Shah v Nand [2003] FJHC 205; HAM0018D.2003S (30 April 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM0018 OF 2003S

Between:

FARIA SHABANA SHAH
Applicant

And:

P.C. VERMA NAND
Respondent

Hearing: 22nd April 2003
Ruling: 30th April 2003

Counsel: Mr G. O’Driscoll for Applicant
Mr. A.K. Singh for Respondent

RULING

On 16th April 2003 the Applicant filed a notice of motion in the High Court seeking leave to serve “disclosure documents” on four police officers, to subpoena those officers as witnesses, and to have the case transferred to another Magistrate on the ground of actual bias. The application is purportedly made in the inherent jurisdiction of this court, and is supported by the affidavit of Eroni Veretawatini.

The matter was called in Chambers on the 17th of April. Counsel for the Respondent objected to the appearance, as counsel, of Mr Veretawatini saying that he had sworn the affidavit in support of the application and that he could not appear as counsel.

A perusal of the affidavit showed that the affidavit contained factual material in relation to the Magistrates’ Court hearing, much of which was likely to be disputed. I therefore upheld counsel’s objections and asked Mr Veretawatini to brief counsel to appear for the hearing of the application. Mr O’Driscoll then appeared for the Applicant on the 22nd of April for argument but subsequently by letter to court said he had no brief to make further appearances. I have proceeded to ruling.

The background to this application is a private prosecution on a charge of “Annoying Female” contrary to section 154 of the Penal Code.

According to the affidavit of Eroni Veretawatini, the case had been set down for hearing on the 20th of February 2002 and on the 25th of March 2002 but was adjourned because of the unavailability of counsel. It was then set for hearing on the 15th of April and counsel for the Applicant again asked for an adjournment on the ground that he was expected in another court. Counsel also asked for time to disclose witness statements of four witnesses to the defence and to subpoena them. The learned Magistrate refused.

The case proceeded until the afternoon when it was adjourned to 22nd of April 2003. Counsel again requested if subpoenas could be served on the four witnesses named in the motion but he refused.

The Applicant then filed this application asking this court to make the necessary orders. At the hearing date set for the application, counsel for the Respondent sought leave to file an answering affidavit. The affidavit of P.C. Verma Nand was filed on 22nd April 2003. It states that on 11th January 2003, his lawyer had written to Mr Veretawatini requesting full disclosure, and warning him that if witnesses were called without disclosure, counsel would object. It further states that Mr Veretawatini wished to have a witness statement read out in court and that PC Verma had heard Mr Veretawatini “coaching” a witness on the ingredients of the offence. It states that the court record (which is annexed to the affidavit) shows that the learned Magistrate did not threaten Mr Veretawatini with contempt, as alleged by him, but had told him not to show disrespect to the court. It finally states that Mr Veretawatini had not conducted himself as a prosecutor ought to, had caused delay in the proceedings by “double-booking himself” and that the learned Magistrate did not show any signs of bias.

The annexed court record shows that disclosure was ordered to be supplied on 11th February 2003 and again on 20th February 2003. The trial proper commenced on 15th April 2003. During examination-in-chief, Mr Veretawatini asked for leave to allow the complainant to read her statement out in court. This was not given. Mr Veretawatini then asked if the recorder of her statement could come to court to tender the statement. This was not permitted on the ground that the statement of the recorder had not been disclosed to the defence. The learned Magistrate then said that he was warning Mr Veretawatini for showing (it appears) disrespect to the court. Mr Veretawatini then tried to read the complainant’s statement from the bar table but that was resisted by the defence. The court did not allow it. During cross-examination the complainant said that Mr Veretawatini had read her statement to her outside court. Mr Veretawatini claimed solicitor/client privilege and that the court adjourned for ruling. This application was then filed.

The application

At the outset, I asked counsel why this application was made in the inherent jurisdiction when section 308(8) of the Criminal Procedure Code provided for a right of appeal from interlocutory orders. Counsel suggested that the High Court could exercise its inherent jurisdiction in matters requiring review of decisions of subordinate courts.

However, the powers to review decisions of the lower courts in criminal matters are also governed by a statutory provision. Section 323 of the Criminal Procedure Code provides:

“The Supreme Court may call for and examine the record of any criminal proceedings before any magistrates’ court for the purpose of satisfying itself as to the correctness, legality, or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such magistrates’ court.”

Section 325(5) provides:

“Where an appeal lies from any finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”

The Criminal Procedure Code therefore already gives to the High Court, wide statutory powers to review decisions of the Magistrates’ Courts either in the appellate or revisional jurisdiction. The inherent jurisdiction of the court should only be used to allow the court to act effectively within its statutory jurisdiction. In Taylor –v- Attorney-General (1975) 2 NZLR 675, Richmond J, said 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.”

In Grahame Bruce Southwick –v- The State Crim. App. No. AAU0020 of 1996, a decision which pre-dated section 308(8) of the Criminal Procedure Code, the inherent jurisdiction of the court was moved to revoke a bail condition. The Fiji Court of Appeal held that the High Court did not have jurisdiction to entertain the application or to vary bail conditions as he had purported to do.

In R –v- Connolly (1964) AC 1254, Lord Morris of Borth-y-Gest said:

“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.”

The orders sought in this case are to order disclosure of witness statements, to issue subpoenas for 4 witnesses and to order the continuation of the trial before another Magistrate. Are these orders necessary to enforce the rules of practice of the High Court? Are they necessary to prevent abuses of the process in the High Court or to ensure the effective administration of justice? I do not think so.

The orders

It is in very rare circumstances that a court should exercise its inherent jurisdiction to interfere with the conduct of a trial in the lower court. In this case, counsel appears to have made no application before the learned Magistrate to issue subpoenas for the witnesses named in the motion. He was given plenty of time to comply with orders for disclosure. There was much time wasted arguing about the reading of the complainant’s statement in court. However that statement was either a previous consistent statement which was inadmissible unless the prosecution could show it was a recent complaint, or a previous inconsistent statement in which case, it could be tendered during cross-examination after the inconsistency was established. On the court record there was no basis for reading it aloud either from the witness box or from the bar table. Counsel’s application in that regard was misconceived.

Further, no application was made for the transfer of the case to another magistrate. Applications on the basis of bias should always be made to the presiding judge or magistrate. A right of appeal lies from a refusal under section 308(8) of the Criminal Procedure Code.

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.

For these reasons I decline to consider this application. The trial in the Magistrates’ Court must proceed.

Costs

The Respondent has been put to expense and inconvenience as a result of the bringing of this incompetent application. He should be the recipient of a costs order. However, there is no statutory provision for making such an order until the conclusion of the case, and the Fiji Court of Appeal in State –v- Ramesh Patel Crim. App. No. AAU0002 of 2002 said:

“On these authorities, we are in no doubt that it is the law in Fiji that the Court has no jurisdiction to award costs against or in favour of the State, except where the jurisdiction to do so is expressly conferred by statute. Nor do we consider that there can be any basis for a distinction between interlocutory and final proceedings. The rule applies to both.”

The rule applies equally to costs against the private prosecutor.

Conclusion

This application fails for lack of jurisdiction. There is no order as to costs.

Nazhat Shameem
JUDGE

At Suva
30th April 2003