State v Khan [2004] FJHC 375; HBJ0006.2003L (23 February 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBJ0006 OF 2003L

BETWEEN:

THE STATE
Plaintiff

AND:

AJMAL GULAB KHAN
1st Defendant

ATTORNEY GENERAL OF FIJI
2nd Defendant

Counsel for the Plaintiff: Mr. Iqbal Khan
Counsel for the Defendants: Ms. Suliana Tabaiwalu

JUDGMENT

APPLICATION

The applicant seek by way of Notice of Motion leave to institute judicial review proceedings seeking to review the decision of the 1st Respondent following the inquest into the death of Deo Mani s/o Ganga Naidu.

The motion was opposed and came before Byrne J. on 30 June 2003 when he granted a stay of the decision of the 1st Respondent that “charges of manslaughter be laid against the 1st Applicant and the charge of being an accessory to manslaughter be laid against the 2nd Applicant.”

The application is supported by affidavits sworn on 30 June 2003 and 20 January 2004 by Karuna Garan Pillay. The respondents rely on an affidavit of Alvina Ali sworn on 19 August 2003.

The record of the Magistrate’s Court was available and Counsel for the Applicants and Counsel for the Respondents filed written submissions and made further oral submissions.

BACKGROUND

Deo Mani s/o Ganga Naidu died at Lautoka Hospital on 8 November 1999.

The record of the Magistrate’s Court shows that the Inquest No. 2 of 2000 first came before the Court on 4 December 2000 for mention. The inquest came before the Magistrate’s Court on eleven subsequent occasions before it was finally dealt with on 9 June 2003.

The evidence was taken from Dr. Dhanna Gounder, who performed a post mortem on the deceased; various relatives of the deceased; Constable Raoneet Singh and the applicants.

The evidence of the 2^nd Applicant was that he took the deceased to the 1^st Applicant for “treatment.”

The treatment apparently involved the deceased ingesting jafir, lemon and rum and then dunking or having his head dunked in the sea. He subsequently became unconscious and ultimately died.

The record shows that the 1^st Applicant was cautioned by the Learned Magistrate early in her evidence.

On 17 June 2003 the Learned Magistrate delivered his decision where he relevantly stated that the deceased died at Lautoka Hospital on 8 November 1999 at 1245 hours; “in my opinion Gita is responsible for the death of Deo Mani and ought to be charged for manslaughter. The cause of death was due to water in the lungs and this water entered due to the actions and directions of Gita; furthermore some of the deceased were taken to Gita on the recommendation of witness Karuna Pillay. There is some evidence of him being charged for being an accessory also. This matter should have been subject of a more vigorous investigation by police and charges laid earlier rather than waiting and finding an inquest.”

The Magistrate then made the following recommendations: -

“1. A full and further investigation with a view to charges of manslaughter being laid;

2. Police ought to be more vigilant in cases as these showing inquest can be held quickly and a finding might stopped the Attorney General’s Office also has asked for various adjournments when hearing dates were arranged. These matters ought to be given priority in public interest.”
   

LEGISLATION

The conduct of inquest is governed by the Inquest Act [Cap. 46].
Section 7 states:

“7(1) – If, upon receiving all necessary reports, a magistrate shall be satisfied, without holding an inquest, as to the cause of death, he shall report to the Attorney-General the cause of death as ascertained to his satisfaction.

(2) A magistrate may hold an inquest if there is no body available, in any of the circumstances referred to in section 3.

(3) A magistrate shall not hold any inquest under this Act if he has reason to believe that criminal proceedings against any person for having caused the death of the deceased have been, or are about to be, commenced.

(4) In all other cases, the magistrate shall proceed as soon as possible to hold an inquest but may adjourn the inquest sine die if any such criminal proceedings as aforesaid are commenced.”

Section 9 states:

“9(1) – A magistrate holding an inquest shall have all the powers exercisable by a magistrate in holding a criminal trial under the provisions of the Criminal Procedure Code and shall give at least fourteen days notice of his intention to hold any inquest by the insertion of a notice in the Gazette and a notice, in such languages, as he considers desirable, in such editions of a newspaper published and circulating in Fiji or some part thereof, as he shall think fit.”

Section 14 states:

“14(1) – Any person whose conduct is likely in the opinion of the magistrate to be called in question at an inquest, shall, if not duly summoned to give evidence thereat, be given at least four days notice of the date, hour and place at which the inquest will be held.

(2) If the conduct of any person is called in question at an inquest on grounds which the magistrate thinks substantial and which related to any matter referred to in section 15 and if that person is not present at the inquest and has not been duly summoned to attend or otherwise given notice of the holding of the inquest, the inquest shall be adjourned to enable him to be present, if he so desires.”

And Section 15 states:

“15(1) – The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, and any matters relevant thereto, namely: -

(a) who the deceased was;

(b) the cause and the date and place of death;

(c) the persons, if any, to be charged with murder, manslaughter, infanticide, causing death by dangerous driving or of being accessories before the fact to such offences, should the magistrate find that the deceased came by his death by murder, manslaughter, infanticide or by dangerous driving;

(d) the particulars for the time being required under the provisions of the Births, Deaths and Marriages Registration Act to be registered concerning the death.

(2) For the purpose of avoiding doubt it is hereby declared that a finding under paragraph (c) of subjection (1) shall not operate as a committal for trial nor shall such proceedings be deemed to be a preliminary inquiry.”

THE GROUNDS ON WHICH RELIEF IS SOUGHT

The applicants seek to rely on grounds that might be summarized as follows: -

(a) The decision of the 1^st Respondent is ultra vires the Inquest Act;

(b) The 1^st Respondent neglected to take into account all the relevant facts and circumstances when recommending that further investigations be carried out that the 1^st Applicant be charged with the manslaughter on the 2^nd Applicant for accessory to manslaughter.

(c) The 1^st Respondent exceeded his powers in that –

1. He took into consideration irrelevant matters;
2. He is not taking into consideration irrelevant matters;
3. He acted unreasonably in breach of the Inquest Act and/or Arbitrarily;
   

(d) The 1^st Respondent failed and/or neglected to give any opportunity to the Applicants regarding the proposed charges;

(e) The decision of the 1^st Respondent is tainted with the illegality and procedure impropriety;

(f) The 1^st Respondent conducted the inquest in breach of Section 9 of the Inquest Act;

(g) The decision to lay charges against the Applicant are in breach of Natural Justice.

THE LAW

The granting of leave to apply for judicial review is governed by Order 53 Rule 3 of the High Court Rules.

The conditions precedent must be satisfied before leave can be granted:-

(a) an application for certiorari must be made within three months of the decisions of the decision sought to be reviewed – Order 53 Rule 4(2);

(b) The applicant for leave must have a sufficient interest in the matter to which the application relates – Order 53 Rule 3(5);

(c) The applicant must show he has an arguable case – Fiji Airline Pilots’ Association v. Permanent Secretary for Labour & Industrial Relations (Civil Appeal No. ABU0059U of 1997 – Judgment 27 February 1998).

THE ISSUE

The Counsels agree that condition (1) and (2) are not in issue. The matter therefore for the consideration of the Court is whether or not the Applicants have shown they have an arguable case. In Fiji Airline Pilots’ Association v. Permanent Secretary for Labour & Industrial Relations. It was stated:-

“The basic principle is that the Judge is only required to be satisfied that the material available discloses what might, on further consideration, turn out to be an arguable case in favour of granting the relief. If it does, he or she should grant the application – per Lord Diplock in Inland Revenue Commissioners v. National Federation of Self Employed, [1981] UKHL 2; [1982] AC 617 at 644. This principle was applied by his Court in National Farmers’ Union v. Sugar Industry Tribunal and Others (CA 8/1990; 7 June 1990). In R v. Secretary of State for the Home Department ex p. Rukshanda Begum (1990) COD 107 (referred to in 1 Supreme Court Practice 1997 at pp.865 and 868) Lord Donaldson MR accepted that an intermediate category of cases existed where it was unclear on the papers whether or not leave should be granted, in which event a brief hearing might assist, but it should not become anything remotely like the hearing which would ensue if the parties were granted leave.”

The issues raised by the applicants are all adequately addressed by the respondents and the court record with the exception of the failure of the 1st Respondent to cause notice of his intention to hold the inquest to be advertised as required by Section 9 of the Inquest Act.

That is what Lord Diplock described as “procedural impropriety” in Counsel of Civil Service Unions v. The Minister for Civil Service [1985] A.C. 374. He said in page 411: -

“I have described the third head as “procedural impropriety“ rather than failure to observe basic rule of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.”

There is therefore an arguable case on the basis of the failure to advertise the intention to hold the inquest as required by Section 9 of the Inquest Act.

CONCLUSION

The granting of leave to apply for judicial review will be futile. The Magistrate merely made a recommendation that “a full and further investigation with a view to charges of manslaughter being laid.”

The applicants were both in attendance at the inquest and gave evidence. They had notice of it and could have been legally represented.

What purpose would relevantly be served by compliance with Section 9?

It is trite that the Court will refuse to issue a remedy with which serves no useful purpose. It is said: -

“This is a controversial area of the law since it raises a conflict between the court’s duty to ensure that governmental agencies act lawfully, and the public interest in discouraging unnecessary litigation. It is a fundamental principle that the Court will not act in vain, so the decision will not be quashed where the Court takes the view that the defect did not affect the actual decision – R v. Crown Court at Knightsbridge, Ex p Marcrest Properties Ltd. [1983] 1WLR 300, C.A.” – “Applications for judicial review – Law and Practice of the Crown Law Office – Second Edition – Aldaus and Alder.”

I am of the view that the failure to advertise the intention to hold the inquest did not affect the learned Magistrate’s decision.

ORDERS

1. Leave is refused.
2. The applicants are to pay the respondents’ costs.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
23^RD FEBRUARY, 2004