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Malani v Director of Public Prosecutions [2022] FJHC 79; HBJ02.2021 (3 March 2022)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION


Civil Action No. HBJ 02 OF 2021


BETWEEN:

VERONICA RALOGAIVALU MALANI

Applicant


AND:

1. DIRECTOR OF PUBLIC PROSECUTIONS

2. ATTORNEY-GENERAL OF FIJI

Respondents


Before:

The Honourable Chief Justice Kamal Kumar


Counsel:

Mr. S. Valenitabua for Applicant/Appellant

Ms M. Faktaufon and Mr. S. Kant for Respondents


Hearing: 25 January 2022

Ruling: 3 March 2022


RULING
(Application for Leave to Appeal Interlocutory Decision)


Introduction


  1. On 30 September 2021, the Applicant filed Summons for Leave to Appeal this Court’s decision delivered on 10 September 2021 (“the Application”).
  2. The Application was called on 12 October 2021, when parties were directed to file Affidavits and the Application was adjourned to 30 November 2021, for mention only.
  3. On 13 October 2021, the Applicant filed Supplementary Affidavit.
  4. On 30 November 2021, the Respondents by their Counsel informed the Court that, Respondents would not file any Affidavit and sought a hearing date.
  5. On 30 November 2021, the Application was adjourned to 25 January 2022, for hearing and Court gave following directions:-
  6. Both parties failed to file Submissions as directed by this Court but did so on the hearing date.
  7. This Court accepted the Submissions and proceeded to hearing.

Application for Leave to Appeal Interlocutory Decision


  1. The case authorities in respect to Appeals against interlocutory orders have been stated in Gosai v. Nadi Town Council [2008] FJCA 1.ABU116.2005 (22 February 2008) as follows:-

“28. APPEAL ON INTERLOCUTORY DECISION


In coming to the decision that the appeal should be refused, the Court has also had reference to the High Court’s decision in Heffernan v. Byrne and Ors HCF Civil Action No. HBM 105 of 2007 (19 February 2008). There, in refusing leave to appeal against an interlocutory decision, His Lordship set out a comprehensive collocation of the authorities, referring to Kelton Investments Limited an Tappoo Limited v. Civil Aviation Authority of Fiji and Motibhai & Company Limited [1995] FJCA 15, ABU 0034d.95s; Edmund March & Ors v. Puran Sundarjee & Ors Civil Appeal ABU 0025 of 2000; and KR Latchan Brothers Limited v. Transport Control Board and Tui Davuilevu Buses Limited Civil Appeal No. 12 of 1994 (Full Court).


29. As His Lordship observed, in Edmund March & Ors this Court said:-


As stated by Sir Moti Tikaram, President Fiji Court of Appeal in Totis Incorporated, Sport (Fiji) Limited & Richard Evanson v. John Leonard Clark & John Lockwood Sellers (Civ. App. No. 33 of 1996 p. 15):


It has long been settled law and practice that interlocutory orders and decisions will seldom be amenable to appeal. Courts have repeatedly emphasized that appeals against interlocutory orders and decisions will only rarely succeed. The Fiji Court of Appeal has consistently observed the above principle by granting leave only in the most exceptional circumstances.


  1. Further, as His Lordship also noted, in KR Latchan Brothers Limited a Full Court of Appeal (Tikaram, Quillam and Savage JJ) said:

... The control of proceedings is always a matter for the trial Judge. We adopt what was said by the House of Lords in Ashmore v. Corp. of Lloyd’s [1992] 2 All ER 486-


Furthermore, the decision or ruling of the trial judge on an interlocutory matter or any other decision made by him in the course of the trial should be upheld by an appellate court unless his decision was plainly wrong since he was in a far better position to determine the most appropriate method of conducting the proceedings.”


  1. The Applicant will need to establish that this Court’s exercise of discretion in refusing Application for Leave to Apply for Judicial Review of Director of Public Prosecution’s decision dated 7 January 2021, was plainly wrong and there are exceptional circumstances.
  2. The proposed grounds of Appeal annexed to the Applicant’s Affidavit sworn on 30 September 2021, stated that this Court erred in law and fact in dismissing and striking out the Applicant’s Application for Leave to Apply for Judicial Review and awarding cost without saying in what respect this Court was plainly wrong or what are the exceptional circumstances.
  3. The Applicant’s proposed grounds of appeal is in very general terms and does not specify in what respect this court was plainly wrong.
  4. The manner in which the proposed grounds of appeal has been drafted is in complete disregard to the long standing principle stated in Reading v Queen (No.1) (1876 – 1897) 1 FLR 235.
  5. The Court in Reading v Queen (No. 1) stated as follows:-

“General grounds of appeal gave no real notice to the respondent. The object of the notice is to give information of what the real grounds of appeal are. In future it must be understood that the grounds of appeal must be fully and clearly stated. The procedure enjoined by the Ordinance has not been observed in this case, and even if I had any discretion under s.12 to make the required amendments now, I should decline to exercise that discretion.”


  1. Issues raised by the Applicant are those that appear at paragraphs 8 and 17 of her Affidavit in Support, which are in following terms:

“8. As I continued reading the Judgment, I understood that the Honourable Chief Justice’s view was that separation of power is crucial in the three arms of government and that the DPP is not subject to the directions or control of any other person or authority and my understanding is that the Honourable Chief Justice found (paragraph 4.8 – 5.11) that I did not provide an arguable ground in my Affidavits.


........


17. I am advised by my lawyers and verily believe the same to be true that the 3 accused in Matalulu’s case were charged by way of private prosecution and produced in Court on 27th October 1997, and on 3rd December 1997, a nolle prosequi was filed in Court by the Acting DPP and in accordance to section 117(8)(a) of the 2013 Constitution of the Republic of Fiji. This was contrary to my case as Mr. Aiyaz Sayed Khaiyum was never charged and never produced in Court and hence the actions of the DPP is an abuse of power and unconstitutional.”


  1. As for the comment in relation to separation of powers, it should be noted and understood that, it was not the rational for the Court’s decision but was a passing comment.
  2. This Court’s findings and reasons are stated at paragraph 6.1 of its Ruling which is re-produced here:

“6.1 After analysing the Affidavit evidence and submissions, this Court makes following findings:-


(i) DPP’s decision to not institute criminal proceedings against the Attorney-General on Applicant’s complaint was not in excess of DPP’s constitutional and statutory authority.

(ii) DPP did not act under the direction or control of any other person or authority.

(iii) DPP did not act in bad faith in holding that there was insufficient credible evidence or reliable evidence to support any criminal charges against the Attorney-General.

(iv) DPP correctly applied the evidential test stated in Prosecution Code (Fiji), Osborne and Marshall.

(v) DPP did not breach rules of natural justice by not contacting or seeking Applicant’s consent or consulting the Applicant, before coming to the decision to not institute criminal proceedings against the Attorney-General.

(vi) There was no need for the DPP to consult the Applicant before coming to the decision to not institute criminal proceedings against the Attorney-General.

(vii) Applicant has failed to produce any evidence to prove that the DPP was biased in coming to the decision to not institute criminal proceedings against the Attorney-General, and claim for bias was based on mere assertions, suspicion and speculation.

(viii) The Applicant’s Application for Leave to Apply for Judicial Review is frivolous, vexatious and an abuse of Court process on the ground that all the allegations are based on mere assertions, suspicion and speculation.”
  1. The Supreme Court of Fiji in Matalulu stated as follows:

“It is not necessary for present purposes to explore exhaustively the circumstances in which the occasions for judicial review of a prosecutorial decision may arise. It is sufficient, in our opinion, in cases involving the exercise of prosecutorial discretion to apply established principles of judicial review. These would have proper regard to the great width of the DPP’s discretion and the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits. This approach subsumes concerns about separation of powers.”


  1. Nowhere in Matalulu case or cases that adopted and applied the Matalulu principle has stated that it applies only where nolle prosequi is filed by the Prosecution.
  2. Putting it in simple terms what the Applicant by her Counsel seems to be saying is that:-
  3. It is very clear from the statement quoted at paragraph 17 of this Ruling that the principle in Matalulu’s case apply to exercise of prosecutorial discretion in all respects and not only to criminal proceedings as submitted by the Applicant’s counsel.
  4. The Applicant by her Counsel kept on submitting that Director of Public Prosecutions directed the Fiji Police Force to not to carry on further investigation.
  5. There was nothing before the Court to prove this point.
  6. Part of the Director of Public Prosecutions with catchwords highlighted is as follows:

“following a review of the police docket, it is our opinion that there is insufficient credible or reliable evidence to support any criminal charges being laid against the Attorney-General and, therefore, the docket has been returned to police with the instruction not to charge and no further action is required.”


  1. This Court stands by its comment that the argument put forward by the Applicant is “absurd and nonsensical.”
  2. In any event, it is basic understanding that, in order for Director of Public Prosecutions to decide whether to institute criminal proceedings, there is a need to carry out investigations, assess the evidence, and consider the test laid down in the guidelines and case authorities. Once the DPP institutes criminal proceedings then the matter is determined by a Court of law unless proceedings is terminated by the DPP.
  3. Any decision taken by the DPP during the period the complaint is lodged and the case is determined by the Court is a prosecutorial decision to which the principle in Matalulu applies.
  4. This Court has no hesitation in holding that this ground is totally absurd and unmeritorious.
  5. As to proposed ground in respect to costs assessed by this Court the Applicant at paragraph 34 of her Submissions submitted as follows:

“This appeal ground is arguable and has high prospects of success considering that the security for costs tariff being set by the Court of Appeal is $3,000.00. Further, the circumstances and the precedent revisited and confirmed by the Courts is for the greater good of Fijians who in the future wish to exercise their constitutional right of access to Court and to keep people of power accountable for their exercise of power over citizens of Fiji.”


  1. During oral submission the Applicant by her Counsel very rightly conceded that:

(i) No tariff is set by the Court of Appeal for assessment of security for cost;

(ii) In this instance no security for cost was assessed;

(iii) What was assessed was cost of the proceedings in favor of the successful party;
(iv) Amount of costs assessed in any matter will depend on the nature of the proceeding.
  1. There is nothing before this Court to establish how this Court went plainly wrong in awarding cost in the sum of $5000.00.

Conclusion


  1. This court finds that the Applicant has failed to identify the grounds of appeal in the Summons or the Proposed Grounds of Appeal annexed to her Affidavit in Support.
  2. Even, if this Court takes the grounds of appeal as those mentioned at paragraph 14 of this Ruling and that submitted by the Applicant’s Counsel the Applicant has failed to establish that this Court was plainly wrong when it refused the Applicant for Leave to Apply for Judicial Review.
  3. The Applicant has failed to show any exceptional circumstances that justify grant of Leave to Appeal.
  4. This Court therefore has no option but to dismiss and strike out the Application.

Costs – The Application


  1. The Respondents by their Counsel appeared in this Court three (3) times including the hearing date and did not file Affidavit in Opposition or Submissions as directed by the Court.
  2. Both parties filed submissions on the day of hearing and made Oral Submissions.

Order


  1. This Court makes following Orders:-

Hon. Justice Kamal Kumar
Chief Justice


Solicitors:

Messrs. Valenitabua & Associates for Applicant

Office of the Attorney-General for Respondents

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