Panapasa v State [2010] FJHC 227; HAM101.2010 (2 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 101 of 2010

BETWEEN:

AKANISI PANAPASA
Applicant

AND:

THE STATE
Respondent

Hearing: 1st June 2010
Reasons: 2nd July 2010

Counsel: Ms Neelta for Applicant
Ms S. Puamau for State

RULING

[1] During the hearing of an application for stay by the accused on 1 June 2010, I ordered the prosecution to pay costs in a sum of $500.00 to the defence within 14 days for causing an adjournment and in the interests of justice. I now give my reasons.

[2] Before the Criminal Procedure Decree 2009 (the Decree) came into force on 1 February 2010, the court could order costs against the prosecution only in limited circumstances that were provided by section 158(2) of the Criminal Procedure Code (the Code). Under the Code, costs could be awarded against the prosecution when an accused had been discharged or acquitted and the court was satisfied that the prosecutor had no reasonable grounds for bringing the proceeding or has unreasonably delayed it.

[3] Whilst the Decree has retained the circumstances provided by the Code, there is now a wider power to order costs against either the prosecution or the defence.

[4] Section 150 of the Decree reads:

(1) A judge or magistrate may order any person convicted of an offence or discharged without conviction in accordance with law, to pay to a public or private prosecutor such reasonable costs as the judge or magistrate determines, in addition to any other penalty imposed.

(2) A judge or magistrate who acquits or discharges a person accused of an offence, may order the prosecutor, whether public or private, to pay to the accused such reasonable costs as the judge or magistrate determines.

(3) An order shall not be made under sub-section (2) unless the judge or magistrate considers that the prosecutor either had no reasonable grounds for bringing the proceedings or has unreasonably prolonged the matter.

[5] Further, costs can be ordered in the following circumstances provided by subsection (4):

(a) defray the costs incurred by any party as a result of an adjournment sought by another party;

(b) recompense any party for any costs arising from any conduct by any other party which delays a trial or requires the expenditure of monies as a result of the conduct of that party during a trial;

(c) penalise a lawyer for any improper action during a trial, and in such a case the order may be that the lawyer pay the costs personally; and

(d) otherwise meet the interests of justice in any case.

[6] In the present case, costs were ordered against the prosecution for causing an adjournment. The procedural background of these proceedings for that reason must be considered.

[7] On 17 October 2008, the accused was charged with 20 counts of larceny by servant. At the relevant times, she was an employee of Jans Rental Cars (Fiji) Limited trading as Budget Rent-A-Car. The accused was the Branch Manager of Budget Rent-A-Car Suva. The allegations covered a period from January 2006 to July 2008.

[8] After numerous adjournments in the Magistrates’ Court, the case was eventually transferred to the High Court for trial. The accused first appeared in the High Court on 13 March 2009 but the Information was not filed until 26 August 2009. During this period, the accused appeared in person and made numerous requests for disclosures. On 26 August 2009, some disclosures were served on the accused but the accused insisted that the disclosures were incomplete and that she had requested the prosecution to disclose additional documents, namely, rental agreements of the transactions subject of the charges.

[9] On 8 April 2010, Ms Neelta appeared for the accused and informed the court that they had not received the requested documents. Because of incomplete disclosures the trial which was scheduled to commence on 1 June 2010 had to be vacated. On 18 May 2010, Ms Neelta informed the court of the accused’s intention to apply for stay of prosecution on the ground of non disclosure of documents material to the defence case.

[10] On 25 May 2010, the application for stay was filed, and was set for hearing on 1 June 2010. The court made orders for filing of submissions before the hearing date, which the prosecution did not comply. On the day of the hearing, counsel for the State informed the court that the prosecution did not wish to respond by affidavit but rely on submissions only.

[11] After the defence was heard, the hearing was adjourned for lunch, to continue with the State’s submissions. When counsel for the State returned after lunch for continuation of hearing, she applied for leave to file two affidavits from employees of the complainant company challenging some material aspects of the submissions advanced by counsel for the accused.

[12] Counsel for the State submitted that she was not raising any new issue but merely responding to the submissions of the accused. I am unable to accept this submission. According to the affidavits filed by the prosecution, the complainant contends that they do not have in their possession certain audit reports requested by the accused. In her affidavit, the accused clearly stated that the complainant refused to disclose those audit reports. By not responding to the affidavit of the accused before the commencement of hearing, the defence was led to believe that the requested documents were in possession of the complainant but was withheld from them. Thus, the prosecution of the accused was an abuse of process on the ground of non-disclosure of material evidence. After these arguments were advanced, the prosecution then filed affidavits disputing the existence of the requested documents.

[13] Counsel for the accused submitted that if the State would have given them notice of the affidavits before the commencement of hearing, then they would have subpoenaed the former employees of the complainant, who were the authors of the requested documents, to prove the existence of those documents.

[14] From the reading of the affidavits filed by the prosecution, I find that they contained fresh evidence and that it can be fairly concluded that the accused was caught by surprise by the matters raised in the affidavits.

[15] It must be borne in mind that due process requires the litigants be heard and the hearing be fair. One party must not be allowed to circumvent the procedures to take an unfair advantage over the other party. In the present case, the prosecution was given ample opportunity to reply to the affidavit of the accused before the commencement of hearing of the application for stay. The prosecution chose not to respond by affidavit before the commencement of hearing. After the submissions by the defence, the prosecution filed affidavits raising an issue that caught the defence by surprise. Fairness requires the defence be given an opportunity to respond to the new issue, and this could only be done by an adjournment to allow the defence to subpoena their witnesses and lead evidence on the disputed issue. The adjournment could have been avoided if the prosecution had acted diligently and filed timely affidavit in reply as ordered by the court.

[16] For the reasons given, I find the prosecution caused the adjournment of hearing of the stay application and in the interests of justice the defence is entitled to costs.

Daniel Goundar
Judge

At Suva
2nd July 2010

Solicitors:
Neelta Law for Applicant
Office of the Director of Public Prosecutions for State