State v Lal [2015] FJHC 406; HAR001.2015 (2 June 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

High Court Review Case HAR 001 of 2015

BETWEEN:

STATE
Complainant

AND:

MANI LAL
JOHNNY HARISH LAL
SHANIL KUMAR &
41 OTHERS
Respondents

Counsel: Ms. S. Kant for State
3 Accused in Person

Dates of hearing: 1st April and 1st May 2015
Date of Judgment: 2nd June, 2015

JUDGMENT
[Constitutional Redress]

1. All of the charges against these 44 respondents were called in the Magistrates' Court at Nasinu on divers dates in 2014 before one particular Magistrate. The charges were for traffic offences (32 cases), domestic violence (5 cases) and minor criminal offences (7 cases). All cases were dismissed by the Magistrate for the reason that, the prosecution not being ready, s.14(2)(g) of the Constitution had been breached, to the detriment of the rights of an accused person.
   
2. Section 14(g) of the Constitution (2013) reads:
   

"s.14(2) Every person charged with an offence has the right -

............

(g) to have the trial begin and conclude without unreasonable delay."

3. In some cases, the police prosecutor had appeared without the file and was asking for a short adjournment, in some cases the accused had absconded and was on bench warrant, in many cases the prosecution was merely asking for further time to prepare for hearing.

4. This review is conducted pursuant to section 260 of the Criminal Procedure Decree to determine in terms of section 261 the legality or propriety of the dismissal orders made by the Magistrate in all 44 cases. Three "random" respondents were called to the review and unsurprisingly none of them had anything to say. There are however 41 respondents unheard and I am constrained by s.262(2) not to make any order prejudicial to any unheard respondent and I include the 3 sample respondents in that class.

5. The granting of relief to a party on a purported constitutional breach is a serious decision by a court and not one that can be spontaneously "thrown" at a prosecutor without due process, without consideration of alternative remedies and without taking time for considered reflection on the proposed order.

6. The paramount point to make in this review is that, in doing what he did, the Magistrate was acting "ultra vires" he had no jurisdiction to rule on constitutional redress.

7. The Constitution (2013) provides by section 44 of the Bill of Rights as follows:

"44-(1) if a person considers that any of the provisions of this Chapter has been or is likely to be contravened in relation to him or her..., then that person...,may apply to the High Court for redress.

44-(3) The High Court has original jurisdiction –

(a) To hear and determine applications under subsection (1); and
(b) To determine questions that are referred to it under subsection (5) and may make such orders and give such directions as it considers appropriate.

S.44 (4) The High Court may exercise its discretion not to grant relief in relation to an application or referral made under this section if it considers that an adequate alternative remedy is available to the person concerned.

S.44(5) If in any proceedings in a subordinate court any question arises as to the contravention of any of the provisions of this Chapter, the member presiding in the proceedings may, and must if a party to the proceedings so requests, refer the question to the High Court unless, in the member's opinion (which is final and not subject to appeal). The raising of the question is frivolous or vexatious".

8. This "enforcement" section therefore makes several points very clear;

(i) The Magistrates Court has no jurisdiction to make any decision on a perceived breach of the Bill of Rights;

(ii) Only the High Court may adjudicate and rule on a question so arising;

(iii) Even in the High Court relief to an applicant will be denied under the Bill of Rights if an "adequate alternative remedy is available". (s.44(4))

9. The "adequate alternative remedy" proviso is but a codification of the common law as determined by the Privy Council in Chokolingo v. AG of Trinidad and Tobago [1981] 1AllER 244 and very recently by the Privy Council in Tapper v. DPP [2013] 1 Cr.App.R. Part II at p.134.

10. It is unnecessary for this review to enter into a discussion of those 2 leading authorities, save as to say that they decide that where reliance is placed on the breach of a constitutional right precedence must be given to whatever "parallel and collateral remedies" are available to an applicant with respect to the same matter.

Conclusion

11. The Magistrate was in error in dismissing these 44 cases for breach of s.14 of the Constitution. He had no jurisdiction to do so. In any event a breach of the constitution is not (except in extreme circumstances) something to be invoked on the Court's own motion but a remedy to be the subject of an application by a party to the proceedings.

12. Having not been able to hear all of the accused or respondents who have benefitted from these erroneous dismissals, I am not able to act to their prejudice. There has however been no acquittal ordered against them and as a consequence the defence of "autrefois acquit" would not be available to them if they were ever recharged for their respective offences.

P.K. Madigan
Judge

At Suva
2nd June, 2015