State v Nata [1995] FJHC 83; Haa0047j.94s (2 May 1995)

IN THE HIGH COURT OF FIJI
(SUVA)
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0047 OF 1994

BETWEEN:

STATE
APPELLANT

AND:

JOSEFA NATA
RESPONDENT

Miss Shafique for Appellant
Mr. I. Fa for Respondent

JUDGMENT

On the 17th May 1994 at Suva Magistrates Court this case was called in Chambers on the application of Respondent's Counsel. In Chambers the complainant refused to reconcile with the respondent. Thereafter respondent pleaded guilty to the charge assaulting Taufa Waqa (complainant) thereby occasioning her Actual Bodily Harm, contrary to Section 245 of the Penal Code. After respondent admitted the facts after they were outlined, the trial Magistrate thereupon proceeded to make an order under Section 44 of the Penal Code conditional that respondent keep the peace and be of good behaviour for twelve (12) months, and further he made a "Suppression Order" that the identity of the accused be not disclosed in the media.

The State (appellant) now appeals against the orders made by the trial Magistrate on the following grounds:-

(a) That the order under Section 44 of the Penal Code is not warranted by law since:

(i) The nature of the offence was not trivial in nature;

(ii) The assault on the complainant was the second by the respondent;

(iii) The respondent had a previous record.

(b) That the sentence was manifestly lenient; and

(c) There is no provision in law for making a "suppression order" and violates the principle of equality under the law.

I shall deal with grounds (a) and (b) together since in my view they don't only overlap but they can be conveniently dealt with together.

However, it may be convenient at this stage to state briefly the facts of this case as outlined by the prosecution in the court below:

"On the 25th of February, 1993 at 10 p.m. accused and complainant who were having an affair for quite sometime went to the market to buy BBQ food. They then went to the accused's apartment in Bau Street to spend some time together.

There they argued about her dress. He said it was not long enough. They continued arguing he then hit her. She fell down. In her hand she had a glass which broke and she cut herself in the hand. She was bleeding. The accused took her to the hospital immediately. The matter was not reported to police same day but on 17th March which was about two weeks later. "

The Medical Report shows that complainant suffered the following injuries:-

(1) Laceration contusion (R) upper lip

(2) Contusion hermatoma (L) eye

(3) Subconjuntival haemorrhage

(4) lacerated (R) palm No.2.

It is evident from the injuries suffered by the complainant that these were not of a trivial nature, but I am somewhat concerned why she did not report the assault on her by the respondent to police as soon as possible, but waited until after two weeks before she did.

It is also pertinent to note the undisputed plea in mitigation by Mr.Isireli Fa which I repeat below in full.

"Though accused and the complainant had a relationship, her dress was bought by another boy friend. She told him this. She cut her hand when she tried to hit him and fell down. It is her own fault. The accused told her that he would first take her to the hospital and then to police. She went to the hospital but refused to go to the police that day. She did not tell the police for about two weeks. Hard to explain why such a delay in reporting. It is important to note that the accused himself wanted to take her to the hospital and to the police on his own but she refused to go to the police. The offence took place in February 1993.

But six months later they got together again and lived as husband and wife in a de facto manner. Today they live as husband and wife. Failure on her part to reconcile is surprising in the light of this. Even last night they slept together in one bed. "

The trial Magistrate before making an order had this to say:

"The facts of this case are peculiar.

Usually after assault as in this case, the two parties live separately at least until the matter is reconciled usually in court. In this case, they stayed together after six months of the offence. Even on the night before the matter was set down for hearing (yesterday) they slept together.

Because of this odd feature and because of the mitigation generally I am of the view that it would not be appropriate in this case and inexpedient to inflict punishment. I will invoke S.44 of Penal Code, Cap. 17, and discharge the accused without conviction on two conditions :-

(1) that $50.00 court costs is paid within 4 weeks in default 3 months imprisonment; and

(2) that the accused does not re-offend within 12 months.

This sentence takes care of the complainant's concern of repetition by the accused within 12 months at least of his conduct giving rise to the present charge."

It is clear from the trial Magistrate's reasoning before he made his order invoking S.44 of the Penal Code that he had given careful thought to the facts and circumstances surrounding this case. While in normal circumstances an accused person after having been dealt with in court for an offence and he is later charged with a similar offence he is expected to be dealt with more severely, I find, however, in this case the trial Magistrate had exercised his discretion properly to invoke S.44 in the light of the facts outlined above.

I find no merit on these grounds.

I now deal with ground (c).

The Magistrate's Court as a creature of statute derives its power from the Magistrate's Court Act and such other statutes as may be applicable.

Section 20 of the Magistrates' Courts Act provides:

Every Magistrate shall have power to - - - make such decrees and orders and exercise such powers judicial and administrative in relation to the administration of justice as shall from time to time be prescribed by any Act, or by rules of the court, or, subject thereto, by any special order of the Chief Justice.

Section 46 goes on to say:

The jurisdiction vested in the Magistrate shall be exercised (so far as regards practice and procedure) in the manner provided by this Act and the Criminal Procedure Code, or by such rules and orders of court as may be made pursuant to this Act and the Criminal Procedure Code, and in default thereof, in substantial conformity with the law and practice for the time being observed in England in the country courts and courts of summary jurisdiction.

As is evident no further assistance could be elicited from the above in so far as the power of a Magistrate's Court to make a suppression order.

Section 67 of the Criminal Procedure Code provides:

The place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed an open court to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the presiding judge or magistrate may, if he thinks fit, order at any stage of the inquiry into or trial of any particular case that the public generally or any particular person shall not have access to or be or remain in the room or building used by the court.

Again this Section 67 does not have any express extension of this power to make name suppression orders, but it is clear that a Magistrate Court has the power to control its own proceedings. Further there are no provision in the Criminal Procedure Code which authorises name suppression. We therefore must turn to the state of the law and practice for the time being in English lower courts.

This court was referred to two cases (one English and one New Zealand) by the Appellant in support of its argument that the Magistrates Court does not have power to issue name suppression orders.

The House of Lords case of Attorney-General v. Leveller Magazine Ltd [1977] A.C. 44 concerned with the question of whether the publisher of the Magazine had been in contempt in publishing the name of a witness whom the court at first instance had ordered should merely be referred to as "Colonel B". Clearly Superior Courts have power to order name suppression. The question arose here incidentally as to whether the Magistrates who heard the case at first instance had such power.

It was held that on the narrow question the Court was asked to decide, the Magistrates did have power. It was held that where a court would otherwise be justified in sitting in camera, it has power to take a lesser step of allowing a name to be withheld from the public in proceedings before it (see pp. 451 C-E, 467 C-G, 472 B-C).

The New Zealand Court of Appeal case of Taylor v. A.G. [1975] 2 NZLR 675 was considered in the Leveller case. Lord Diplock commented at p.451 F-H:

"The Court of Appeal in New Zealand-------was clearly of the opinion that a court had power to make an explicit order directed to and binding on the public ipso jure as to what might lawfully be published outside the courtroom in relation to proceedings held before it."

The New Zealand Criminal Justice Act 1954 (RS Vol. 9) - now replaced by the Criminal Justice Act 1985 - provides at S. 46 that:

------except as otherwise expressly provided in any enactment, the court in its discretion may make an order prohibiting the publication in any report relating to any proceedings in respect of any offence of the name of the person convicted of the offence--------.

Section 2 of the Act states that unless the context otherwise requires, "court" means any court exercising any jurisdiction in criminal cases.

It is clear from the above that Magistrates Courts in New Zealand do have power to issue name suppression orders.

In the case of Governor of Lewes Prison ex parte Doyle (1917) 2 KB 254 at p.271, Viscount Reading C.J made reference to:

that inherent jurisdiction (which) exists in any Court which enables it is exclude the public where it becomes necessary in order to administer justice.

While I appreciate that the above authorities from England and New Zealand are not binding in Fiji nonetheless they are persuasive in my view.

There is no doubt that Superior Courts in Fiji have inherent jurisdiction to issue orders suppressing the publication of names.

Be that as it may applying the above discussed authorities I hold that Magistrates Courts in Fiji do have jurisdiction to order name suppression. Even if I am wrong on this point I believe from the point of practicality such jurisdiction should be granted to Magistrate's Courts as they handle the bulk of criminal cases in Fiji. My view is also fortified by the proviso to Section 67 of the C.P.C. which reads:

Provided that the presiding judge or magistrate may, if he thinks fit, order at any stage of inquiry into or trial of any particular case that the public generally or any particular person shall not have access to or be or remain in the room or building used by the court.

Although there is no specific mention of prohibition of publication of names or name suppression order, in my view if the Magistrate's Court is empowered to prohibit people from entering the court then it follows that it can also prohibit disclosure or publication of any matter that occurred in the courtroom including names of those who are involved in a court case subject to the principles which both English House of Lords and N.Z.C.A. agreed to, relevant to the test to be applied for making such orders.

The test is that the order is necessary:-

(1) For the due administration of justice; or

(2) In order to serve the ends of justice.

- per Lord Diplock in A.G. v. Leveller Magazine Limited pp. 450 C-E and 452 A-C.

- per Richmond. J in Taylor v. A.G. - pp. 682 and 684.

There is no evidence in this case that the order served any interests of justice or provided for the proper administration of justice. In my view the order only served to save the respondent's personal embarrassment and his personal interests and not any wider interest of justice.

The appeal on this ground succeeds and the order of the court below suppressing the publication of respondent's name is therefore quashed.

The final effect of this appeal is that the sentence imposed by the court below is confirmed and the order prohibiting the publication of the respondent's name is quashed.

One other point that the appellant raised was whether the proceedings in the Magistrate's Chambers were conducted in open court. With the greatest respect to the Appellant since this point was not formulated as one of the grounds of appeal, I will therefore refrain from expressing any view on it, as it can be conveniently dealt with administratively.

S W Kepa
JUDGE

2nd May, 1995

HAA0047J.94S