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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
MISCELLANEOUS APPLICATION CASE NO: HAM 125 OF 2010
CRIMINAL CASE NO.: HAC 19 OF 2010
BETWEEN:
SAKIUSA TUISOLIA & PATRICIA IMRANA JALAL
APPLICANTS
AND:
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
Hearing: 1st and 2nd July 2010.
Ruling: 19th July 2010.
Counsel: Applicants - Mr. Devanesh Sharma
Respondent - Ms. Puamau
RULING ON STAY
Introduction
[1] On 12th March 2010, the Director Public Prosecutions filed information against Applicants Sakiusa Tuisolia and Patricia Imrana Jalal. Originally Fiji Independent Commission Against Corruption (FICAC) instituted actions separately against the two Applicants and later conduct of the prosecution was transferred to Director of Public Prosecutions. Thereafter the two cases filed separately against the Applicants were amalgamated.
The information in 8 counts namely were:
FIRST COUNT
Statement of Offence
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL between the 11th day of July 2008 continuously to the 29th day of July 2008 at Suva in the Central Division conducted a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without a Restaurant License.
SECOND COUNT
Statement of Offence
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL between the 11th day of July 2008 continuously to the 29th day of July 2008 at Suva in the Central Division conducted a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without displaying the relevant Regulations and Restaurant License at a prominent place within the said premises.
THIRD COUNT
Statement of Offence
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL between the 29th day of August at Suva in the Central Division continued the conducted of a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva in direct disobedience of a lawful order issued on the 29th day of July 2008 by the Health Inspector of the Suva City Council under the Public Health Act Cap 111 ordering the cessation of the illegal operation of the said restaurant.
FOURTH COUNT
Statement of Offence
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL between the 5th day of February 2009 continuously to the 4th day of June 2009 at Suva in the Central Division conducted a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without a Restaurant Licence.
FIFTH COUNT
Statement of Offence
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL between the 5th day of February 2009 to the 4th day of June 2009 at Suva in the Central Division conducted a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without displaying the relevant Regulations and Restaurant Licence at a prominent place within the said premises.
SIXTH COUNT
Statement of Offence
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL between the 5th day of June 2009 continuously to the 29th day of August 2009 at Suva in the Central Division operated a food establishment, namely ROMA’S HOOK AND CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without a Licence.
SEVENTH COUNT
Statement of Offence
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL on the 11th day of August 2009 at Suva in the Central Division continued the conduct of a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva in direct disobedience of a lawful order issued on the 5th day of August 1009 by the Health Inspector of the Suva City Council ordering the cessation of the illegal operation of the said restaurant.
EIGHTH COUNT
Statement of Offence
Particulars of Offence
SAKIUSA TUISOLIA on the 5th day of August 2009 at Suva in the Central Division gave false information to the Health Inspector of the Suva City Council that he would comply with the Public Health Regulations that he has not complied with since the 11th of July 2008, in order to avoid being prosecuted by the Health Inspector, but instead sold off the illegal business operation situated at shop 11, Victoria Corner, Gordon Street, Suva namely HOOK & CHOOK FISH AND CHIPS to one Richard Chow of Freshet International.
[2] This application has been made by the two applicants urging court that the charges laid against the Applicants be dismissed or permanently stayed upon the following grounds.
(a) The charges were statute barred pursuant to Section 219 of the Criminal Procedure Code at the time the charges were filed,
(b) The Prosecution was wrongly instituted in the name of FICAC and subsequently taken over by the Director of Public Prosecutions in its own name,
(c) That the charges if validly laid within time ought to have been prosecuted by the Local Authority in the Magistrate’s Court,
(d) The charges are contrary to Section 131 and 132 of the Public Health Act,
(e) The charges were laid contrary to Section 33(3) of the Food and Safety Act 2003,
(f) The charges have been brought contrary to Section 65(1) of the Food and Safety Act 2003,
(g) The charges against Ms. Jalal are brought contrary to Section 134 of the Public Health Act,
(h) The charges under Section 144 of the Penal Code are defective and statute barred, and
(i) Continued prosecution of the charges would be an abuse of process.
[3] The court carefully considered the submissions made by counsel on behalf of both parties.
The Law
[4] The inherent power to stay criminal proceedings to prevent abuse of process has long been recognised in common law. But it should only be employed in exceptional circumstances (State v Waisale Rokotuiwai HAC 0009 of 1995).
[5] In Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Mason CJ High Court of Australia said:
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial, "of such a nature that nothing that a trial Judge can do in the conduct of the trial can relieve against its unfair consequences......"
[6] The authorities also recognise that an abuse of court’s process could take a variety of forms. In Rogers v The Queen (1994) 181 CLR 181, Mason CJ commented:
".....The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories. Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process".
[7] The nature of the superior court’s power to stay its own proceedings was addressed by Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378, which was discussed in Zollo v National Australia Bank Ltd and Anor (2009) SASC 38, 23 February 2009
[8] The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.
[9] In Queen v John David Leece No. ACT G20 of 1995 FED. No. 268/96 Criminal Law-Appeal-Practice and Procedure in the Federal Court of Australia, citing Jago v District Court of New South Wales (1989)168 CLR 23, Gallop and hill JJ, said:
"Underpinning the Power of the Court to stay proceedings is the requirement that the court intervene where those proceedings constitute an abuse of process. As Brennan J said in Jago "An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amount to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process".
[10] An example of a circumstance where the process of a criminal trial will be incapable of serving the purpose it is intended to serve will be where the proceedings are such that "they can clearly be seen to be foredoomed to fail" (Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 293).
[11] I bear in mind these principles to consider the grounds urged for stay in this case.
[12] By this application the Applicants move that the charges be dismissed or stayed permanently. It was submitted that the court could act in terms of Section 290 of the Criminal Procedure Decree 2009.
[13] Section 290 provides for Pre Trial orders, which is a new provision that was not in the Criminal Procedure Code Cap.21. The objectives of this part are mentioned in Section 289.
[14] Section 290 (1) reads as follows:
Prior to the trial of any criminal proceedings either party may make application to the court having control of the proceeding for any order necessary to protect the interests of either party or to ensure that a fair trial of all the issues is facilitated, and such applications may relate to:-
(a) any determination as to the most appropriate locality of the court at which the trial should take place, and the transfer of the proceedings to the most appropriate court;
(b) compelling the attendance of any witness or the production of any evidence at the trial;
(c) compelling the provision by the prosecution to the defence of any briefs of evidence, copies of documents or any other matter which should fairly be provided to enable a proper preparation of the defence case;
(d) a challenge to the use of any report or other evidence that may unfairly prejudice the defence case;
(e) a challenge to the validity of the charge, complaint or information as disclosing no offence under the law;
(f) a challenge to the proceedings on the grounds of the breach of any fundamental human right of the accused person, or any applicable human rights issue; and
(g) any matter concerning the giving of an alibi notice and the information to be provided in such a notice.
(h) the signing of agreed facts under section 135(1) of this Decree.
[15] It was submitted on behalf of the Applicants that the applicants have challenged the charges on number of grounds and that the charges are bad in Law.
[16] In terms of Section 290(1) (e) such applications may relate to a challenge to the validity of the charge, complaint or information as disclosing no offence under the Law.
[17] In this case clear offences are disclosed in all counts. Therefore Section 290(1) (e) has no application to this case.
[18] As mentioned earlier the Law on permanent stay is based on common Law principles, which is different from Section 290 applications of which objectives are given in Section 289 of the Criminal Procedure Decree.
[19] I will now deal with the application for permanent stay.
Ground (a)
The charges were statute barred pursuant to Section 219 of the Criminal Procedure Code at the time the charges were filed.
Section 219
Except where a longer time is specially allowed by law, no offence, the maximum punishment for which does not exceed imprisonment for six months....or a fine of one hundred dollars or both, shall be triable by a magistrates’ court, unless the charge or complaint relating to it is laid within six months from the time when the matter of such charge or complaint arose.
[20] Counsel for State (Respondent) submitted at the hearing that Section 187 of the Criminal Procedure Decree applies on limitation of time as the Criminal Procedure Decree has retrospective effect.
[21] This position cannot be accepted for following reasons.
Part XXII of the Criminal Procedure Decree 2009 provides transitional provisions.
[22] Section 301(1):-
A court hearing any proceeding for an offence which was commenced prior to the commencement of this Decree may apply the provisions of this Decree if no judgment has been made in the case and no sentence has been imposed on the offender prior to the commencement of this Decree.
[23] The words "this decree may apply" shows a discretion given to court.
Further Section 299(1) says:
Nothing in this decree affects the validity of any court proceedings commenced or conducted prior to the commencement of this Decree.
[24] Criminal Procedure Decree 2009 came into operation on 1/2/2010.
These proceedings commenced in the Magistrates Court prior to this date.
[25] Therefore, Part XXII of the Criminal Procedure Decree 2009 will not invalidate the proceedings which was filed prior to 1/2/2010. I accordingly find that limitation time given in Section 219 of Criminal Procedure Code Cap. 21 will apply to this case.
[26] The penal section of the Public Health (Hotels, Restaurant and Refreshment Bars) (Suva) Regulations Cap. 111, Section 16 reads as follows:
Any person convicted of an offence under the provisions of these Regulations shall be liable on conviction in the case of a first offence to a fine not exceeding $20, and in the case of a second offence to a fine not exceeding $40, and in the case of a subsequent offence to a fine not exceeding $100 or to imprisonment for a term not exceeding 6 months or to both such fine and imprisonment, and in the case of a continuing offence, to a further fine not exceeding $4 for each day during which the offence continues.
[27] In Count Nos.1 and 2 of the information, the period of the continuation of the offence is given as 11th July 2008 – 29th July 2008 which is 19 days (both days inclusive).Therefore the maximum fine specified as $20 for the first offence and further fines at the rate of $4 a day for 18 days during the continuance of the offence will add up to a total of $92 which is less than $100.00.
[28] Further, the charges were filed after the lapse of 6 months. Hence in terms of Section 219 of the Criminal Procedure Code, Count Nos. 1 and 2 are caught within the limitation given in the said Section 219 and are foredoomed to fail.
[29] As conceded by the counsel for the applicants in their submissions Section 219 0f the Criminal Procedure Code will not apply to counts 4 and 5 of the information.
I will deal with Grounds (b), (c), (d), (e) together.
[30] Counsel for Applicants contends that Section 2A (1) of the FICAC Promulgation 11 of 2007 makes provision where FICAC may prosecute in its own name before any court. It was submitted that the promulgation empowers the FICAC only to investigate and prosecute those offences mentioned therein. Therefore FICAC is not empowered to prosecute these offences in its own name. Counsel for Applicants acknowledges that cases could be transferred from FICAC to DPP but it was submitted that, that didn’t cure the fact that FICAC had no authority to institute these charges under its own name.
[31] Further, it was submitted on behalf of the applicants that defence did not accept the contention of the state, that anyone could commence prosecutions for regulatory offences or even Penal Code offences.
[32] Further, it was submitted that Justice Shameem’s general ruling in FICAC v Inoke Devo that any person could lay a complaint in the Magistrate’s Court and the court had no powers to refuse to accept such complaints was not acceptable.
[33] In the case of FICAC v Inoke Devo Criminal Case No. HAC. 177 of 2007 Justice Shameem referred to the case LTA v Ajay Singh (2003) FJCA 6AAU 00500.2002S where the Court of Appeal considered the right of the LTA to prosecute in the absence of any statutory provision where it said:
It is perfectly clear that any person has the right to bring and to prosecute a case in court. When a police officer brings a case and prosecutes it, he does not do so by virtue of his position of a police officer, but because he is exercising the right of any member of the public to lay an information and prosecute an offence; Lund v Thompson (1959) 1 QB 283.
[34] I am inclined to agree with Justice Shameem. The submission of the counsel for Applicants that the FICAC had no power to commence a prosecution other than what is conferred by Promulgation No.29 cannot sustain. Therefore, FICAC had the power to commence proceedings in this case.
[35] Certificate issued in terms of Section 33(3) of the Food Safety Act 2003 is filed of record. In terms of Section 67 of the Food Safety Act the said letter of appointment dated 17/12/2009 is in respect of a specific proceeding as mentioned in Section 67 of the Act.
[36] Therefore, the intentions of the Central Board of Health is clear and I find that in terms of Section 67, FICAC is empowered to institute and carry on proceedings under the Act.
Ground (f)
[37] Applicants submit that in terms of Section 65(1) of the Food Safety Act 2003 the charges against the two Applicants are misconceived, premature and they are brought in order to embarrass them. They submit that in terms of Section 65(1), the body corporate has to be convicted first before charges were laid against them.
[38] Section 65(1) of the Food Safety Act states:
If a body corporate is convicted of an offence under this act, the Managing Director or similar officer of the body corporate may also be charged with the same offence as if the act of the body corporate was a personal act of such Director of Officer.
[39] State submits that facts in the cases of Pacific Harbour International Hotel v Buttala (1995) FJHC 35 and Solomon v Solomon and Co. Limited which were brought to the notice of court by the applicants, were different from the facts of this case. It was submitted by the state that the law does not protect or shield the Director or Directors from criminal liability when it was their actions that resulted in direct breaches of the Law. I agree with the submission of the State.
[40] The involvements of the Applicants of the running of the restaurant in question is a question to be decided at the trial. But, when it comes to Count No. 6 of the information, court will have to consider the specific provision provided in the Food Safety Act. With regard to other Counts, in the absence of specific provision on the piercing of the veil of incorporation, it would not protect the Directors from criminal liability.
[41] In terms of Section 65(1) of the Food Safety Act it is a condition precedent that the prosecution gets a conviction against the body corporate before charging the Managing Director or a similar officer. In this case no charges were filed against the body corporate, that is Bottomline Investments Limited. Therefore the prosecution is prevented by charging the Applicants by Law (Section 65(1)) prior to getting a conviction against the body corporate. Hence, Count No. 6 is foredoomed to fail.
Ground (g) The charges against Ms. Jalal are brought contrary to Section 134 of the Public Health Act.
[42] In Counts 3 and 7 both the Applicants are charged for Disobedience of Lawful orders contrary to Section 144 of the Penal Code.
[43] Applicants argue that the notices in issue which were alleged to have been disobeyed were neither addressed nor served on the 2nd Applicant Imrana Jalal.
[44] State submits that operating a business without a licence is an absolute liability offence and not a strict liability offence and abatement notices are given in strict liability offences.
[45] In this case in Counts 3 and 7, both Applicants are charged for disobedience of Lawful orders. Only the 1st Applicant Sakiusa Tuisolia was addressed and served with such an order.
[46] The notices dated 21/7/2008 and 28/7/2009 which were marked and produced as Annexures 8 and 9 to the affidavit of Sakiusa Tuisolia which are relevant to Counts 3 and 7 are neither addressed no served on the 2nd Applicant Imrana Jalal. Having heard the submissions of learned Counsel for Applicants and Respondent, and upon an examination of the notices referred to above, I am of the view that a charge of disobedience of lawful orders cannot be framed against a person on whom no such order was made or served. Therefore, this court concludes that Counts 3 and 7 against the 2nd Applicant are foredoomed to fail.
[47] Further, it was submitted by applicants that the 2nd notice dated 28/7/2009 which was sent to the 1st Applicant was defective, and that it was submitted that in terms of Section 72(2) of the Food Safety Act, Sections 40 – 48 of the Public Health Act (Cap.111) were repealed.
[48] The Food Safety Act came into operation on 5th June, 2009 by commencement notice published in Supplementary Gazette No. 7 of 5/6/2009. The regulations made under the Public Health Act (Cap.111) are made in terms of Section 40 which were repealed on 5/6/2009. Therefore the 2nd notice which was sent to 1st Applicant dated 28/7/2009 under regulations of the Public Health Act is without a legal basis and it could not be acted upon. Therefore Count No.7 is foredoomed to fail.
[49] Counsel for State submitted that this could be cured by an amended information and, that reference to the wrong regulation would not affect the validity of the notice. I am unable to agree with this submission for the reasons stated above.
Ground (h) .The charges under Section 144 are defective and statute barred.
[50] On behalf of the Applicants it was submitted that in terms of Section 144 of the Penal Code a person could be charged only, unless any other penalty or mode of proceeding is expressly prescribed.
[51] It is clear from plain reading of section 144 of the Penal Code, that a person can be punished in terms of this section only if there is no other penalty or mode of proceeding is prescribed in respect of such disobedience.
[52] Counts 3 and 7 are offences contrary to Section 144 of the Penal Code. Contention of the applicants is that Section 141 of the Public Health Act provides a general penalty and that therefore the Applicants cannot be charged under Section 144 of the Penal Code.
[53] In terms of regulation 4(1) of the Public Health regulations, it is an offence to conduct a restaurant without a licence. Therefore, a person can be charged in terms of those regulations for operating a restaurant without a licence.
[54] Section 141 of the Public Health Act states:-
Any person who contravenes or fails to comply with any provision of this Act or any regulation, by-law, order or notice made or issued thereunder shall be guilty of an offence and shall, where no specific penalty is provided, be liable to a fine not exceeding ten dollars or in the case of a continuing offence to a fine not exceeding four dollars a day for each day during which the offence continues after conviction and in default of payment of any penalty under this section to imprisonment for any period not exceeding one month.
[55] Therefore it is clear that for disobedience of lawful orders or notices, a person can be charged under Section 141 of the Public Health Act. Therefore, as specific provision for penalty is provided in Section 141 of the Public Health Act, the complainants in this case cannot be charged for disobedience of lawful orders in terms of Section 144 of the Penal Code. Therefore Count Nos. 3 and 7 are misconceived and bad in Law.
[56] Permanent Stay should not be granted if there is a remedy, the State submits. But even if the court permits to charge for such disobedience in terms of Section 141 of the Public Health Act, limitation in Section 219 of the Criminal Procedure Code will apply. In terms of Section 141 of the Public Health Act for continuing offence penalty of $4 a day starts after conviction. Therefore the Counts 3 and 7 are clearly foredoomed to fail, even if the Applicants are charged in terms of Section 141 of the Public Health Act.
[57] Counsel for applicants further submitted that the alleged offences mentioned in Counts 2 and 5 can only be charged against the licencees. It was the position of the Prosecution that the 1st and 2nd Applicants were not in possession of a licence and it was on that basis that the Applicants were charged for operating a restaurant without a restaurant licence. In terms of Section 14(1) of the Public Health (Hotels, Restaurants and Refreshment Bars) Regulations, a licencee is obliged to display the licence. Therefore the Count Nos. 2 and 5 are clearly bad in law and foredoomed to fail.
[58] Making submissions on the background of the case Counsel for Applicants submitted that prosecution cannot be allowed to continue based on the doctrine of waiver and estoppel. The doctrine of estoppel does not operate in criminal proceedings in common law jurisdictions Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251.
[59] In view of the above reasoning charges in counts 1,2,3,5,6 and 7 are foredoomed to fail and intended proceedings in respect of these counts constitute an abuse of process, as complained by the applicants.
[60] In conclusion, I make order permanently staying proceedings in relation to counts 1,2,3,5,6,and 7 of the information.
[61] Prosecution may proceed with count 4 against both applicants and with count 8 against the 1st applicant.
[62] I make no order as to costs.
Priyantha Fernando
Puisne Judge.
At Suva
19th July 2010.
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