Land Transport Authority v Dayal [2003] FJHC 95; HAA0109J.2002S (6 March 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0109 OF 2002S

Between:

LAND TRANSPORT AUTHORITY
Appellant

And:

RAJESH DAYAL
s/o Suk Lal
Respondent

Hearing: 28th February 2003
Judgment: 6th March 2003

Counsel: Ms Neelta for LTA
Respondent in Person

JUDGMENT

This is an appeal against a costs order in the Suva Magistrates’ Court. The Respondent was charged as follows:

Statement of Offence

FAILURE TO USE SEAT BELT: Contrary to Regulation 27(1)(a) and 87 of Land Transport (Traffic) Regulation 2000.

Particulars of Offence

Rajesh Dayal, on the 12th day of May 2002 at Nasinu in the Central Division drove a goods vehicle registration number E8122 on Beaumont Road Narere (FNTC) and failed to wear seat belt provided in the vehicle.

The case was called on 20th June 2002. The Respondent did not appear. It was called again on the 7th and 28th of August 2002. The Respondent did not appear, nor did he appear on the 24th of October or the 11th of November 2002. On the 11th of November, the prosecution called one witness who tendered his own affidavit. The Respondent was convicted and fined $100 (in default 10 days imprisonment). He was ordered to pay the prosecution costs of $11.00 in default 1 days imprisonment.

The Appellant appeals against this costs order, saying that the Land Transport Authority was a body corporate and had to pay court fees of $11.00. Further there are other costs incidental to the proceedings to the total amount of $25.00.

In her submissions, counsel referred to the High Court decisions of Suva City Council –v- Savita Nand Lal Crim. App. HAA0021 of 1997, and Land Transport Authority –v- Samuela Taoi Crim. App. No. HAA0030 of 2002.

In Samuela Taoi (supra) I said:

“The discretion given to the court under section 158 of the Criminal Procedure Code must be exercised judicially. A good place to start in considering whether or not to order costs, is to calculate the costs incurred by the private prosecutor in bringing the prosecution. Ordinarily the costs incurred by such bodies in prosecuting ought to be paid by the accused unless there are particular circumstances which justify non-payment of costs.”

The court record does not show that the prosecution asked for any specific amount for costs. Nor does the court file. Although counsel submitted that the prosecutor had requested $25.00 costs, this is not reflected in the court record. If the prosecutor requests specific costs, then he or she must inform the Magistrate so that the request can be judicially considered. On the record, all that is shown is that the learned Magistrate awarded $11.00 as filing fees. These fees are provided for by the Magistrates’ Court (Amendment) Rules 1994. The charge is $10 on issuing summons to the defendant for a criminal case.

The prosecution was probably entitled to the costs involved on each hearing date that the Respondent failed to appear. However, it is the prosecution’s duty to justify any such request, and for the Magistrate to rule upon it. In the absence of either request or justification, I cannot say that the learned Magistrate erred in awarding only $11.00 costs.

For these reasons, this appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
6th March 2003