State v Tulevu [2017] FJHC 122; HAA08.2016 (17 February 2017)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA08 of 2016

[Magistrates’ Court Case No.31 of 2012)

BETWEEN : THE STATE

Appellant

AND : ILIMO TULEVU

Respondent

Coram : Hon. Mr Justice Daniel Goundar

Counsel : Mr L Fotofili for the Appellant
Mr P Lomaloma for the Respondent

Date of Hearing : 10 February 2017

Date of Judgment : 17 February 2017

JUDGMENT

[1] This is an appeal by the State against an order imposing a fine on a prosecution witness for failing to appear in the scheduled trial of the respondent in the Magistrates’ Court at Savusavu. The respondent was charged with an offence of damaging property contrary to section 369 of the Crimes Decree 2009. The charge alleged that the respondent wilfully and unlawfully damaged coconut trees, the property of One Hundred Sands Limited. Apparently, the respondent and the complainant, One Hundred Sands Limited are involved in a civil dispute concerning the land that had the coconut trees that were allegedly damaged by the respondent (HBC No.17 of 2016).

[2] On 10 February 2012, the respondent was arraigned on the criminal charge. He pleaded not guilty to the charge and was released on bail. Thereafter, the case was adjourned on numerous occasions for different reasons. Eventually, the case was set for trial on 4 July 2016. By this time, the Office of the Director of Public Prosecutions had taken over the prosecution from police. On 4 July 2016, counsel for the State appeared in court and applied for an adjournment on the ground that the complainant was abroad and that the prosecution was not ready. Mr Lomaloma objected to the application saying the defence was ready and if the complainant was unavailable, then the case be dismissed.

[3] The learned Magistrate granted the State’s application and vacated the trial. After vacating the trial, he ordered the complainant to pay a fine of $1000.00 to the accused (the respondent) and adjourned the case for mention on 15 August 2016. The charge is currently pending for determination in the Magistrates’ Court.

[4] The State filed this appeal on 27 July 2016. The appeal is timely. The State’s right of appeal is governed by section 246(1) & (6) of the Criminal Procedure Decree 2009. The grounds of appeal are:

(i) That the Learned Magistrate erred in law and in fact in ordering a fine of $1,000.00 against the complainant who was not a party to the proceedings;
(ii) That the Learned Magistrate erred in law and in fact in ordering a fine when the appropriate Order would have been Costs Order; and
(iii) That in any event, a Costs Order is inappropriate in the circumstances.

[5] All three grounds of appeal can be dealt together. The first issue for determination is whether the Magistrates’ Court has jurisdiction to order a witness to pay a fine to an accused in criminal proceedings? The issue of jurisdiction is a question of law alone.

[6] The power to compel attendances of witnesses is provided by section 110 of the Criminal Procedure Decree 2009. Witnesses who fail to comply with the summons by their non-attendances can be subjected to punitive penalties. They can be arrested and produced in court pursuant to section 112 of the Criminal Procedure Decree 2009. Section 112 requires the court to be satisfied by sworn evidence that the witness will not attend unless compelled to do so before issuing a warrant. Section 113 of the Criminal Procedure Decree 2009 sets out the mode of dealing with a witness arrested under a warrant. Section 115 sets out the penalties for non-attendance of a witness as follows:

(1) Any person summoned to attend as a witness who —

(a) without lawfuuse, failsfails to attend as required by the summons; or

(b) having attended, depaits without having obtained the permission of the court; or

(c) fails to attend afdjourdjournment of the courer being ordered to attend –

shall be liable by order of the court to a fine nine not exceeding 10 penalty units, and toisonment for a term not exceeding 12 months, or both.

[7] The statutory provisions are clear. Penalties can be imposed on witnesses for non-attendances only after they had been accorded due process. Due process requires that the witness must be served with summons to attend court before any penalty can be imposed for non-attendance. Service of summons has two purposes. The first purpose is to give the witness notice to attend court on a specific date and time. The second purpose is that it creates a legal obligation to comply with an order of the court. If there is a breach of that legal obligation, then the court can issue a warrant for the arrest of the witness only after receiving sworn evidence that summons was duly served on the witness but the witness has failed to comply. Finally, due process requires the court to carry out an inquiry whether the witness had a lawful excuse for not attending the court before imposing any penalty such as a fine or an imprisonment.

[8] In the present case, the witness who was the owner of the complainant company was not served with summons by the prosecution. The witness had no notice of the hearing. There was no legal obligation to attend the court. The witness was not at fault for not attending the court. The Magistrates’ Court lacked jurisdiction to impose punitive measures on the witness for non-attendance. For these reasons, the learned Magistrate’s order imposing the complainant to pay a fine of $1000.00 to the accused (the respondent) was made without jurisdiction and was unlawful. The learned Magistrate ordered the witness to pay the fine to the accused. Even the payment of the fine to the accused was unlawful. Fines are paid to the State and not to the accused.

[9] Counsel for the respondent concedes that the learned Magistrate did not have power to order the witness to pay a fine to the accused, but he did have power to award costs against the prosecution payable to the accused under section 150(4) of the Criminal Procedure Decree 2009. Mr Lomaloma submits that power to award costs against the State should now be exercised on appeal. I agree that section 256(2) (e) of the Criminal Procedure Decree 2009 allows this Court on appeal to make any order that may seem just by exercising any power which the Magistrates’ Court might have exercised. The question is whether the order of costs against the State may seem just in the circumstances of this case? Like the accused, the State is entitled to an opportunity to be heard if an order for costs is made against the prosecution. In the present case, the State had not been accorded an opportunity to be heard on costs. For these reasons, an order for costs against the State may not seem just.

Result
[10] Appeal allowed.
Order imposing a fine on the complainant is set aside.

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

Hon. Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for the State
P R Lomaloma Esq for the Respondent