The Suva High Court has set aside a Magistrate’s Court acquittal and ordered a retrial, after finding the Magistrate acted without jurisdiction.

The court held there was no proof that the complainant had been served with notice of the hearing.

The case stemmed from criminal trespass and damaging property charges filed in May 2020 at the Nasinu Magistrate’s Court. The complainant was one of the applicants in the case.

The matter was scheduled for hearing on September 13, 2024. On that date, police prosecutors appeared but were not ready to proceed as they did not have the case file and sought an adjournment.

When the matter was recalled later, the file was still unavailable. Prosecutors then informed the court that no evidence would be offered.

The Magistrate consequently ruled that there was no case to answer and acquitted the accused under Section 178 of the Criminal Procedure Act.

However, the applicants later told the High Court they had not been served with a summons and were unaware of the hearing date, only learning of the outcome after attending court for a separate matter.

High Court judge Justice Thushara Rajasinghe found there was no evidence before the Magistrate confirming that the complainant had been properly served with notice of the hearing. The Court held this went to the issue of jurisdiction.

The judgment stated that under Section 168 of the Criminal Procedure Act, both the complainant and the accused must be notified and present for a hearing to commence, unless the accused’s attendance has been lawfully dispensed with.

The Court further noted that a complainant’s presence is mandatory and may be in person, through a lawyer, or through an authorised prosecutor. It also emphasised that proper notice is a basic requirement before a prosecutor can properly represent the complainant.

Justice Rajasinghe distinguished between Sections 166 and 168 of the Act, noting that Section 166 allows a court to dismiss or adjourn a matter only where the complainant had been properly notified but fails to appear. In this case, that condition was not met.

The Court concluded that without proof of notice, the Magistrate had no jurisdiction to proceed with the hearing or enter an acquittal under Section 178.

The High Court therefore set aside the September 13, 2024 acquittal and ordered a retrial before a different Magistrate at the Nasinu Magistrate’s Court.