Rutten v State [1992] FJLawRp 5; [1992] 38 FLR 162 (6 August 1992)

[1992] 38 FLR 162

HIGH COURT OF FIJI

Criminal Jurisdiction

HELMUT PAUL KASPER RUTTEN

v

THE STATE

Jesuratnam J

6 August 1992

Extradition - whether the High Court has jurisdiction to entertain an application for bail following an order for committal made by the Magistrates Court - whether extradition is a "criminal cause or matter" to which the Criminal Procedure Code (Cap 21) applies - Extradition Act (Cap 23).

A committal order was made in extradition proceedings. The applicant sought bail pending an appeal against the order. The High Court HELD: committal proceedings were not criminal proceedings to which the Criminal Procedure Code applied and the Court had no jurisdiction to grant bail to an applicant in these circumstances.

Cases cited:

Atkinson v USA Government [1971] AC 197
R v Governor of Brixton Prison (1959) Crim. LR 53

Application for bail in the High Court.

M. Raza for the Applicant
Ms. N. Shameem for the Respondent

Jesuratnam J.:

This is an application for bail by the applicant pending the hearing of an appeal which he has filed in this case. Ms. Shameem, deputy Director of Public Prosecutions, has raised a preliminary objection to this application for bail and the appeal pending the hearing of which it has been made on the ground that there is no right of appeal in a matter like this and hence an application for bail pending the hearing of the appeal does not arise.

She argued that the Extradition Act (Cap. 23) under which the extradition order of committal was made contains its own procedure for the obtaining of redress or review from the High Court by any person aggrieved with the extradition order.

Section 308(1) of the Criminal Procedure Code grants a right of appeal "any person who is dissatisfied with any judgment sentence or order of a magistrate's court in any criminal cause or matter which he is a party." It seems to me that this is not a "criminal cause or matter" which are dealt with in the Penal Code and other enactments creating penal offences. This is a matter which may be construed as dealing with the contravention of the applicant's right to personal liberty. Section 10 (1) of the Extradition Act deals with the form and manner in which an applicant can come to this court "for redress of a contravention of his right to personal liberty or for review of the order of committal".

It is also significant that under Section 9(1) of the Extradition Act the order of committal is not made by a magistrate qua magistrate but by a court "presided over by a magistrate (in this Act referred to as the court of committal)". It is for the redress or review of an order of committal made by such a court of committal that provision has been made for an applicant to come to this court by the special procedure prescribed by section 10 of the Extradition Act.

It has been held in England in such cases as Atkinson v. U.S.A. Government (1971) AC 197 and R v. Governor of Brixton Prison (1959) Cr. LR 53 that there is no right of appeal as such from an order of committal made by a magistrate. Our procedure is analogous to that of England in this respect.

I am informed by both counsel in this case that the applicant has already invoked the civil jurisdiction of this court in the exercise of his right under Section 10 of the Extradition Act in Civil Action No. 324/92 and that that action is pending in this court for hearing before my brother, Fatiaki J, on the 14th instant. In fact the court of committal had informed the applicant of his right to such action. The scope of that civil action is wide enough to include all questions of the applicant's personal liberty - permanent or interim.

I may say that any further attempt by the applicant to obtain relief from this court in its criminal jurisdiction is - apart from its irregularity - superfluous and redundant as Section 10 of the Extradition Act is ample enough in its scope and range to cover all aspects of the applicant's grievance.

In my view both the application for bail and the appeal pending the hearing of which it has been made are misconceived. I therefore refuse the application for bail. The appeal will be struck off when it reaches this court in due course.

(Application dismissed.)

(Editor's note: see also 38 FLR 145 and 39 FLR 205)