nasinu is highly populated urban area on the island. It is officially designated as a "Town" (and was formally incorporated as such in 1999) despite its population (87,446 at the 2007 Census). Further Nasinu is the most populous municipality in Fiji, having overtaken that of Suva (the capital), and is one of Fiji's fastest-growing towns. Its land area is the largest of any municipal area in Fiji, and more than twice that of Suva. But Lamentably the DPP has not allocated separate State Counsel for handle Nasinu matters. If the DDP engage State Counsel for Nasinu these things would not emerged. Why I say so this is the most populated area in the country and has high institution rate of criminal cases. High Court of Fiji also extend jurisdiction some of cases and DVRO application are also instituted at a high rate. If the court does not manage the case flow, system will collapse drastically. This court personally experienced for some extended jurisdiction cases no DPP counsel appears even for consideration of bail. There is presumption of granting bail and prosecution must rebut the presumption. Without rebutting the presumption the court is put into trial to give bail invariably. 

10] For instance case the Ms Koto appeared on 27-01-2012 and hearing date was given on 22-06-2012, by that time 28-02-2012 date was given to the prosecution whether to proceed with the charge or not. On 28-02-2012 Ms. Koto appeared personally and said that State will proceed with the charges laid against the accused and hearing date was confirmed. Ms. Koto personally appeared and took the trial date both instances. But what happened in the trial date is unacceptable. Ms. Koto is the officer in carriage of this file. But she did not appear and their reasonable excuse is that officer in carriage is having two weeks trial in High Court. When this case was fixed for trial on 27th January 2012 in this court, why Ms Koto did not inform that she is booked for two weeks trial in High Court and she cannot appear or date is not suitable for her? A reasonable and excusable absence of a party or witness or legal practitioner is a ground for adjournment. But "double booking" is not a ground to give an adjournment. Whether she appeared in High Court or any other superior court is not a ground for adjournment. Instead court noted no witnesses were summoned. This court is mindful that Nasinu Court is a lesser mortal than High Court, but it should have due respect. The State did not have intention to proceed with the trial whatsoever. I cannot see this is a good cause to adjourn the matter and if this allowed this will be bad precedent. I therefore refuse grant an adjournment. 

11] What will happen next? The State did not produce any evidence against the accused at the trial date. Though court did not refuse the adjournment as extempore, the prosecution failed to adduce single iota of evidence against the accused.

12] In State v Singh [2008] FJHC 340; HAA001.2008 (11 November 2008) His Lordship Justice Anthony J Sherry observed; 

"The learned Magistrate was entitled to refuse the adjournment. This was not a particularly complex case, as suggestion by the Prosecution. In fairness to all parties concerned, the Prosecution should have been ready to proceed. In this case the Prosecution was unable to explain why there had been a six month delay in clarifying the outstanding legal issues. ....

In his decision the learned Magistrate appears to have correctly observed that the accused's constitutional right to have the matter determined within a reasonable time and the public interest to have prosecutions resolved quickly by proceeding to trial on the first or second hearing date should be maintained...when the Prosecution was not ready to proceed on the trial day, the learned Magistrate acquitted the accused because of lack of evidence."

13] The ground for adjournment is untenable. I decline to grant adjournment. The State did not produce case to answer. I acquit the accused.

14] I therefore make following orders;

a) Adjournment is refused.
b) the accused is acquitted and discharged under section 178 of the Criminal Procedure Decree

15] 28 days to appeal.

On this 10th day of September 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate