State v Suru [2004] FJHC 474; HAC0028.2004L (1 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0028 OF 2004L

THE STATE

V

KINISIMERE SURU

Ms. A. Driu for the Appellant
Mr. M. Naivalu for the Respondent

Hearing: 13 September 2004
Ruling: 1 October 2004

RULING

The State appeals the bail determination of the Learned Magistrate on the ground that he erred in law when he granted bail to the respondent.

The respondent was on the 13^th July 2004 charged before the Lautoka Magistrates Court with murder. The detail of which is:

Statement of Offence

MURDER: Contrary to section 199 and 200 of the Penal Code, Cap. 17.

Particulars of Offence

KINISIMERE SURU, on the 29^th day of June 2004, at Navini Island Resort, Lautoka in the Western Division, murdered her newborn baby.

On the 26^th July 2004, the magistrate transferred the matter to the High Court on the application of the prosecution.

The respondent then sought bail, which was opposed on the basis that the Learned Magistrate did not have power to grant bail after a transfer order had been made. The Learned Magistrate considered the issue and granted bail.

The appellant submits that whilst section 227 of the Criminal Procedure Code provides: -

“If a magistrate makes an order for transfer of a charge or proceeding to the High Court –

(a) ..........

(b) The accused person shall be remanded, either on bail or in custody to appear in the High Court on a fixed date not exceeding 28 days from the date of the order of the transfer;

(c) ........”

that the consideration of a bail application comes solely within the Bail Act 2002.

It is further submitted by the appellant that the definition of “accused person” in section 2 of the Bail Act does not include a person on remand following an order of transfer under section 227 of the Criminal Procedure Code.

“Accused person” is not defined in the Criminal Procedure Code.

Whilst accused person is defined in section 2 of the Bail Act as follows:

“2(1) In this Act, unless the context otherwise requires –

“accused person” or “person accused of an offence” means a person who has been arrested for, or charged with, an offence and –

(a) who is awaiting summary trial;
(b) who has been committed for trial on indictment;
(c) whose trial has been adjourned;

...........”

“A reader of legislation must be familiar with both the general Act and any particular definitions included in the legislation under consideration. But it is also necessary to bear in mind that virtually all interpretation provisions apply “unless the contrary intention appears.” Even if the Act in which they appeared does not include such a phrase, it would be implied: In the matter of The Fourth South Melbourne Building Society [1883] VicLawRp 46; (1883) 9 VLR (Eq) 54; Buresti v Beverage (1998) 158 ALR 445 at 447 (in that case it was also said that there was probably no difference in effect between the “contrary intention” formula and that of “except where otherwise clearly intended)” – Statutory Interpretation in Australia 5ed. D.C. Pearce, R.S. Geddes – p.155.

Section 2 of the Bail Act employs the phrase “unless the context otherwise requires” and accordingly, it is not necessary to imply such a provision to interpret the legislation.

The Bail Act 2002 appears to have been cobbled together and uses the term “accused person” and “person” interchangeably.

The Criminal Procedure Code (Amendment) Act 2003 is subsequent to the Bail Act.

At the time the Bail Act 2002 commenced, the only provision for “transfer” from the Magistrates Court to the High Court was by committal.

Section 13 of the Bail Act provides: -

“(1) A court may determine an application for bail by an accused person, as defined in section 2(1).”

Section 2(1) covers all categories of person that might seek bail at the date of the Bail Act.

There are two general approaches to the interpretation of legislation; the literal approach and the purposive approach.

The literal approach was defined and explained by Higgins J. in Amalgamated Society of Engineers v The Adelaide Steamship Co. Ltd [1920] HCA 54; [1920] 28 CLR 129 at 161-2 as follows:

“The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intend of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or improbable.”

In Grey v Pearson [1857] EngR 335; [1857] 6 HLC 61 at 106 Lord Wensleydale placed a limitation in the literal approach. He said:

“I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the word is to be adhered to, unless that would lead to some absurdity, or some repugnant or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the word may be modified, so as to avoid that absurdity and inconsistency, but no farther.”

The purposive approach has its origins in the “mischief rule” set out in Heydon’s case [1584] EngR 9; [1584] 3 Co. Rep 7a at 7b. The purposive approach was applied by determining the purpose of the Act, or the particular provision in question (“mischief” with which it was intended to deal), and by adopting an interpretation of the words that was consistent with that purpose. It was generally accepted that the purposive approach applied only when an attempt to apply the literal approach produced an ambiguity or inconsistency.

The only interpretation of section 2(1) of the Bail Act consistent with the legislative regime of the Criminal Procedure Code and the Bail Act, is one that enables the determination of an application for bail by a person, the subject of an order for transfer to the High Court.

The appeal is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
1 October 2004