Narayan v The State [2004] FJHC 205; HAM0028J.2004S (21 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISC. CASE NO: HAM0028 OF 2004

Between:

RAJENDRA NARAYAN
Applicant

And:

THE STATE
Respondent

Hearing: 11th May 2004
Judgment: 21st May 2004

Counsel: Mr. E. Veretawatini for Applicant
Mr. B. Solanki for State

JUDGMENT

The Applicant applies for a stay of an order for disqualification from driving, pending appeal. The application is opposed by the State.

On the 26th of February 2004, the Applicant was tried on one charge of permitting a person to drive without a license, and one charge of permitting another to drive a motor vehicle in contravention of third party risks. The prosecution called two witnesses. Their evidence was, apparently, that the Applicant requested one of the witnesses to go with him to Vatuwaqa to pick up a vehicle. The witness drove the vehicle back to Waila. He had no driving license, and the vehicle was not covered for third party insurance risks. The witness was stopped by the police and he was charged with driving without a license. The Applicant’s defence was that he did not request the witness to drive his vehicle. The learned Magistrate said:

“It is fundamental that to prove Count 1, the prosecution must demonstrate by way of evidence that the accused knowingly permitted PW1 to drive his private motor vehicle with the full knowledge that PW1 was not the holder of a valid driving license.”

He accepted the evidence of the witness, and of the Applicant’s caution statement to the police (which contained a confession to Count 1) and convicted the Applicant on both counts.

The Applicant was a first offender and said nothing in mitigation, although he was asked to address the court on whether or not he should be disqualified. He was fined $100 on Count 1, and $50 on Count 2. He was disqualified from driving for 12 months.

In his affidavit supporting his motion for stay, the Applicant says that he is 34 years old with 3 children who attend school. He says that he is the proprietor of Rajen’s Towing Services and he needs to drive 24 hours a day. He says that his business will suffer “irreparable damages and loss of income” as a result of the order for disqualification. He annexes his petition of appeal. The merits of the grounds of appeal are impossible to evaluate without the court record. However, one of the grounds is that the learned Magistrate had ordered disqualification without being aware of the mitigating circumstances set out in the Applicant’s affidavit. From the copy of the judgment and sentence given to me in court, I can only observe that the Applicant was given an opportunity to mitigate and to tell the Magistrate why he should not be disqualified from driving. He chose not to make any submissions.

In his submissions, counsel for the Applicant submitted that the appeal was obviously meritorious because of inconsistencies in the prosecution case, because there were exceptional circumstances justifying a stay order in that he was reliant on driving for his livelihood, and that he would suffer great losses before his appeal is heard.

The State opposes the application. Counsel submits that there is no statutory power to suspend a disqualification order pending appeal but concedes that there is an inherent power to stay any proceedings on the grounds of delay and abuse of process. However, the State says that there is no inherent jurisdiction to stay a disqualification or a fine.

Jurisdiction

Section 315(1) of the Criminal Procedure Code provides:

“Where a convicted person presents or declares his intention of presenting a petition of appeal the [High Court] or the court which convicted such person may if in the circumstances of the case it thinks fit, order that he be released on bail, with or without sureties, or if such person is not released on bail shall, at the request of such person, order that the execution of the sentence or order against which the appeal is pending be suspended pending the determination of the appeal. If such order be made before the petition of appeal is presented and no petition is presented within the time allowed the order for bail or suspension shall forthwith be cancelled.”

This provision appears to apply only to custodial sentences. In Hayat Mohammed v. R 9 FLR 53, MacDuff CJ said of the predecessor to section 315:

“It is clear from the wording of the section that an order that the execution of the sentence or order against which an appeal is pending be suspended has no application in the case of a sentence of a fine or of an order of disqualification under the Traffic Ordinance. The qualification “if such person is not released on bail” restricts the suspension to a sentence or order entailing a person’s detention in custody.”

This statement was adopted by Fatiaki J in Sefanaia Marau v. The State Crim. App. No. 79 of 1990. Of course, neither appellate court was asked to consider whether an inherent jurisdiction existed in the High Court to stay any of the orders of a lower court pending appeal. However Byrne J was asked to consider exactly that question in State v. Ratu Ovini Bokini HAM0032 of 1998. In that case, the State asked for the stay of committal proceedings until an interlocutory appeal from a refusal of the presiding magistrate to disqualify himself. Byrne J adopted the following passage from the speech of Lord Devlin in Connelly v. Director of Public Prosecutions (1964) AC 1254 at 1347:

“My Lords, in my opinion, the judges of the High Court have in their inherent jurisdiction, both in civil and in criminal matters, power (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the court’s process is used fairly and conveniently by both sides.”

Byrne J then said:

“I respectfully adopt that passage and say that if the High Court has power to stay its own processes, even more so it has the power to stay proceedings in an inferior court.”

This view was endorsed by the Court of Appeal in the same case (Crim. App. AA001 and 003 of 1999S). After finding that the High Court had statutory jurisdiction to hear interlocutory appeals, the Court said, at page 7:

“If it had jurisdiction to hear the appeal, then it follows inexorably that the High Court had power to order and stay pending the hearing of the appeal. The High Court has inherent power to control its own processes and to ensure that holding measures are taken pending the hearing of the appeal to enable the exercise of its appellate jurisdiction to be meaningful.”

In this case, in the absence of a statutory power to stay a disqualification order, I find that an inherent jurisdiction exists to order such a stay, where it is necessary for the meaningful exercise of the High Court’s appellate jurisdiction. However, I do not consider it necessary to exercise that power in this case. The order for disqualification is for 12 months from the 7th of April 2004. The court record must be sent to the High Court within 28 days of the filing of the petition of appeal. With the evidence of only two prosecution witnesses, there is no reason for undue delay in the typing of the record. It is not suggested that the court had no powers to order disqualification, and the Applicant made no attempt to mitigate after conviction. Although the order will undoubtedly affect his business, I see no hardship in the Applicant employing a driver with a valid license to drive for him whenever necessary. I cannot accept that the disqualification order will cost him irreparable loss pending appeal.

For these reasons, while I consider that I do have inherent powers to consider a stay, I refuse the application in this case.

Nazhat Shameem
JUDGE

At Suva
21st May 2004