Fiji Independent Commission Against Corruption v Rasiga [2007] FJHC 107; HBM 0050.2007 (7 August 2007)

IN THE HIGH COURT OF FIJI
AT SUVA

CIVIL JURISDICTION
ACTION NO. HBM 0050 OF 2007

BETWEEN

FIJI INDEPENDENT COMMISSION
AGAINST CORRUPTION
(Applicant)

AND

JOSAIA RASIGA
(1^st Respondent)

AND

ABBAS ALI
(2^nd Respondent)

BEFORE THE HONOURABLE JUDGE- MR JUSTICE JOHN E. BYRNE

Counsel for the Applicant: A.K. Narayan & S. Sharma
Counsel for the 1^st Respondent: M. Raza
Counsel for the 2^nd Respondent: G.E. Leung & Ms J. Raniga

Date of Hearing: 1^st August 2007
Date of Ruling: 7^th August 2007

RULING

The Respondents were each charged with one count of Official Corruption under Section 106(a) of the Penal Code Cap 17. The charges were laid on the 10^th of May 2007 by the Acting Deputy Commissioner of the Applicant and alleged in the first count that the 1^st Respondent between the 17^th of July 2002 and the 2^nd of January 2007 at Suva, being a person employed in the Public Service as Director of the Criminal Investigation Department of the Fiji Police Force corruptly received a benefit for himself of $5,530.00 in cash on account of favour being shown, or to be shown afterwards by him to Abbas Ali and others against whom numerous complaints for Police investigations had been reported at Nadi Police Station over the years. The second count charges the 2^nd Respondent with Official Corruption contrary to Section 106(b) of the Penal Code Act Cap 17. It is alleged that between the 17^th of July 2002 and the 2^nd of January 2007 at Nadi, being the Managing Director of Fantasy Company Limited, he corruptly remitted to the 1^st Respondent Josaia Rasiga $5,530.00 in cash on account of favour being shown, or to be shown afterwards to the 2^nd Respondent and others for the numerous complaints reported for Police investigations at Nadi Police Station over the years.

The Respondents appeared on various dates in the Magistrate's Court between the 10^th and 31^st of May 2007. On the latter date the learned Magistrate referred to this Court for its determination six Constitutional questions pursuant to Section 120(4) of the Constitution of Fiji. Those questions were:

1) Does the President of Fiji have legislative authority under Section 85 of the Constitution of Fiji?

2) Is the Fiji Independent Commission Against Corruption Promulgation No 11 of 2007 a lawful enactment?

3) Did the President of Fiji have constitutional authority to enact Promulgation 11 of 2007?

4) Is Promulgation No. 11 of 2007 ultra vires the Constitution of Fiji?

5) Is Section 45 of the Constitution of Fiji operative?

6) Assuming Promulgation 11 of 2007 was determined by the Courts under the doctrine of necessity to have been validly enacted, is that Promulgation within the parameters of the principles referred to Madzimbamuto v. Lardner-Barke [1968] UKPC 2; (1969) 1 AC 645?

The parties first appeared before me on the 11^th of July 2007 when counsel for the Applicant applied for an adjournment of three weeks to consider whether the Applicant would proceed with the charges. The Respondents agreed to an adjournment of two weeks and appeared before me again on the 1^st of August. Before me on that date was a Notice of Motion by the Applicant for an order to vary, amend or withdraw the charges laid against the Respondents on the ground stated in an affidavit in support by Loraini Seru an Inspector of Police in Suva and a prosecutor with the Applicant that such a course "will assist in the timely administration of justice ".

When I put it to Mr Narayan for the Applicant that the Applicant would have to decide and inform me for which one of the three remedies an order was sought,
Mr Narayan said, the Applicant wished to withdraw the charges laid against the Respondents. He accepted that an order for all three of the remedies sought would be meaningless and unenforceable.

Mr Narayan stated that the application was made under Section 201(1) of the Criminal
Procedure Code Cap 21 which states:

“The prosecutor may with the consent of the Court at any time before a final order is passed in any case in the Magistrate's Court withdraw the complaint”.

Mr Raza for the 1^st Respondent submitted that under Section 201 the Applicant had to give the Court reasons for withdrawing the charges, for example, whether the withdrawal was based on lack of evidence or whether because the Applicant conceded that it was unconstitutional. Mr Narayan replied that no evidence had been given as yet and therefore there was no question of jeopardy of the Respondents. He did not concede anything on the question of constitutionality of the Applicant.

However he stated that as the charges were laid under Section 106 of the Penal Code the Applicant now considered it was better to leave their prosecution to the Director of Public Prosecutions but said that the Applicant had the power to charge the Respondents under Promulgation No. 11 of 2007.

Mr Leung for the 2^nd Respondent then stated that neither Respondent conceded the constitutionality of the Promulgation whereupon Mr Narayan stated that the Applicant
wanted to avoid any constitutional argument and this was its reason for withdrawing the charges.

In my opinion it is unnecessary for the Applicant or for that matter, any prosecutor under Section 201 to give reasons for the withdrawal of any complaint. The Section does not stipulate that reasons must be given and I do not consider there is anything implied in the Section which would require the giving of reasons by a prosecutor. I was referred to no authority on the question.

Mr Leung then stated that although the charges were withdrawn the Respondents still wanted the Court to give its ruling on the questions referred to it by the Magistrate's Court. Mr Raza suggested for a moment that before the charges could be withdrawn both Respondents had to give their consent to the withdrawal. This was certainly a novel submission and I ruled against it immediately.

As to whether I should consider the constitutionality of the establishment of the Applicant, Mr Narayan argued that if the charges were withdrawn there was no matter which could be referred back to the Magistrate's Court. He submitted that under Section 120(6) of the Constitution the High Court has jurisdiction to supervise any civil or criminal proceedings before a subordinate Court and may, on an application duly made to it, make such orders and give such directions as it considers appropriate to ensure that justice is duly administered by the subordinate Court.

I accept that submission and shall give a direction to the lower Court not to proceed any further with the charges by the Applicant against the Respondents. I therefore consider it unnecessary to rule on the constitutional questions referred to this Court by the Magistrate's Court. Having given that decision the Respondents then applied for costs of $5,000.00 each against the Applicant. Their counsel stated that the Respondents had been put to considerable expense by the laying of the charges against them and that it was reasonable for the Court to make an order for costs.

It was submitted to me that the Respondents were compelled to come to the High Court and that the charges were frivolous and vexatious.

I cannot agree that the Respondents were compelled to come to the High Court because they did so of their own volition and raised constitutional issues for the consideration of this Court. In my view this does not amount to compulsion.

It is accepted by the Respondents that normally costs are not awarded in criminal cases.

Section 158(2) of the Criminal Procedure Code Cap 21 states that it shall be lawful for a Judge of the High Court or any Magistrate who acquits or discharges a person accused of an offence, to order the prosecutor to pay to the accused such reasonable costs as the Judge or Magistrate thinks fit. In the present case neither Respondent has been acquitted or discharged. Only the charges against them have been withdrawn.

In those circumstances is it proper and reasonable for this Court to award costs against the Applicant? In my judgment it is not.

The matter is governed by authority both here and overseas. The position at common law was that no costs were normally awarded against the State in a criminal matter. In Criminal Appeal No. AAU0002 of 2002S the State v. Ramesh Patel in a judgment delivered on the 15^th of November 2002 the Court of Appeal said at page 10 of the judgment quoting from Griffiths CJ in re Powell (1834) 6 QLR 36, 38:

"There is no doubt that it is at common law a prerogative right of the Crown not to pay costs in any judicial proceeding, and that this prerogative of the Crown will not be held to be taken away by statute except by express words or necessary implication".

The Court then quoted from a Tasmanian Criminal Appeal Templar v. The Queen [1992] TASSC 29; (1992) 1 Tas R 133, where Crawford J, delivering the principal judgment in the Court of Criminal Appeal said:

“According to Kenny's Outlines of Criminal Law (1952) 515, the common law knew nothing of costs and when they were first introduced by statutes the Crown was not mentioned which, according to the author, was "an omission which Blackstone elevates into rules, that it is a prerogative of the Crown not to pay costs, and that it would be beneath its dignity to receive them. Hence, as criminal proceedings were technically at the suit of the Crown, no judgment for costs could be given in them”.

The Court then held that on these authorities, it was 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.

The answer to the question I posed is, therefore, that the Respondents are not entitled to any costs in this matter. I should only add that I am surprised that counsel with such experience in the criminal Courts as Mr Raza did not draw my attention to Patel's case.

The orders I make therefore are:

1) That the Magistrate's Court is not to proceed any further with the charges laid by the Applicant against the Respondents. I make this order pursuant to Section 120(6) of the Constitution.

2) There will be no order for costs against the Applicant.

John E Byrne
JUDGE

At Suva
7^th August 2007