Rutten v State [1993] FJCA 27; AAU0001u.1992s (20 August 1993)

Fiji Islands - Rutten v The State - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

CRIMINAL JURISDICTION

CRIMINAL APPEAL N0: 1 OF 1992
(High Court Miscellaneous Application No. 6 of 1992)

BETWEEN:

HELMET PAUL KASPER RUTTEN
APPELLANT

AND:

STATE
RESPONDENT

Date of hearing: 19th May 1993
Date of Delivery of Judgment: 20th August 1993

JUDGMENT
PRESIDENT MICHAEL M HELSHAM

I am constrained to come to the conclusion that this Court has no jurisdiction to deal with this appeal.

Three legislative provisions are relevant. The first is s.10 of the Extradition Act Cap 23. That provides:-

"10.-(1) Where a person is committed to custody under section 9, the court shall inform him in ordinary language of his right of action in the Supreme Court for redress of a contravention of his right to personal liberty or for review of the order of committal, and shall forthwith give notice of the committal to the Minister.

(2) A person committed to custody under section 9 shall not be extradited under this Act-

(a) in any case, until the expiration of the period of fifteen days beginning with the day on which the order for his committal is made;

(b) if an action has been instituted in the Supreme Court for redress of a contravention of his right to personal liberty or for review of the order of committal so long as proceedings on that action are pending.

(3) In any such action, the Supreme Court may, without prejudice to any other jurisdiction of the court, order the person committed to be discharged from custody if it appears to the court that-

(a) by reason of the trivial nature of the offence of which he is accused or was convicted; or

(b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or

(c) because the accusation against him is not made in good faith in the interests of justice,

it would, having regard to all the circumstances, be unjust or oppressive to extradite him.

(4) On any such application the Supreme Court may receive additional evidence relevant to the exercise of their jurisdiction under section 6 or under subsection (3).

(5) For the purposes of this section proceedings in an action for redress of a contravention of a person's right to personal liberty or for review of an order shall be treated as pending until any appeal in those proceedings is disposed of; and an appeal shall be treated as disposed of at the expiration of the time within which the appeal may be brought or, where leave to appeal is required, within which the application for leave may be made, if the appeal is not brought or the application made within that time."

Sections 12 and 21 of the Court of Appeal Act respectively provide, so far as relevant:-

"12.-(1) Subject to the provisions of subsection (2), an appeal shall lie under this Part in any cause or matter, not being a criminal proceeding, to the Court of Appeal-

(a) from any decision of the Supreme Court sitting in first instance, including any decision of a judge in chambers;

...

21. A person convicted on a trial held before the Supreme Court may appeal under this Part to the Court of Appeal-

(a) against his conviction on any ground of appeal which involves a question of law alone;

(b) with the leave of the Court of appeal or upon the certificate of the judge who tried him that it is a fit case for appeal against conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact or any other ground which appears to the Court to be a sufficient ground of appeal; and

(c) with the leave of the Court of Appeal against the sentence passed on his conviction unless the sentence is one fixed by law."

As Sir Mari Kapi in separate reasons for judgment in this matter rightly points out, the Court of Appeal draws its jurisdiction from the Constitution via the Court of Appeal Act. This Court can only hear appeals in those instances where jurisdiction to do so has been conferred on it.

The circumstances leading up to this appeal and this Court's hearing of it have been dealt in the reasons prepared by Sir Mari. I do not propose to repeat them. Their simple nature belies the difficulties that lie behind.

It is probably true to say that extradition matters dealt with under the Extradition Act would be categorised as "criminal proceedings" if one needed to describe them. They provide for apprehension of a person, a hearing before a Magistrate, incarceration, deportation. There is no appeal from a Magistrate's decision.

Section 10 of the Extradition Act does not confer any right of appeal. It is not correct to say, in my opinion, that a right of appeal is given "under" that Act. It is not. The wording of the equivalent English Act, which, as pointed out by Sir Mari, provides that a person committed under that Act has a "right" to make an application for "habeas corpus", might be said to confer a right of appeal under that Act, but that is not the case here. The local Act gives no such right. Section 10(1) only requires a person to be informed of his right of action in the High Court. The distinction may be a fine one, but I believe it is a relevant one.

In referring to a right of redress or review, s.10 is clearly referring to the right of any person aggrieved by some action of the authorities to approach the courts for the issue of one of the prerogative writs, by which the action can be brought up for review. That is a right arising under the common law of England, existing in Fiji since 1875, (Supreme Court Act Cap 13 s.22) preserved by the Constitution, shaped and given a local habitation and a name in the High Court by virtue of Order 53.

That has nothing to do with the criminal law. From a decision of the High Court in relation to any application for the issue of one of the prerogative writs an appeal lies to this Court pursuant to s.12 of the Court of Appeal Act.

Lest it be relevant, we have not been made aware of any means of redress or review of committal under the Extradition Act other than by way of seeking the issue of one of the prerogative writs. That Act does not give any right of appeal, and s.21 of the Court of Appeal Act gives no right of appeal against a committal.

Now it is critical in my view that the Extradition Act acknowledges not only a right of redress or review for a person committed (s.10(1)), but goes on to make special provision which acknowledges the possibility of an appeal. The "proceedings" referred to in s.10(5) clearly, in my view, relate to proceedings brought for the issue of a prerogative writ; it is then provided that such proceedings shall be deemed to continue until any appeal in them is disposed of, or until the time for appealing has passed, or, if leave to appeal is needed, until the time for obtaining leave has elapsed. It acknowledges the right to seek the issue of a writ, and for an appeal against the decision.

The reason for this is perfectly obvious. It is designed to protect both sides. It operates to prevent the authorities from whipping the person committed out of the country before he has had a chance to have an appeal heard, if the High Court refuses to issue a writ, and it operates to enable the authorities to keep the person committed in the country, and stop him fleeing, if a writ is issued and the authorities wish to appeal. Very sensible and just. It is designed to hold the position in statu quo ante, as the lawyers like to say.

Now this is where the problem arises. If the decisions of the Privy Council, which are examined at some length by Sir Mari Kapi, are correct, then the proceedings for the issue of a prerogative writ taken in respect of a person committed under the Extradition Act are "criminal proceedings". Under ss.12 and 21 of the Court of Appeal Act there is no right o f appeal. I do not propose to go over the relevant passages in the decisions of the Privy Council; they are sufficiently set out in the reasons for judgment of Sir Mari Kapi. But that is the result. And I suppose one cannot complain that the prerogative writ proceedings be put into some category, seeing the Court of Appeal Act seems to require that this be the case.

But if this Court adopts the reasons in the judgments of the Privy Council for categorising the proceedings as criminal, this Court is simply, by judicial decision, writing s.10(5) out of the Extradition Act. It is not as if the Court was saying that part of an Act is unlawful or ultra vires, e.g. as offending some provision in the Constitution; it is saying that that subsection, enacted by Parliament to protect the rights of persons committed under the Extradition Act, simply has no effect at all.

This Court has, of course, given anxious consideration to whether the law in Fiji is as the Privy Council has stated. Privy Council decisions are no longer binding on the Courts here. But the matter does not end there - there are two other facets.

One is that the Privy Council may have stated the common law in this area. If so, that was part of the law in Fiji prior to 1987. The statutory provision and the Constitution to which I have earlier referred make that clear. Whether the particular Privy Council decisions could be labelled as having been decided according to the principles of the common law, the "rules" relating to the interpretation of statutes (rules of common law or rules of common sense), or upon the whim of Privy Council, I do not pause to consider. I do not think in the circumstances of this case that is necessary.

The other is that it would not be proper for this Court to refuse to accept as the law what the Privy Council has held it to be merely because to do so renders nugatory some provision of a statute in Fiji. There are other ways of curing the problem.

Unless there were very cogent grounds for refusing to follow the decisions to which Sir Mari refers, then I believe this Court should not do so. We do not know in what instances, if any, those decisions have been accepted and followed, and with what consequences. I suppose common sense would say that if it is necessary to categorise proceedings in this case as civil or criminal, as the Court of Appeal Act seems to postulate, then these ones have more the flavour of criminal than civil. So be it.

We hope that the attention of the legislature is immediately drawn to this situation. At the time when the Extradition Act was enacted it was clearly the intention of Parliament not to deprive a person committed under the Extradition Act of any right of appeal against a decision of the High Court. This Court has been constrained to do just that. The matter warrants attention.

I wish to say nothing about any possible avenues of redress or review for a person committed under the Extradition Act, nor of any other avenues of appeal. If and when the need to consider anything arises, no doubt it will be dealt with. It does not arise here.

I believe the proper course to take is to make a declaration that an appeal from the proceedings in the High Court in this case does not exist, and on that basis the appeal is dismissed.

Mr Justice Michael M. Helsham
President, Fiji Court of Appeal

---------------------------------------------------------

IN THE FIJI COURT OF APPEAL

CRIMINAL JURISDICTION

CRIMINAL APPEAL NO: 1 OF 1992
(High Court Miscellaneous Application No. 6 of 1992)

-GB">BETWEEN:

HELMET PAUL KASPER RUTTEN
APPELLANT

AND:

STATE
RESPONDENT

Mr M. Raza for the Appellant
Ms N. Shameen for the Respondent.

Date of hearing: 19th May 1993
Date of Delivery of Judgement:

JUDGMENT
SIR EDWARD WILLIAMS

I have had the advantage of reading the reasons for judgment of the President and Sir Mari Kapi and agree with their conclusions and the order proposed.

Sir Edward Williams
Justice of Appeal

Aau0001u.92s