State v Flour Mills of Fiji Ltd [2002] FJHC 310; HAA0009.2001 (30 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0009 OF 2001

BETWEEN:

THE STATE
Appellant

AND:

FLOUR MILLS OF FIJI LIMITED
Respondent

Counsel for the Appellant: Mr. W. Kurisaqila
Counsel for the Respondent: Mr. A.K. Narayan

Date of Hearing: 28 August 2002
Date of Judgment: 30 August 2002

JUDGMENT

This appeal concerns an award of $200 costs against the prosecution in favour of the Accused at the close of committal proceedings before a Magistrate. The committal took place before the Suva Magistrate’s Court on 4 October 2000 and the matter has not been listed for trial in the High Court because of this outstanding interlocutory appeal.

The first difficulty for the prosecution was the refusal of the committing Magistrate on 29 January 2001 to enlarge time within which the petition of appeal could be filed pursuant to Section 310 (1) of the Criminal Procedure Code. The petition of appeal was dated 31 October 2000 but it was not filed within the 28 days prescribed for appeal. Instead it was included with the papers seeking enlargement which application was filed with the Magistrate’s Court on 14 November 2000.

Summons to show cause

At today’s proceedings the Appellant’s counsel seeks to show cause why the appeal should not be struck out. Mr. Kurisaqila frankly admits there is no application and no appeal currently before the court. The appeal was first set down at the direction of the High Court for hearing on the 6th April 2001. This date was re-fixed at counsel’s request for the 23rd April 2001 and came on before Shameem J. On that date Mr. M.B. Patel for the Respondent said he did not know how the appeal came to be listed when enlargement of time had been refused. He sought costs. Mr. Kurisaqila is recorded as saying he wanted to discuss the matter further with the DPP and to look up the relevant authorities on the matter. This appears not to have been done, nor a decision made as to what course the appeal should follow. If it had been, that is by the next date, 27th April 2001, the Respondent’s wasted costs might have ceased then. After all the Respondent’s Ba solicitors had to brief counsel from Suva to appear on that day. Mr. Kurisaqila is noted as conceding the appeal was incompetent. He asked the court instead to exercise revisional powers concerning what he submitted was an unlawful costs order.

Shameem J. recused herself from the case on the ground that she had earlier heard related civil proceedings. Mr. M.B. Patel commented that the Appellant was in reality coming by the back door, now that the appeal was incompetent, with a submission that revisionary powers could be exercised.

The matter was referred by the court to Pathik J. His Lordship recorded on the court file for the 13th July 2001 that the State said it wished to proceed with the appeal. However those having carriage of the appeal for the Director made no attempt to seek from the High Court either the exercise of concurrent jurisdiction for enlargement of time or appellate powers to reverse the Magistrate’s refusal to enlarge time. Without one of these steps being taken, whichever was appropriate, the appeal could not commence nor become on foot.

The matter next came on before Surman J. on the 21st February 2002. The prosecution is recorded as querying whether the matter had been committed to the High Court. Of course it had, and it seems hard to comprehend why this query was raised. The judge ordered that the matter of the costs order be adjourned sine die, with liberty to apply. With respect, it is not clear what jurisdiction, if any, was being exercised here. The issue was whether at that time there was an appeal afoot on which the High Court could eventually rule. It is undisputed the appeal is incompetent without an enlargement order.

If an order were necessary from this court, for clarity and for finality’s sake, and since cause has not been shown why the appeal should remain on the court list, I now order the striking out of the purported appeal to this court, and I dismiss it.

Revision

The grounds of appeal simply stated, “That the trial Magistrate had erred in law in awarding costs at the preliminary inquiry”. These grounds do not state why the Magistrate was wrong. It is always helpful, indeed necessary, for grounds of appeal to set out succinctly the nature of the error, so as to enable the Respondent to respond, and the appeal court to comprehend the nature of the Appellant’s complaints: see Section 311 (1) of the CPC; Practice Direction “Applications for Leave to Appeal” (1970) 54 Cr. App. R. 280 at p 282; R. v Nicco (1972) Crim. L.R. 420; Joveci Josefa v The Police [1946-55] 4 Fiji L.R.; Fiu Varea v R (unreported) Suva Supreme Court Crim. App No. 69/84; 9 November 1984. The Magistrate awarded the $200 costs at the end of the preliminary inquiry, an interlocutory proceedings, after the prosecution had repeatedly failed to comply with Section 256(2) of the Criminal Procedure Code. This was the section laying down the information which had to be included in the written statements of the prosecution witnesses so as to avoid the necessity for oral testimony. In order to permit the prosecution to get their papers into the form in which they should have been in the first place, the Magistrate granted an adjournment to the 3rd October 2000, and when the prosecution was still not ready, a further adjournment to the 4th October 2000. The defence had to attend these extra court dates. There was therefore a proper basis existing for an award of costs. The award of $200 was a nominal sum in no way related to the real costs of engaging a solicitor to appear in court on two extra occasions. As to whether an order of costs could be lawfully awarded by the court at an interlocutory stage, and whether it was empowered to do so either under the adjournment or the preliminary inquiry sections of the CPC, outside of the ambit of Section 158 (2), are issues which will have to await an appeal properly afoot and fully argued R. v Rokotuiwai (unreported) Suva High Court, Criminal Case No. HAC0009 of 1995S; 31st March 1998; Graham Southwick v The State (unreported) Court of Appeal Crim. App. No. AAU0061 of 1999S; 1 March 2002. I decline to exercise revisionary powers in this case.

Enlargement of Time Applications

The Fiji cases seem at times to be in conflict as to whether an election has to be made by an Appellant to seek enlargement from the Magistrate’s Court or from the High Court, and as to whether the High Court’s jurisdiction is appellate only or concurrent also as was held in AG v Yee Noon [1964] 10 Fiji L.R. 249 at p 251 C; compare bail applications in Asgar Ali v R [1964] 10 Fiji L.R. 235 at p 240 A; see contra The State v Dharmendra Krishna and Anor (unreported) Lautoka High Court Miscellaneous Action No. HAM0020/95L; 3rd November 1995. One school of thought reads an election requirement into the proviso to Section 310, which states:

“Provided the Magistrate’s Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.” (Emphasis added)

See too Shiu Narayan v Bhajan [1963] 9 Fiji L.R. 139 at p 140, interpreting Order XXXVI Rule 4 of the Magistrates Courts Rules, a similarly worded provision, albeit for civil cases. The other school holds to the view that the concurrent jurisdiction of the High Court to hear the application afresh is always available. The new Section 308 (8) of the CPC 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.”

This amendment would appear to remove any doubts on the matter and it can now be safely assumed that Parliament has provided for appeals against interlocutory orders in the Magistrate’s Court, which would include an order of costs. The issue as to whether order means a determinative order in the proceedings in order to attract rights of appeal is therefore no longer relevant Asgar Ali (supra) at pp 236-9); Ramesh Patel v State (unreported) Court of Appeal Crim. App. No. 17 of 1996; 14 September 1997 at p 4. The prosecution here could have pursued its appeal against the order of costs, and questionably could have pursued an appeal against the Magistrate’s refusal to enlarge time, or to have made a concurrent application for enlargement to the High Court: AG v Yee Noon (supra at p 251 C). There were cases on finality which were not referred to the judge in that case but which were canvassed by Lyons J. in Dharmendra Krishna and in the dissenting judgment of Elias J in Prem Singh v Krishna Prasad & 2 Others (unreported) Supreme Court Civil appeal No. CBV0001 of 2002S; 29 August 2002. This issue will have to await an appropriate case for full argument on an enlargement application. It is unlikely the Director will ever seek to bring a frivolous or vexatious appeal, one of the reasons often stated for not allowing appeals against refusals of enlargement of time. In this case enlargement was simply not pursued by the Director after the Magistrate’s refusal.

Costs of Appeal

Appeal costs can be awarded by the High Court in an order “...... to be paid by either party to an appeal as may seem just.” [Section 317 (1) of the CPC]. This position is different from that in the Court of Appeal in criminal appeals where “no costs shall be allowed to either side” [Section 321 (1) of the Court of Appeal Act Cap. 12].

The Respondent’s solicitors here had to engage counsel to attend the High Court on 4 occasions. Had the Appellant decided to go ahead with an enlargement application in the High Court or to have abandoned further pursuit of the appeal at an early stage, these costs would not have been incurred by the Respondent. Correspondence was initiated by the Respondent’s solicitors pointing out the prerequisite for enlargement. Still a decision was not made one way or the other by the Appellant and so the proceedings drifted.

It is important that a greater accountability be adhered to and that more care be taken not to cause others to incur unnecessary costs which must, unlike the State, be borne privately. In the circumstances an award of costs for the Applicant’s conduct is appropriate here: Sayed Mukhtar Shah v Rice and 3 Others (unreported) Court of Appeal Crim. App. No. AAU0007 of 1997S; 12 November 1999.

In the result:

1. The appeal of the Appellant is held to be incompetent and is dismissed.
   
2. I decline to exercise revisionary powers.
   
3. The Appellant is to pay costs of this appeal to the Respondent of $800.
   

A.H.C.T. GATES
J U D G E

Solicitor for the Appellant: Director of Public Prosecutions, Suva
Solicitors for the Respondent : Messrs A.K. Narayan & Co., Ba