Kean v Director of Public Prosecution [2018] FJHC 372; HBJ05.2016 (3 May 2018)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBJ 05 of 2016

BETWEEN
GUSTON FREDRICK KEAN
Applicant

AND
DIRECTOR OF PUBLIC PROSECUTION
Respondent

Counsel: Plaintiff in Person

Ms Faktaufon for the Respondent

R U L I N G

1. Before me is an application for leave to issue Judicial Review. The application is filed pursuant to Order 53 Rule 3(2) of High Court Rules 1988. The application was filed on 26 October 2016.
   
2. The Applicant apparently, is aggrieved about a decision of the Director of Public Prosecutions made on 23 February 2012 to issue a nolle prosequi in relation to a criminal charge which the applicant was then facing at the Nadi Magistrate Court for the offence of Robbery with Violence Contrary to Section 293(1) (a) of the old Penal Code. The said charge was filed in February 2006.
   
3. It appears from the Applicant’s affidavit sworn on 12 October 2016 that at some point in 2009, he, being aggrieved and dissatisfied with “the inordinate and unreasonable delay” by the Director of Public Prosecutions, filed an application to stay prosecution to the High Court.
   
4. At the High Court, according to the Applicant, the Director of Public Prosecutions urged the Court to remit the matter for trial at the Magistrates Court because the DPP had always been ready for trial.
   
5. Mr Justice Paul Madigan, who had dealt with the stay application, decided that, to quote the Applicant, the matter be “be remitted to the Magistrates Court at Nadi to set a hearing date for trial at its utmost priority”.
   
6. The Applicant further deposes that, upon the matter being remitted to the Magistrates Court, the Director of Public Prosecution would continue to drag their feet for another three years or so.
   
7. The Applicant then deposes that the Director of Public Prosecutions, being “well aware that their case was weak and without merits justifying a withdrawal under Section (Sic) of the Criminal Procedure Decree”, instead entered a nolle prosequi.
   
8. The Applicant deposes that a nolle prosequi does not bar the Director of Public Prosecutions from re-charging him on the same facts.
   
9. At paragraph 14 of his affidavit the Applicant deposes:
   

“That I was prejudiced. That the entering of the Nolle Prosequi was made to deny a fair trial of the prospect of an acquittal, if a withdrawal was entered instead of a nolle prosequi”

10. From what I gather, the Applicant’s grievance is that, had the matter proceeded to trial, he would surely have obtained an acquittal because the prosecution did not have a good case.
    
11. It is hard for this Court, let alone any Court sitting in a civil jurisdiction, to speculate and/or even make an assessment as to the prospect of an acquittal following a full trial in a criminal matter in any Court.
    
12. Even if the Applicant had gone to some length to try to present and analyse some evidence before me, which he did not, I would still be overstepping the limits of my area of competency to even attempt an assessment as to his prospects of an acquittal.
    
13. As Powell J in Wayte v United States [1985] USSC 60; (1985) 470 US 598 at 607-608 cited in Matalulu (see below) said:
    

‘This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the government's enforcement priorities, and the case's relationship to the government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decision-making to outside inquiry, and may e undermine prosecutorial effectiveness by revealing the government's enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.’

14. In any event, this application is well out of time the three month period prescribed under Order 53 Rule 4.
    
15. There is also an issue raised about whether a decision of the Director of Public Prosecution to issue a nolle prosequi, in any given case, is judicially reviewable.
    
16. At the time the said decision was made, the State Services Decree 2009 was in force. Section (4) (c) of the said Decree states:
    

20.-(4) The Director of Public Prosecutions may:

(c) discontinue, at any stage before judgment is delivered, criminal proceedings instituted or conducted by the Director of Public Prosecutions or another person or authority.

17. Clearly, Section 20(4)(c) confers a discretion on the Director of Public Prosecution to issue a nolle prosequi in any given case.
    
18. In Matalulu v DPP [2003] FJ SC 2; [2003] 4 LRC 72 (17 April 2003), the Fiji Supreme Court, acknowledged at the outset that a prosecutorial discretion such as the entering of a nolle prosequi was traditionally not judicially reviewable because it was a prerogative of the Crown, and also because of the public interest in the separation of powers and the need to separate the judicial process from the executive decision of the DPP over who to prosecute or for what, and also, because of the public interest in the rule of law.
    
19. However, the Supreme Court went on to observe that in Fiji, there was section 194(10) of the then applicable Constitution (Amendment) Act 1997 which provided as follows:

‘A provision of this Constitution to the effect that a person or authority is not subject to the direction or control of any other person or authority in the performance of functions or the exercise of powers is not to be construed as precluding a court of law from exercising jurisdiction in relation to a question whether the first mentioned person or authority has performed the functions or exercised the powers in accordance with this Constitution or whether that person or authority should or should not perform the functions or exercise the powers.’

20. The Court then said that because of section 194(10), such prosecutorial discretion would be reviewable if:
    

The decisions of the DPP challenged in this case were made under powers conferred by the 1990 Constitution. Springing directly from a written constitution they are not to be treated as a modern formulation of ancient prerogative authority. They must be exercised within constitutional limits. It is not necessary for present purpose to explore those limits in full under either the 1990 or 1997 Constitutions. It may be accepted, however, that a purported exercise of power would be reviewable if it were made:

1. In excess of the DPP's constitutional or statutory grants of power- such as an attempt to institute proceedings in a court established by a disciplinary law (see s 96(4)(a)).
2. When, contrary to the provisions of the Constitution, the DPP could be shown to have acted under the direction or control of another person or authority and to have failed to exercise his or her own independent discretion- if the DPP were to act upon a political instruction the decision could be amenable to review.
3. In bad faith, for example, dishonesty. An example would arise if a prosecution were commenced or discontinued in consideration of the payment of a bribe.
4. In abuse of the process of the court in which it was instituted, although the proper forum for review of that action would ordinarily be the court involved.
5. Where the DPP has fettered his or her discretion by a rigid policy- eg one that precludes prosecution of a specific class of offences.
   

There may be other circumstances not precisely covered by the above in which judicial review of a prosecutorial discretion would be available. But contentions that the power has been exercised for improper purposes not amounting to bad faith, by reference to irrelevant considerations or without regard to relevant considerations or otherwise unreasonably, are unlikely to be vindicated because of the width of the considerations to which the DPP may properly have regard in instituting or discontinuing proceedings. Nor is it easy to conceive of situations in which such decisions would be reviewable for want of natural justice.

21. The Attorney General’s Office submits that Matalulu is authority only when a provision such as section 194(10) exists in any given Constitution in force. Matalulu would be applicable today because of section 163(10) of the 2013 Constitution.
    

163 (10) A provision of this Constitution to the effect that a person or authority is not subject to the direction or control of any other person or authority in the performance of functions or the exercise of powers is not to be construed as precluding a court of law from exercising jurisdiction in relation to a question whether the first mentioned person or authority has performed the functions or exercised the powers in accordance with this Constitution or whether that person or authority should or should not perform the functions or exercise the powers.

22. However, the A-G’s Office further submits that, at the time the decision in question was made in February 2012, Fiji had already abrogated the 1997 Constitution - and the 2013 Constitution had yet to come into force. Ms. Faktaufon submits that, as such, Matalulu did not apply, which means that the decision was not judicially reviewable.
    
23. I agree. Because there was no constitution in place at the time of the decision, let alone any provision similar to section 194(10) of the Constitution (Amendment) Act 1997 or section 163 (10) 2013 Constitution, the common law position prevails which would render the DPP’s prosecutorial discretion to issue a nolle prosequi not reviewable by this court.
    
24. I accept Ms. Faktaufon’s submissions. Leave refused. No Order as to costs
    

.................................... Anare Tuilevuka JUDGE 03 May 2018.