State v Chand [2015] FJCA 64; AAU0085.2012 (28 May 2015)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU0085 OF 2012
[High Court Case No. HAM 77 of 2012Ltk]

BETWEEN:

THE STATE
Appellant

AND:

VISHAL CHAND
RONIL RAM
Respondents

Coram : Calanchini P
Fernando JA
Goundar JA

Counsel : Mr. M. Delaney for the State
1st Respondent in Person
Mr. S. Sharma for the 2nd Respondent

Date of Hearing : 12 May 2015
Date of Judgment : 28 May 2015

JUDGMENT

Calanchini P:

I have read in draft the judgment of Goundar JA and agree that the appeal should be dismissed for the reasons stated in the judgment.

Fernando JA:

I have read in draft the judgment of Goundar JA and agree that the appeal should be dismissed for the reasons stated in the judgment.

Goundar JA:

[1] This appeal is brought by the State against a judgment of the High Court that set aside an order of discharge made by the Magistrates' Court and substituted an order of acquittal in favour of the respondents. The Notice of Appeal was filed pursuant to section 22(1) of the Court of Appeal Act, Cap.12. The gist of the State's ground of appeal is that the High Court erred in exercising inherent jurisdiction to make an order of acquittal in favour of the respondents. During the hearing of the appeal, a preliminary question arose as to whether this Court has jurisdiction to entertain the State's appeal.

Procedural background

[2] The respondents and a third accused (Shiu Prasad) were charged together in a case in the Magistrates' Court at Lautoka. The charges were as follows:

Shiu Prasad

Count 1 – Abduction of a girl aged 14 years contrary to section 153 of the Penal Code, Cap. 12.

Vishal Chand

Count 2 – Abduction of a girl aged 15 years contrary to section 153 of the Penal Code, Cap. 12.

Count 3 – Defilement of a girl aged 15 years contrary to section 156(1)(a) of the Penal Code, Cap. 12.

Ronil Ram

Count 4 – Defilement of a girl aged 15 years contrary to section 156(1)(a) of the Penal Code, Cap. 12.

[3] Counts 2-4 involved the same girl while count 1 involved a different girl. When the allegations arose in December 2008, the respondents were police officers. They were suspended after they were charged on 29 December 2008. It appears that at some stage after the respondents were charged, their original court file went missing from the Magistrates' Court Registry at Lautoka. There is a direction by the Resident Magistrate in the court record to the effect that the Registry was to inform him about the whereabouts of the original file. It is apparent that all three accused were on bail and the case had to be adjourned on numerous occasions due to either one or other accused not appearing in court.

[4] Eventually, the case was set for trial on 13 July 2011. Summons were filed and issued for the witnesses including the complainants to appear in court on the trial date. However, the trial did not proceed on 13 July 2011. The prosecutor informed the learned Magistrate that the complainant on count 1 could not be located and the complainant on counts 2-4 did not want to proceed with the case. The case was adjourned to 1 August 2011 to allow the prosecutor to seek the Director of Public Prosecution's approval to withdraw the charges. On 1 August 2011, the prosecution applied for leave to withdraw all the charges and have the accused discharged under section 169(2)(b)(ii) of the Criminal Procedure Decree 2009. The learned Magistrate allowed the application and discharged all three accused. After discharging the accused, the learned Magistrate kept the case alive and adjourned the case to 21 November 2011 for a mention for the prosecutor to seek further advice from the DPP. The nature of opinion being sought was not disclosed.

[5] Meanwhile, a different Magistrate took over the case. On 13 March 2012, the respondents appeared before the new Magistrate with their counsel and applied for an acquittal. The new Magistrate refused to entertain the application for an order of acquittal saying the respondents have already been discharged by another Magistrate.

[6] On 20 April 2012, the respondents filed a Notice of Motion for an acquittal order. The Motion was supported by an affidavit from the first Respondent, Vishal Chand. Paragraphs 10-13 of the affidavit states the reasons for the application:

(10) That I had been a police officer for the past three (3) years.

(11) That I am single and residing at Saweni, Lautoka and a student of University of Fiji.

(12) That two years of my law course is still to be completed.

(13) That if I am not acquitted in this matter, it will affect my current employment as well as the prospect of future employment.

[7] On 15 May 2012, the Motion was called in the High Court and adjourned to 29 May 2012 for a hearing. However, it appears that the case was not called on 29 May 2012. The case was called on 21 June 2012 and the court record of this date reads:

"Court to State Counsel – Have you appealed against the order of the Magistrate?

State Counsel: No.

Court: Are you intending to appeal against the order?

State Counsel: No.

The Judgment will be on 29/6//2012".

[8] At the hearing the learned judge did ask the pertinent questions. But unfortunately the questions were directed towards the wrong party. The State had applied for an order of discharge and they did get one in the Magistrates' Court. The aggrieved party was the respondents, not the State. The respondents should have been asked to offer an explanation as to why they did not appeal the discharge order.

[9] In any event, the learned judge proceeded to consider his judgment based on the written submissions of the parties. In his written submissions, counsel for the respondents made it plain that he was invoking the inherent jurisdiction of the High Court to set aside the order of discharge, which he submitted was made as a result of an abuse of process and without consideration of the respondents' interests. In crafting his arguments, counsel submitted that the State had ample opportunity to assess the sufficiency of evidence against the respondents and by seeking a discharge the State was acting in abuse of court process by leaving the option of re-charging the respondents in future open.

[10] Counsel for the State who appeared in the High Court unfortunately did not address the issue of jurisdiction. Instead the State counsel defended the merits of the order of discharge made by the Magistrates' Court. In those submissions, counsel explained the reasons for the order of discharge. She stated that the complainant against Shiu Prasad (count 1) could not be located, while the complainant against the respondents (counts 2-4) was about to get married (and her husband to be did not know about this case), and therefore, she was not interested to proceed with the case. At no stage, counsel for the State conceded the application.

[11] On 29 June 2012, counsel for the respondents failed to appear in court and for that reason the case was adjourned to 17 July 2012 for judgment. On 17 July 2012, the judgment was pronounced. The learned judge allowed the application by stating at paragraph 12:

"Considering the nature of the application I find this is a fit and proper case to invoke the inherent jurisdiction of this court. Accordingly I order both applicants be acquitted from the charges."

Jurisdiction of the High Court

[12] The High Court being a superior court enjoys original jurisdiction over any civil or criminal cases. When this matter was heard in the High Court, the original jurisdiction of the High Court was conferred by section 6(1) of the Administration of Justice Decree.

[13] The inherent powers, on the other end, are ancillary powers, which are necessary to enable the Courts to act effectively within their jurisdiction as explained by Richmond J in Taylor v Attorney-General (1975) 2 NZLR 675 at p.682:

"But when one speaks of the "inherent jurisdiction" of the Court to make orders of the kind now in question the problem really becomes one of powers ancillary to the exercise by the Courts of their jurisdiction in the primary sense just described. Many such ancillary powers are conferred by statute or by rules of court, but in so far as they are not so conferred then they can only exist because they are necessary to enable the Courts to act effectively within their jurisdiction in the primary sense."

[14] The purpose of the inherent powers was also explained in by Lord Morris of Borth-y-Gest in R v Connelly (1964) 48 Cr App R 183 at 206-207:

"There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process."

[15] In Shah v Nand (unreported Misc. Case No. HAM0018 of 2003S; 30 April 2003), the applicant had commenced a private prosecution against the respondent in the Magistrates' Court. In the course of that prosecution, the learned Magistrate made orders adverse to the applicant. The applicant then moved to invoke the inherent jurisdiction of the High Court to review the orders made by the Magistrates' Court. Shameem J refused to grant relief for the following reasons at p 4:

"Given the nature of the orders sought, I cannot agree that I have jurisdiction to entertain this application. The orders are not necessary for the effective administration of justice or to prevent the abuse of the process of this Court. Further, to entertain a review of the learned Magistrate's decisions in this manner, would be to fly in the face of section 325 of the Code which provides that where a right of appeal exists, a party may not seek review."

[16] In State v Naitini (aka George Speight) (unreported Criminal Appeal No. HAA93 of 2000; 4 January 2001) the State applied to invoke the inherent jurisdiction of the High Court to set aside certain pre-committal hearing orders of the Magistrates' Court under the inherent jurisdiction of the High Court. The nature of the inherent jurisdiction of the High Court was explained by Shameem J at p 6:

"In summary therefore, the High Court may use its original inherent powers to prevent an abuse of its own processes, to regulate proceedings validly brought before it, to stay proceedings in the subordinate courts to protect proceedings brought in the High Court and to ensure that justice is properly administered. However any exercise of that power affecting proceedings in the lower courts, should be sparing and exceptional, and must be limited to the legality and the propriety of decisions made in the subordinate courts."

[17] In Naitini, Shameem J refused to invoke the inherent powers of the High Court saying that the State's complaints rested with the appellate jurisdiction of the High Court and statue allowed the State to appeal.

Right of appeal against a discharge
[18] Counsel for the State raises an additional question of law relating to the right of appeal against an order of discharge. Counsel submits that there is now a statutory bar placed by section 246 (7) of the Criminal Procedure Decree 2009 in relation to orders made by the Magistrates' Court before determination of the guilt of the accused.

[19] The right of an appeal against an order of the Magistrates' Court is governed by section 246(1) of the Criminal Procedure Decree 2009. Section 246(1) provides:

"Subject to any provision of this Part to the contrary, any person who is dissatisfied with any judgment, sentence or order of a Magistrates Court in any criminal cause or trial to which he or she is a party may appeal to the High Court against the judgment, sentence or order of the Magistrates Court, or both a judgment and sentence."

[20] The limitation is contained in subsection (7), which reads:

"An order by a court in a case may be the subject of an appeal to the High Court, whether or not the court has proceeded to a conviction in the case, but no right of appeal shall lie until the Magistrates Court has finally determined the guilt of the accused person, unless a right to appeal against any order made prior to such a finding is provided for by any law."

[21] The limitation on the right of appeal from an order of the Magistrates' Court under section 246(7) of the Criminal Procedure Decree 2009 is new. No such limitation existed under the Criminal Procedure Code, Cap. 21 (now repealed).

[22] The question is whether the limitation contained in section 246(7) applies to an order of discharge made by the Magistrates' Court pursuant to section 169 of the Criminal Procedure Decree?

[23] Section 169 of the Criminal Procedure Decree 2009 reads:

"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 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 Decree which the court considers appropriate.

[24] I would answer the question whether the limitation contained in section 246(7) applies to an order of discharge under section 169(2)(b)(ii) in negative. In my judgment, the limitation placed by section 246(7) applies to those orders incidental to a trial where the Magistrates' Court is determining the guilt of the accused. If an accused elects to contest the charge by not pleading guilty, he has no right of appeal against interlocutory orders made by the Magistrates' Court (unless expressly provided by statute) until the Magistrates' Court has finally determined the guilt. Examples of such interlocutory orders would include voir dire rulings on admissibility of evidence, joinder of counts or accused persons, no case to answer rulings or any other orders of similar nature. The mischief that the limitation is trying to address is appeals that fragment trials or cause delays in disposal of criminal cases. The mischief does not apply to an order made under section 169 (2) of the Criminal Procedure Decree 2009 because the proceedings are brought to an end with such orders, which ultimately serves the interests of justice. If either party is grieved by an order made under section 169(2), then that party may appeal to the High Court under section 246(1) of the Criminal Procedure Decree 2009.

[25] Since the orders under section 169(2) are discretionary, appellate courts review that discretion based on principles enunciated in cases like Eliki Mototabua v State (unreported Criminal Appeal No. CAV0005/09; 12 August 2009) and Sada Siwan and Another v State (unreported Cr. App. No. HAA 050 of 2008L; 29 August 2008).

[26] The respondents did have a right of appeal against the order of discharge, although they were out of time under section 248(1) of the Criminal Procedure Decree 2009. However, they could have applied for an extension of time to appeal; an appellate procedure that was available to them under section 248(2) of the Criminal Procedure Decree 2009. In other words, the respondents' grievances against the exercise of discretion by the Magistrates' Court to discharge them rested in the appellate jurisdiction of the High Court. The High Court's inherent powers exist to remedy an injustice when the proceedings are alive in the Magistrates' Court. Inherent jurisdiction cannot be exercised when the proceedings have come to an end in the Magistrates' Court. In my judgment, the High Court acted without jurisdiction when it reviewed and quashed the order of discharge made by the Magistrates' Court and substituted an order of acquittal using its inherent powers.

Whether this Court has jurisdiction to intervene?

[27] Section 99 (3) – (5) of the Constitution states:

(3) The Court of Appeal has jurisdiction, subject to this Constitution and to such requirements as prescribed by written law, to hear and determine appeals from all judgments of the High Court, and has such other jurisdiction as is conferred by written law.

(4) Appeals lie to the Court of Appeal as of right from a final judgment of the High Court in any manner arising under this Constitution or involving its interpretation.

(5) A written law may provide that appeals lie to the Court of Appeal, as of right or with leave, from other judgments of the High Court in accordance with such requirements as prescribed in that written law or under the rules pertaining to the Court of Appeal.

[28] The written law that prescribes the jurisdiction of this Court is the Court of Appeal Act, Cap. 12 (the Act). Part IV of the Act governs criminal appeals. Under section 21(2), the State can appeal against an acquittal. But that right is available only if the acquittal was entered after a trial held in the High Court. The respondents were not tried in the High Court, and therefore, section 21(2) does not apply.

[29] Section 22 deals with appeals from the High Court's appellate jurisdiction. The present appeal was filed under this section. Section 22(1) reads:

"(1) Any party to an appeal from a magistrate's court to the [High Court] may appeal, under this part, against the decision of the [High Court] in such appellate jurisdiction to the Court of Appeal on any ground of appeal which involves a question of the law only...:

Provided that no appeal shall lie against the confirmation by the [High Court] of a verdict of acquittal by a magistrate's court."

[30] In my judgment, section 22 does not apply to the present appeal. The respondents did not file an appeal in the High Court. They filed a Notice of Motion to seek relief under the inherent jurisdiction of the High Court. The learned High Court judge in his judgment expressly stated that he exercised the inherent powers of the High Court to acquit the respondents. In other words, there was no exercise of the appellate jurisdiction by the High Court for an appeal to lie pursuant to section 22.

[31] There is a general jurisdiction provided by section 3(3) of the Act although the State did not rely on this section. Section 3(3) reads:

"(3) [Appeals lie to the Court as of right from final judgments of the High Court given in the exercise of the original jurisdiction of the High Court]".

[32] In Balaggan v State (unreported Misc. Action No. 11 0f 2012; 25 May 2012), the appellant argued that criminal appeals were not limited to Part IV of the Act, and that there was a wider more general jurisdiction under section 3(3) of the Act. Calanchini P in rejecting this argument said at p.6:

"This would appear to be a case when it is necessary to apply the principle of statutory interpretation that an Act must be read as a whole. As a result, in my judgment, when the Act is read as a whole, it is clear that the general jurisdiction in section 3(3) of the Act must be regarded by necessary implication as having been qualified, so far as criminal appeals are concerned, by Part IV of the Act. In my judgment criminal appeals to this Court are restricted to the jurisdiction conferred by Part IV of the Act."

[33] The above interpretation has to be correct. When an appeal is brought by the State under section 21(2) of the Act against an acquittal after a trial in the High Court, then section 23 (1) (b) expressly provides how that appeal can be determined. Similarly, section 22(3) provides how this Court can determine an appeal from the appellate jurisdiction of the High Court on a wrong decision of law only. If section 3(3) was intended to provide a wider more general jurisdiction, then the Act should contain provision for determination of appeals under that section. Since there is no such provision, I agree with Calanchini P's judgment in Balaggan's case 'that the general jurisdiction in section 3(3) of the Act must be regarded by necessary implication as having been qualified, so far as criminal appeals are concerned by Part IV of the Act.'

[34] The right of appeal is created by statute and not by courts. It is for the Parliament to create a right of appeal for the State in the circumstances of this case. As far as this appeal is concerned, the Court lacks jurisdiction to intervene even after finding that the High Court made a jurisdictional error in acquitting the respondents using its inherent powers.

Conclusion
[35] For these reasons, I would dismiss the State's appeal for want of jurisdiction.

Order of the Court:
The appeal is dismissed for want of jurisdiction.

........................................
Hon. Justice W. Calanchini
PRESIDENT, COURT OF APPEAL

........................................
Hon. Justice S. Fernando
JUSTICE OF APPEAL

........................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Director of Public Prosecutions for State
1st Respondent in person
Office of the Legal Aid Commission for 2nd Respondent