State v Ratuva [2012] FJHC 1236; HAA009.2012 (26 July 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 009/2012

BETWEEN:

STATE
Appellant

AND:

ELENOA RATUVA
Respondent

BEFORE: Mr. Justice P. K. Madigan

COUNSEL: Mr. M. Mataiva for the State
Respondent in Person

Date of Hearing : 17th July 2012

Date of Judgment: 26th July 2012

JUDGMENT

1. In the Labasa Magistrates Court, on the 16th April 2012 a Resident Magistrate ordered the appellant to pay $300 costs to the accused pursuant to Section 150(4)(a) of the Criminal Procedure Decree 2009; such costs being awarded to defray the costs incurred by the respondent as a result of the State's application to adjourn the trial in this matter.
   
2. The state seeks to appeal this costs order on the basis that the learned Magistrate breached the principles of natural justice by awarding costs without hearing submissions from either party and secondly that the learned Magistrate erred in not properly assessing the costs in the cause.
   
3. The appeal has been properly sanctioned by the Director of Public Prosecutions pursuant to Section 246(1) of the Criminal Procedure Decree.
   
4. The respondent first appeared before the lower court on the 3rd May 2010 when she was charged with one count of abuse of office. On the 21st May 2010 it was fixed for hearing on the 14th December 2010. On that date the Court adjourned the hearing until the 30th December 2010. On that date respondent was excused appearance and the State made an application to amend the charge. The matter was adjourned until 9 February 2011 for that to be done. On the 9th February the prosecution sought to amend the charge to "disobeying a lawful order". The respondent objected and applied for costs. The learned Magistrate allowed the amendment but denied the costs application. The next hearing date was fixed for the 6th December 2011. On that date the court further vacated the trial and a new date of 16 April was fixed.
   
5. The prosecution, not being able to summon all necessary witnesses, and being unable to uplift all requisite exhibits, on the 11th April 2012 filed a notice of motion with affidavit to vacate the trial date. The learned Magistrate refused that application to vacate.
   
6. On the date fixed for hearing (16th April 2012) the State renewed its application for the reasons that not all witnesses were available and for the need to arrange a replacement exhibits officer from the Police. The respondent objected, submitting that she had waited a long time for hearing. In a written ruling handed down that day, the Magistrate allowed the application for adjournment but awarded costs of $300 against the State in favour of the accused to defray her costs incurred by the delay. This award was pursuant to Section 150(4)(a) of the Criminal Procedure Decree 2009.
   
7. The respondent in a written submission to this Court prays that the conduct of the prosecution has breached her right to a speedy trial and she would like the evidence in the matter to be aired as soon as possible.
   
8. Analysis

There is no doubt that the award of costs is within the jurisdiction and discretion of the learned Magistrate, nor is there any doubt that such an award is appealable to this Court under Section 151(1) of the Criminal Procedure Decree 2009.

9. The sole question remains therefore whether the award of costs against the State was just in the circumstances.
   
10. The vacation of the trial date on the 16th April 2012 was the third time the hearing was aborted but it is clear from the record that the previous two occasions that the trial dates were vacated was not the fault of the prosecution. On each occasion (14/12/10 and 6/12/11) the vacation of the date was on the Court's own motion.
    
11. When making the order for costs, the learned Magistrate did not ask for submissions from either party on the matter, which although not mandatory, would have been in the interests of natural justice so to do.
    
12. It is quite clear that the State was not being very diligent in bringing this matter to trial early enough; leaving the preparation and summoning of witnesses to a very late stage. However the state should not be punished for this by a costs order.
    
13. One application to vacate a hearing date from the State should perhaps be tolerated when good reasons are advanced; and in balancing the State's one application against the Court's two deferrals of trial dates, fairness would be seen in not penalising the state.
    
14. In the premises the costs award against the State is unreasonable and the order for costs is set aside.
    
15. It is noted that the matter is now set down for hearing on 30 October 2012. The State must decide well before that date whether it is to proceed with the charge depending on availability of witnesses.
    

Paul K. Madigan
JUDGE

At Labasa
26th July, 2012