Fletcher Challenge Steel (Fiji) Ltd v The State [2001] FJHC 21; Haa0011J.2001s (2 May 2001)

Fiji Islands - Fletcher Challenge Steel (Fiji) Ltd v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 011 OF 2001S

(Suva MC Criminal Case No. 1960 of 2000)

BETWEEN:

FLETCHER CHALLENGE STEEL (FIJI) LTD.

Appellant

AND:

STATE

Respondent

Counsel: Mr F. Hanif for Appellant

Ms A. Prasad for Respondent

Hearing: 24^th April 2001

Judgment: 2^nd May May 2001

JUDGMENT

This is an interlocutory appeal from a ruly the Suva Magistrates Court on 8^th November 2000, disallowing counsel from ente entering a plea of not guilty on behalf of Fletcher Challenge Steel (Fiji) Ltd., a corporation.

The charge is as follows:

Statement of Offence

COMMON NUISANCE: Coy to Section 187 of Penal Code Cap 17.

Particulars of Offence

p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> FLETCHER STEEL (FIJI) LIMITED, a company duly incorporatediji, on or about 28^th day of March 1998 at Suva Suva in the Central Division, did an act not authorised by Law, thereby caused a common injury, danger or annoyance and inconvenience to the public by discharging a quantity of petroleum oil onto land adjacent to their premises at Fletcher Challenge Steel (Fiji) Limited, namely National Fire Authority and Northern Kings Wharf.

In the Magistrates’ Court the plea was deferred from 19^th Septemb00 to 2^nd November 2000. On the 2^nd oup> of November, counsel for the accused company asked to submit a plea on behalf of the company. It appears from the record that the prosecution submitted that because the charge carried a sentence of imprisonment, the personal attendance of the company was required.

Submissions were heard from counsel and the police prosecutor. The learned Magistrate delivered her ruling on 10^th November 2In that ruling the learned rned Magistrate held that section 206(5) permitted the corporation to appoint a representative who was “one of the persons having the management of the affairs of the corporation. This is different from the person appointed as barrister and solicitor of the corporation. A barrister and solicitor cannot be said to have the management of the affairs of the corporation.”

She then entered a not guilty plea in the absence of a representatf the Corporation.

The grounds of appeal are as follows:

(a) ;&nbssp; &nbbsp;&bsp; &nbp; &nbbsp;

(b)Criminal Procedure Code means one of the Managers of the Corporation not its Bter oicitopan>

(c) &nnsp;&&nsp;;&nspp;&nssp;&nsp; &nbsp Thatlear ed Magistrgistrate erred in law in holding that a Barrister and Solicitor could not be appointed a representative for the purposes of Section 206(5) of the Criminal Procedure Code.p claoNormal style="tee="text-inxt-indent: 36.0pt; margin-top: 1; margin-bottom: 1">

(d)  p;&nbbsp;&&bsp; &bsp; &nbbp;&nnbsp; That that the learned Magi Magistrate erred in law in her interpretaof Se 206(5) of the Criminal Procedure Code.

The questions for determination can really be summd as one question. Does section 206(5) of the Criminal Procedure Code, allow a corporation tion charged with a criminal offence to appoint as its representative, a barrister and solicitor? There is no dispute that on October 31^st 2000, the accused corporation appointed Messrs. Munro Leys, Barristers and Solicitors to represent the company in the case.

Section 206(5) itself is very clear. It provides as follows:

“When a corporation is charged with any offence before a magistrates’ court, the corporation mter in writing by its reprerepresentative a plea of “guilty: and “not guilty”; and if either the corporation does not appear by representative or, though it does appear, fails to enter any plea, the court shall cause a plea of “not guilty” to be entered and the trial shall proceed as though the corporation had duly entered a plea of “not guilty”.

Where the charge against a corporation is one which may, with the consent of thesed, be tried by a magistraistrates’ court, and the corporation does not appear by representative or if it does so appear, consents that the offence should be so dealt with, the magistrates’ court may proceed to try such charge summarily in accordance with the provisions of this Code. A representative for the purposes of this section need not be appointed under the seal of the corporation, and a statement in writing purporting to be signed by a managing director of the corporation, or by any person (by whatsoever name called) having or being one of the persons having the management of the affairs of the corporation, to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section shall be admissible without further proof as prima facie evidence that that person has been appointed.” (my underlining)

A careful reading of this section shows that the p who may authorise in writing the appointing of a representative to appear for the corporatporation is either the managing director, or a person having management of the affairs of the corporation. The reference to “persons having the management of the affairs of the corporation” in section 206(5) is a reference to the persons eligible to appoint a representative. It is not a definition of the word “representative”. There is no definition of the word representative. Theoretically, the corporation could appoint anyone to appear to enter a plea. In practice, the representative is invariably a barrister and solicitor.

That practice is not limited to the practice of the Fiji Courts. In England, although section 33( the Criminal Justice Act 1925 does not have have an identical equivalent in the Fiji Criminal Procedure Code, section 33(6) is almost identical to our section 206(5). The purpose of the paragraph of the sub-section is to provide a means to show the court that the representative appearing in court has been properly authorised to do so.

Blackstone’s Criminal Practice at Paragraph P18.18 referred to me by State Counsel states:

“For the avoidance of doubt, it is advisable that a corporation intending to r by solicitor should appoint the latter as its representatentative for the purposes of section 3 to the Magistrates Court Act.”

Schedule 3 of section 46 of the Magistrates Court Act 1980 (Ullows a representative of a corporation, to make representasentations to the court, consent to summary trial, and to enter a plea on behalf of the corporation.

I find therefore that there is nothing to prevenorporation from appointing a barrister and solicitor to represent the corporation in criminriminal proceedings. Furthermore, I find that section 206(5) of the Criminal Procedure Code defines the person or persons who may authorise such a representative to appear on its behalf, and that such authorisation if it is in writing, is prima facie evidence of authority. There is no doubt that such written authorisation was provided in this case. The question raised by the prosecutor in the Magistrates Court, that of a possible term of imprisonment disallowing appearance by a representative, is not relevant. A fine is always an alternative sentence, and this issue with others, can be properly considered by the court after hearing from the corporation’s solicitors. As Rowlett J said in R -v- Ascanio Puck & Co. Ltd. (1912) KBD 487, the exercising of options in the course of trial, and the making of submissions, can properly be made by the appointed representative of the corporation.

The appeal is therefore allowed on all grounds. The case must now return to the Magistrates Court, he barrister and solicitor representative of the corporatioration to enter a plea on the corporation’s behalf, and for the trial to proceed on that basis.

Nazhat Shameem

JUDGE

At Suva

HAA0011J.01S