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State v Intaz [2019] FJMC 70; Criminal Case 302 of 2011 (8 May 2019)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: 302/2011

STATE
V
MOHAMMED INTAZ
Counsel: Mr.S.Komaibaba (ODPP) for the State
Mr.A.Chand (LAC) for the Accused
Date of Hearing: 06^th of May 2019
Date of Ruling: 08^th of May 2019

RULING ABOUT DISCARGE /ACQUITTAL

1. The accused was charged with one count of Obtaining goods by False Pretence contrary to section 310(a) of the Penal Code and one count of Obtaining money by false Pretence contrary to section 309(a) of the Penal Code.
2. The prosecution made an application to withdraw the charges against the accused on 06^th May 2019 pursuant to section 169(2) (b) of the Criminal Procedure Act.
3. The counsel for the accused whilst agreeing to this application asked this court to acquit his client from this charge.
4. Both parties were given the opportunity to submit their arguments.
5. The counsel for the State submitted that the complainant in this case is bed ridden and hence they are withdrawing this charge.
6. The counsel for the accused submitted that this case is pending against the accused from 2011 even though the alleged offences occurred in 2007 and hence he need to be acquitted from this charge.
7. Section 169 of the Criminal Procedure Act states :

“169.-(1) The prosecutor, may with the consent of the court, withdraw a complaint at any time before a final order is made. (2) On any withdrawal under sub-section (1)–

(a) where the withdrawal is made after the accused person is called upon to make his or her defence, the court shall acquit the accused;

(b) where the withdrawal is made before the accused person is called upon to make his or her defence, the court shall subject make one of the following orders–

(i) an order acquitting the accused;

(ii) an order discharging the accused; or

(iii) any other order permitted under this [Act]269 which the court considers appropriate.

(3) An order discharging the accused under sub-section (2)(b)(ii) shall not operate as a bar to subsequent proceedings against the accused person on the basis of the same facts.

8. Section 201 of the Criminal Procedure Code is almost identical to Section 169 of the Criminal Procedure Act and states :

“201.-(1) The prosecutor may with the consent of the court at any time before a final order is passed in any case under this Part withdraw the complaint.

(2) On any withdrawal as aforesaid-

(a) where the withdrawal is made after the accused person is called upon to make his defence, the court shall acquit the accused;

(b) where the withdrawal is made before the accused person is called upon to make his defence, the court shall subject to the provisions of section 210, in its discretion make one or other of the following orders:-

(i) an order acquitting the accused;

(ii) an order discharging the accused.

(3) An order discharging the accused under paragraph (b)(ii) of subsection (2) shall not operate as a bar to subsequent proceedings against the accused person on account of the same facts. (Section substituted by 24 of 1950, s. 11.)”

9. In Sada Siwan HAA 050. 2008 Ltk., (29th August 2008), having examined the above provision in Criminal Procedure Code, his Lordship justice Gounder observed:

“"...an order made pursuant to section 201 (2) (b) is clearly discretionary. The law in relation to an appeal against the exercise of discretion is settled. The discretion will be reviewed on appeal, if the trial court acts on a wrong principle, or mistakes the facts, or is influenced by extraneous considerations or fails to take account of relevant considerations. In addition, if it should appear that on the facts the order made is unreasonable or plainly unjust, even if the nature of the error is not discoverable, the order will be reviewed ( House v The King (1936) HCA 40; 1936 55 CLR 499, Evans v Bartlam (1937 AC 473) . Failure to give weight or sufficient weight to the relevant consideration will also vitiate the exercise of a judicial discretion but only if that failure is central to the exercise of the discretion. ( Charles Osenton & Co. v Johnston (1942) AC 130." The law in relation to an appeal against the exercise of discretion is settled. The discretion will be reviewed on appeal, if the trial court acts on a wrong principle, or mistakes the facts, or is influenced by extraneous considerations or fails to take account of relevant considerations. In addition, if it should appear that on the facts the order made is unreasonable or plainly unjust, even if the nature of the error is not discoverable, the order will be reviewed (House v The King [1936] HCA 40; (1936) 55 CLR 499, Evans v Bartlam [1937] AC 473). Failure to give weight or sufficient weight to relevant considerations will also vitiate the exercise of a judicial discretion but only if that failure is central to the exercise of the discretion (Charles Osenton & Co. v Johnston [1942] AC 130)”.

10. High Court further said that in exercising the discretion pursuant to section 201 (2) (b) the court must not only take into account the interests of the prosecution but those of the accused as well.
11. The Supreme Court in Mototabua v State [2011] FJSC 10; CAV0005.09 (12 August 2011) noted that the High Court in the case of Sada Siwan (supra) had applied the correct approach when deciding on the discretion of the Magistrate under Section 201 (2) of the Criminal Procedure Code.
12. The counsel for the accused has cited the Drose v State [2019] FJHC 113; HAA87.2018 (22 February 2019) to support his argument for acquittal.
13. In that case the Appellant was charged in the Magistrates’ Court at Nadi on 2nd June 2015 with three offences of Robbery and one of serious assault. After numerous adjournments a formal application to withdraw was made on the 13th August 2018, and on the request of the prosecution the appellant was discharged pursuant to section 169(2)(b)(ii) of the Criminal Procedure Act.Being unsatisfied with the order of discharge the appellant lodged an appeal seeking for an acquittal.
14. His Lordship Justice Madigan said :

“Section 169(2) (b) allows a Court to either discharge or acquit an accused. The immediate effect of the two orders are the same. Proceedings are then and there terminated. However, the longer term consequences of each order are dramatically divergent. An acquittal frees an accused from the “yoke” of those proceedings but a withdrawal does not. It is open to the Prosecution to re-launch a prosecution against an accused at their whim if the charge is only withdrawn. In most circumstances, the prospect of that would be unfair.

6.] Section 14 (2) (g) of the Constitution 2013, gives an accused the right to have his/her trial begin and conclude without reasonable delay.

7.] The appellant had been facing these charges for a little over three years when the State elected not to proceed against him and for him to still be facing the possibility of the re-launching of proceedings would be a gross injustice and in contravention of his constitutional right to a fair and speedy resolution of the initial charges laid against him”.

15. In Bobo v State [2017] FJHC 882; HAA34.2017 (21 November 2017) again the court was called to decide if the order of discharge made pursuant to section 169(2) (b) was correct in an appeal
16. In that case the Appellant along with one other person was charged in the Magistrates Court at Nadi with one count of Burglary and one count of Larceny from Dwelling House contrary to Sections 299 (a) and 270 of the Penal Code Cap. 17 on 12th November, 2009. Subsequent to series of adjournments over the period between 2010 and 2016, hearing was again fixed for 18th August, 2016. The Prosecution was not ready on that day on the basis that the complainant had left Fiji in 2007. Prosecution sought permission to withdraw the charges under Section 169 (1) and (2) (b) (h) of the Criminal Procedure Act and the magistrate made an order to discharge the appellant which was challenged in an appeal.
17. His Lordship Justice Aruna Aluthge said :

As per State v Mototabua [2012] FJSC 14; CAV0005.2009 (9 May 2012) the test is that if the State were forced into trial, will they be able to proceed to prove the case against the accused within days. If the witnesses cannot be located, prosecution will not be able to prove the charges against the accused.

The learned Magistrate did not give reasons why he discharged the accused, instead of acquitting. Nowhere in his decision, had the learned Magistrate considered the interests of the Appellant. The Appellant is entitled to the presumption of innocence and all other rights to a fair trial. The date of the alleged offences was 21st August, 2009. The withdrawal application was made on 18th August, 2016 after a lapse approximately seven years. Prosecution was given ample time to locate the witness but no meaningful steps had been taken to get the witness down.

There is no material before this court to suggest that the presence of witnesses will ever be secured by the prosecution in the foreseeable future. Appellant was a serving prisoner serving a long term prison sentence and not responsible for the failure. His Constitutional Right to have the trial begun and concluded without unreasonable delay and presumption of innocence had to be guaranteed. The duty to ensure that the process is not abused is on the courts.

It appears that there has been some injustice caused to the Appellant due to the failure on the part of learned Magistrate to consider the applicable legal provisions as to whether the petitioner should have been acquitted.

18. Having considered the above judicial precedents and the applicable law now I would pronounce my ruling in the following manner.
19. The accused was charged in this court on 23^rd May 2011 and apart from few occasions appearing in the court. On 09^th June 2016 the prosecution informed the court that they need to obtain the medical report of the complainant and to obtain the DPP sanction.
20. After numerous adjournments which were granted to obtain the original medical report of the complainant, on 06^th May 2019 the counsel for the ODPP made this application to withdraw the charge because the complainant is bed ridden.
21. When inquired by this court for the reason for discharge, the State counsel informed that they would be able to recharge the accused if the medical condition of the complainant improves in future.
22. But there is no material before this court to confirm that the complainant would be able to attend to court in foreseeable future. Even the counsel for the state admitted that they would not be able to confirm if the medical condition of the complainant would improve for him to participate in this proceeding.
23. Section 14 (2) (g) of the Constitution 2013, gives an accused the right to have his/her trial begin and conclude without reasonable delay.
24. This case has been pending in the court for nearly 08 years and from 2016 could not proceed due to the medical condition of the complainant.
25. Also the counsel for the accused has drawn this court attention that these alleged offences were committed in 2007. The accused was charged in the court only in 2011. Again the prosecution could not explain this pre charge delay for the accused.
26. When the prosecution is making an application to withdraw the charge under 169(2) (b) of the Criminal Procedure Act , before the accused is called to make his defence the court has discretion either to acquit the accused or discharge him from the case. . This discretion need to be exercised judiciously.
27. In exercising the discretion pursuant to section 169(2) (b) the court must not only take into account the interests of the prosecution but those of the accused as well.
28. Considering the long delay in this case , pre charge delay , uncertainty of the complainant to participate in the proceeding in foreseeable future and the accused right to have the trial concluded without unreasonable delay I find the discretion need to exercise in favor of the accused in this case.
29. Accordingly pursuant to section 169(2) (b) (1) of the Criminal Procedure Act I acquit the accused from this charge.
30. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate