Fiji Commerce Commission v Naidu [2013] FJHC 137; HAA030.2012 (26 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA030 of 2012

BETWEEN:

FIJI COMMERCE COMMISSION ("FCC")
Appellant

AND:

MUKESH NAIDU
Respondent

BEFORE : HON. MR. JUSTICE MADIGAN

Counsel : Mr. S. Nandan for Appellant
Mr. D. Toganivalu for the Respondent

Dates of hearing : 3 December 2012, 21 & 25 January, 4 February,
7 & 22 March 2013
Date of judgment : 26 March 2013

JUDGMENT

[1] On the 14th May 2012, the respondent first appeared in the Magistrates' Court at Suva charged with false and misleading representation in relation to land, contrary to section 79(1)(b) and section 129(1A) of the Commerce Commission Decree, 2010.

[2] The matter proceeded through various hearings throughout the year until 3 October 2012. It had been suggested during those hearings prior to 3 October that the matter may be settled, [although it is difficult to understand how an allegation of false representation could be "settled"].

[3] On the 3rd October when the case was called before the learned Magistrate, the Court record shows the following:

"3 October 2012

Prosecution: Ms Velu

Accused: Mr. Toganivalu

Prosecution: I don't have the file with me. But, I agree with what Defence Counsel says.

Defence: I submit the letter of Commerce Commission's letter of withdrawal, Sir.

Court: Accused is discharged.

File is closed.

(signed)

Resident Magistrate."

[4] That exchange and the consequential discharge of the accused is the subject of this appeal by FCC, which body prays that –

1. The learned trial Magistrate erred in law by discharging the accused based on the complainant's withdrawal letter.
   
2. The learned Magistrate erred in not giving the prosecution (FCC) a chance to peruse the withdrawal letter and make any representations thereon.
   
3. That the Magistrate erred in law in not allowing the prosecution's application for adjournment to take instructions on the letter handed up.
   

[5] It is most unfortunate that the learned Magistrate did not keep a better record of proceedings on the 3rd October. Obviously the defence counsel has said something which is not recorded to allow the prosecutor to say "I agree with what Defence Counsel says." The defence then submits a letter which purports to be the FCC's letter of withdrawal, yet there is no reference in the record to that letter being discussed or even asking the prosecutor (who must be in the best position to validate the letter) if the letter be genuine. Nor is there a record of the prosecutor asking for time to get instructions The Magistrate immediately discharges the accused and purports to "close the file."

[6] It is doubtful if the Magistrate has in these circumstances the powers to discharge the accused. The only power to withdraw a complaint in the Magistrates' Court is given by s.169 of the Criminal Procedure Decree 2009. That section reads:

s.169(1) The prosecutor, may with the consent of the Court, withdraw a complaint at any time before a final order is made.

(2) On any withdrawal under sub-section (1) –

(a) [not relevant]

(b) Where the withdrawal is made before the accused person is called upon to make his or her defence, the Court shall subject (sic) make one of the following orders -

• (i) ...............
• (ii) an order discharging the accused; or
• (iii) ...............
  

[7] It would appear, quite understandably, that only the prosecutor can withdraw the complaint by the terms of s.169, but the record in this case appears to suggest that the defence is purporting to have the complaint withdrawn. This being so: without the Court confirming (or noting confirming) the position with the prosecutor, or even giving the prosecutor an opportunity to address the Court on the withdrawal. The Magistrate appears to have fallen into error on two bases, (a) he has acted ultra vires and (b) he has failed to give the FCC a chance to make submissions on the validity of the letter or on the application to have the charge withdrawn.

[8] The position is made far more difficult by the paucity of the note of proceedings. It would have been of great assistance to know what defence counsel said, which the prosecutor said he was agreeing with.

[9] Given the poor record which does not assist this Court in determining exactly what transpired in the Court below on the 3rd October 2012 and given that the Magistrate seems to have exceeded his powers to allow a withdrawal of the charge on application by the accused [if indeed an application was even made] then the appellant's appeal grounds are made out and the appeal is allowed.

[10] In the interests of justice being seen to be done, it must be a golden rule of trial procedure that if an order is about to be made in favour of one party to the proceedings, then it is only fair that the other party be given an opportunity to address the Court on the matter about to be the subject of the order.

[11] The charge has not been validly withdrawn and the accused has been inappropriately discharged: the order of the Magistrate is now rescinded and the case is to be called again in the Magistrates' Court in Suva before a different Magistrate on Monday April 8th at 9.15am.

Paul K. Madigan
JUDGE

At Suva
26 March 2013