BETWEEN:
SUVA CITY COUNCIL
Appellant
AND:
SAVITA NAND LAL
d/o Prabhu Lal
Respondent
Mr. R. Gopal for the Appellant
No appearance by the Respondents
JUDGMENT
Although the appeals relate to different offences and different respondents, they concern the same appellant, the same trial magistrate
and are based on identical 'grounds of appeal' and may conveniently be dealt with in a single judgment.
The very brief facts of both cases are that the respondents were personally summoned by the appellant Council to appear in the Magistrate Court, Suva to answer charges under the Public Health Act (Cap. 111) and the Suva (Chiropodists and Hairdressers) By-Laws, respectively. Despite summonses having been served on them neither respondent appeared in the Suva Magistrate Court. The charges were subsequently formally proved on the same day before the same magistrate and convictions were entered against both
respondents who were then each fined $10 and ordered to pay '$10 costs'.
The appellant Council appeals against both awards of '$10 costs' on the following three (3) grounds:
1. The Learned Magistrate erred in law and in fact in not awarding the full costs incurred by the appellant/complainant being the
sum of $33.00.
2. The appellant/complainant is a body corporate under the Local Government Act and has to pay court fees for filing complainants
which is in the sum of $33.00.
3. The appellant/complainant says that they are entitled to recover their costs of the actions."
In this particular regard the following relevant exchange is recorded in the certified court record in Criminal Appeal No. 20 of 1997:
"Prosecution moves for $40 costs.
Court: I do not see how a (sic) accused can be ordered to pay excessive costs. The S.C.C. may have incurred costs to prosecute accused
does not mean it should be levied by the accused.
I order $10 costs in default 10 days imprisonment."
At the hearing of the appeal despite having been served with copies of the relevant court record and appeal petition, neither respondent
appeared (either personally or by counsel) to oppose the appeal.
Counsel for the appellant Council in arguing the appeals firstly drew the Court's attention to the provisions of Section 158 of the Criminal Procedure Code (Cap. 21) which reads (so far as relevant):
"It shall be lawful for ... any magistrate to order any person convicted before him of an offence ... to pay to a ... private
prosecutor such reasonable costs as to such ... magistrate may seem fit, in addition to any other penalty imposed."
Quite plainly the trial magistrate in these two (2) cases had a discretion to order costs against the respondents which he exercised in favour of the appellant Council. Counsel for the appellant Council however, forcefully submits that the trial magistrate's discretion to order costs is not a wholly unfettered one and with that submission
I agree.
The discretion in terms of the section is "... to order such reasonable costs as to (the) magistrate may seem fit ..." and counsel argues that in the face of the prosecutor's application for "$40 costs", the award of "$10 costs" was objectively unreasonable and arbitrary and was based upon a misconception that the amount sought was "excessive'.
In support of this latter submission counsel drew the Court's attention to the Magistrates Court (Amendment) Rules 1994 which came into force on 1st March 1994 and which sets out in comprehensive detail the fees payable in the Magistrates Court.
In particular counsel referred to PART VII which deals with the fees payable in Criminal Causes, Appeals, Proceedings and Matters where the following relevant amounts are set out:
"44. On filing any complaint...........................10.00
45. On drawing up a formal charge................10.00
46. On drawing summons.................................5.00
47. On issuing summons to defendant...........10.00
48. For each duplicate Summons issued for service.....2.00
50. On filing affidavit service...........................5.00
----------------------
TOTAL = $42.00
=============
and counsel submits that the appellant Council was obliged to incur the above expenditures in prosecuting each of the respondents for not only breaching the law, but additionally,
in the first respondent's case, for failing to comply with a Notice requiring him to clear over-grown weeds and long grass from his vacant lot, and, in the second respondent's case, she was earning
income from her unlicensed hairdressing business.
In my considered opinion, given the above minimum fees payable in the Magistrate Court for the institution of a criminal prosecution, there is no justification at all for the trial magistrate's observation that the amount
of costs sought by the prosecutor was 'excessive'. Quite plainly it was not and in so-categorising the request the trial magistrate clearly failed to take 'judicial notice' of the above Rules as he was required to do in terms of Section 21 of the Interpretation Act (Cap. 7).
It follows therefore, that the actual amount ordered by the trial magistrate in each case was quite unreasonable and arbitrary and
based on nothing more than his irrelevant personal aversion to making an offender pay for the costs incurred in successfully prosecuting
him or her.
In Sharp v. Wakefield and Others [1891] UKLawRpAC 8; (1891) A.C. 173, Lord Halsbury L.C. speaking of the discretion of licensing justices, said in words that are equally applicable in this case:
"An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and 'discretion' means
when it is said that something is to be done within the discretion of the authorities that that something is to be done according
to the rules of reason and justice, not according to private opinion ...; according to law and not humour. It is to be not arbitrary,
vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which and honest man competent to the discharge
of his office ought to confine himself ..."
In this case I am driven to the inevitable conclusion that the trial magistrate failed to consider relevant matters in ordering costs
against the respondents and was motivated by a sense of misplaced sympathy.
The orders cannot stand and are accordingly quashed and in substitution therefor the respondents are ordered each to pay $40 costs to the appellant Council within 7 days in default 7 days imprisonment.
D.V. Fatiaki
JUDGE
At Suva,
7th July, 1997.
Haa0020j.97s
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