State v Naigam [2010] FJHC 381; HAC012.2010 (3 September 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 12 OF 2010

BETWEEN:

STATE

AND:

1. EMMANUEL KRISHNA NAIGAM

S/O NATHANIEL NAIGAM

2. RANITA DEVI D/O NAR DEO
   

Counsel: Ms Bull - for the State
Mr. Kohli - for the Accused

Ruling: 03.09.2010

RULING ON COST

1. This is a case of Conspiracy and Attempted Murder against accused person mentioned above.

2. This was fixed for trial from the 2nd August 2010 for two weeks.

3. Mr. Kohli who is the defence counsel had informed Court that he is held up in an ongoing trial at High Court, Suva.

4. Because of Mr. Kohli's absence, this case couldn't be reached and the matter was postponed to 10th August 2010 (it was a mention date).

5. On the 10/08/201 Mr. Lomaloma appeared on the instructions of Mr. Kohli and informed the Court that he has no full instructions from Mr. Kohli and he doesn't know when will Mr. Kohli will be available.

6. The Court informed Mr. Lomaloma of Section 150 (4) of the Criminal Procedure Decree and requested to inform Mr. Kohli to inform the Court of his position regarding awarding of cost for vacating the trial which is fixed for two weeks.

7. This case was mentioned on the 13/08/2010, and Mr. Kohli appeared on the date, and undertook to file written submission on the 26/08/2010.

8. On the 26th August, matter postponed to 30/08/2010 for the State to consider an amendment to the charge of attempted murder.

9. On the 30/08/2010, the State filed amended information and copies served on the accused persons. A mention date is given 31/08/2010 to take plea of the accused persons.

10. On the 31/08/2010, plea taken. Both accused persons pleaded not guilty and the matter is fixed for mention on 03/11/2010 to fix a date for hearing.

11. The date of the incident was on 28/12/2008. This is one of few old pending matters before the High court of Labasa.

12. Now I consider Mr. Kohli's submissions. He submits that several reasons under the headings of 'Past Practice of the Courts,' 'Present Practice of the Courts' and double booking, and he regrets the inconvenience.

13. I am unable to reproduce his 2 ½ pages submission here. I am attempting to summarize his submission as I understand. In the past in the Civil High Court they do not know who is the judge but in criminal cases, since the trial is fixed by the judges themselves counsels know who is the judge.

14. He was held up in a two weeks trial at Suva before the High court. He was of the impression that the trial will be before His Lordship Justice Goundar. Mr. Kohli presumed the Labasa trial also before his Lordship. But when the trial was taken up it was before another judge.

15. Since the trial at Suva exceeded the schedule days and it overlapped with the trial dates of this case.

16. He explains of another case where he appears as appellant's counsel. I do not see it is relevant to this matter at this junction.

17. Now he understands that all Criminal Cases are called before Justice Goundar and His Lordship distributes cases to other judges.

18. He submitted that he had not double booked any of his cases. He further submitted that there is a double booking in Civil Case in the 1st week of August.

19. He submitted that there is no fault on his part, further, in his 26 years of Practice, he never mislead any court and he regrets any inconvenience.

20. Now I consider the vacating or unable to reach this trial.

21. Trial in this case was fixed by Justice Fernando on the 28th May 2010. On that day Mr. Kohli was present, and he had represented both accused persons. The trial date was 02/8/2010 for two weeks.

22. There is no other trials fixed during these two weeks. Since there are few sessional sittings at Labasa High Court, all arrangements were done. Including the judge to travel by air and accommodation. There is no possibility of cancellation at the last moment because of non refund procedure in the airlines and other places.

23. If the trial is vacated all the expenses done towards the trial will be at waste.

24. Apart from this trial, no other trials were fixed for these two weeks. Some adhoc matters were fixed that shows how important to reach the trial.

25. A Senior Counsel with such a lot experience should have known to estimate his case. Not one or two days, it is two weeks 10 days of Court's working time is absolutely wasted.

26. On perusing the cause list of the Civil High court of Labasa, I find Mr. Kohli has taken up case in the Civil Court also.

27. I am informed that Mr. Kohli had cases at the Magistrates Court of Labasa also during this period.

28. As per the Court of Appeal Judgment, I understand Mr. Kohli has appeared in the Court of Appeal also.

29. We should be mindful apart from the cost of the judge, the Court staff, witnesses, prosecution, even the accused persons time are valuable and it has a price.

30. Considering all above factors, I think it will be nothing but reasonable to award a cost on the counsel.

31. Now I consider the relevant law, section 150 of the Criminal Procedure Decree states as follows:

"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."

32. The award of costs against counsels is clearly sets out at Section 150(4) of the Criminal Procedure Decree.

"A judge or magistrate may take any other order as to costs as may be required in the circumstances to –

1. defray the costs incurred by any party as a result of an adjournment sought by another party;
   
2. recompense any part 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;
   

100. penalize 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
     

4. otherwise meet the interests of justice in any case.
   

33. In Akinisi Panapasa vs the State Crim Misc HAM 101 of 2010 His Lordship Justice Goundar states as follows:

"The decree has retained the circumstances provided by the Code, there is now a wider power to order costs against either prosecution or the defence."

34. Considering all above circumstances, I do not wish to make any comments on Mr. Kohli who is a Senior Practitioner, but the time and money wasted has to be known to him.

35. I am not quantifying the actual cost in awarding cost against Mr. Kohli, may be a little portion of the actual expenses be awarded as a cost to him. I fix the cost at $1000.00.

36. Cost to be personal and be paid within 14 days.

S. Thurairaja
JUDGE

Solicitors: - Office of the Director of Public Prosecutions for State
- Office of Kohli & Singh for Accused