State v Naitini [2001] FJLawRp 1; [2001] 2 FLR 23 (4 January 2001)

STATE v ILIKIMI NAITINI a.k.a. GEORGE SPEIGHT & 10 ORS (No. 2)

High Court Criminal Appellate Jurisdiction
4 January, 2001 HAA 93/00S

Stay of preliminary hearing – State's application to seek stay of Magistrate proceeding with scheduled preliminary hearing and to disqualify himself – whether Court can order stay and disqualification on allegations from the bar table of presiding magistrate's purported bias by conduct – 1997 Constitution s120(1), (6); 1990 Constitution s 114 - Penal Code s50; Criminal Procedure Code ss 69, 70, 323, 308; Immunity Decree 2000

The State sought a stay of preliminary hearing proceedings and disqualification and name suppression orders that 1) the Chief Magistrate be barred from further dealing with the case of Ilikimi Naitini a.k.a George Speight and Others, under Criminal Case No. 2529/2000, pending further order by the High Court; 2) &#he decision of the Chief hief Magistrate to hold a preliminary hearing on the day after this appeal was heard in a case of treasarges be vacated until the appeal was filed and heard by the High Court, or until an appealppeal already filed by the Accused in the case of the validity of the Immunity Decree 2000, was heard by the Court of Appeal; 3) the decision of the Chief Magistrate ordering the prosecution to disclose the names and addresses of 114 prosecution witnesses, be set aside pending further order by the High Court. The State's Notice of Motion was intituled "In the Matter of an Appeal by the State pursuant to section 308 of the Criminal Procedure Code" and State counsel deposed to an intention to exercise its right of appeal under section 308 CPC and was preparing appeal papers. It sought to disqualify the chief magistrate because of his unusual procedure of allowing the Accused an adjournment before cross-examining the prosecution witnesses, his comments that the prosecution was delaying the course of justice, and habitually shaking hands with the Accused after session on Nukulau Island. The appellate Judge found that this was not a stay pending appeal, and could not consider the application. The papers were misleading where no notice of appeal, and no grounds of appeal were filed. The Judge accepted defendant counsel submissions that where no application was made under sections 69 and 70 CPC, the logical course for the State to follow is to make an application to the presiding Magistrate himself, and if refused, to apply for stay pending appeal in the High Court with a copy of the grounds of appeal attached. The Court was critical of the failure of the State to invoke the inherent jurisdiction of the Court when it could have adhered to prescribed procedures under the Criminal Procedure Code.

Held–(1) On an application invoking the inherent jurisdiction of the court under s.120(6) Constitution, but not an appeal or stay application, the High Court may use its original inherent powers under s.323 CPC sparingly and in exceptional circumstances to prevent an abuse of its own processes, to regulate proceedings validly brought before it, to stay proceedings in the subordinate courts to protect proceedings brought in the High Court and to ensure that justice is properly administered. Any exercise of that power affecting proceedings in the lower courts, should be, and must be limited to the legality and the propriety of decisions made in the subordinate courts.

(2) Submissions of inappropriate behaviour of magistrate must be supported by affidavit evidence, not submissions from the bar table. Submissions from the bar table are unacceptable and amounted to an abuse of the criminal process.

(3) There is no reason to invoke the inherent jurisdiction of the HC when the CPC provides a remedy.

Stay of committal proceedings is misconceived and refused as an abuse of the process of Court.

[Note: Act 13/03 has amended the Criminal Procedure Code to remove the requirement of preliminary inquiries or committal proceedings in the Magistrates' Court and replace it with new procedures of transferring charges to the High Court wef 13 October 2003]

Cases referred to in Ruling
Ah Yick Lemmer [1905] HCA 22; (1905) 2 CLR 593
Amina Koya v State [1998] CAV0002/97
Attorney-General of Trinidad and Tobago v Philip (1995) 1 AC 396
Connelly v DPP (1964) AC 1254
DPP v Humphrys (1977) AC 1
DPP v Hussain (The Times) 1 June 1994

Grahame Bruce Southwick v State [1996] AAU0020/96 14 February 1996
Hui Chi-Ming v R (1992)
Jago v District Court of NSW (1989) 168 Aust. Law Rev. 23
Pinson v Pinson (1991) 5 P.R. NZ 177
R v Croydon JJ ex p Dean 98 Cr.App.R. 540
R v Heston-Francois (1984) Cr.App.R. 209
R v Horseferry Road Magistrates' Court ex p Bennet [1993] UKHL 10; (1994) 1 AC 42

R v Riebald (1967) 1 WLR 674

Ramesh Patel v State [1997] AAU0001/97 18 July 1997

Rt Ovini Bokini v State (1999) 45 FLR 273

State v Waisale Rokotuiwai (1998) 44 FLR 28

Robert Schuster for the Appellant
Apisalome Matebalavu with Sevuloni Valenitabua for the Respondents

4 January, 2001 RULING

Shameem, J
The ten Defendants are jointly charged with Treason, contrary to section 50 of the Penal Code, Cap. 17. The case has been listed before the learned Chief Magistrate. All Defendants have pleaded not guilty to the charge and have been remanded at Nukulau Island, pending the hearing of the case. The preliminary inquiry is still pending.

By the 14th oember 2000 2000, the prosecution had disclosed 114 witness statements to the defence, but had deleted the names and addresses of those witnesses. Counsel for thendants applied for disclosure of names and addresses. On 1 On 14th December, the learned Chief Magistrate ordered that the names and signatures of the witnesses should not be deleted from their statements to the police, and that the Defendants and/or their agents be prohibited from approaching the prosecution witnesses without the consent of the DPP's Office.

The matter was called at Nukulau Island on the 20th of December 2000. Mr Vilimone Vosarogo appeared for the State, and informed the learned Chief Magistrate that the State would appeal the ruling within 28 days. He asked the learned Chief Magistrate to adjourn the case pending the result of the appeal. The learned Chief Magistrate refused to do so, and set hearing dates for the oral preliminary inquiry, commencing on the 3rd of January 2001. It appears that four other treason cases are also listed for the same day, for preliminary inquiry.

The State then filed this application. The Notice of Motion dated the 28th of December 2000, is entitled "In the Matter of an Appeal by the State pursuant to section 308 of the Criminal Procedure Code", and seeks the following orders:

"1. That the Learned Chief Magistrate be barred from further dealing with the case of Ilikimi Naitini a.k.a George Speight and Others, under Criminal Case No. 2529/2000, pending further order by the High Court of Fiji.

2. That the decision of the Learned Chief Magistrate of the 20th December 2000 to hold a preliminary hearing on Wednesday 3rd January 2001 in a case of treason in criminal Case No. 2529/2000 be set aside, pending further order by the High Court of Fiji.

3. That the decision of the Learned Chief Magistrate made on the 14th December 2000 ordering the prosecution to disclose the names and addresses of 114 prosecution witnesses, in a case of treason in criminal Case No. 2529/2000 be set aside pending further order by the High Court of Fiji."

The affidavit of Vilimone Vosarogo was filed in support of the Motion. That affidavit states that the State wished to exercise its right of appeal under section 308 of the Criminal Procedure Code, that the State was preparing appeal papers, that the State "was entitled as a matter of law to enjoy the period given for appeal", that on application for adjournment pending appeal, the Learned Chief Magistrate said "you people are unnecessarily delaying the work of the court and are standing in the way of justice" and that the Chief Magistrate said that he would adjourn the hearing after the evidence-in-chief of each witness to allow the Defence to prepare its cross-examination.

At the hearing of this application on 2nd January (the day before the Preliminary Inquiry was due to commence), State Counsel said that the application was not for stay of proceedings pending appeal. He said that it was an application for the exercise of the inherent jurisdiction of the court under section 120(6) of the Constitution, for the date set for oral preliminary inquiry on the 3rd of January 2001, to be vacated until the appeal was filed and heard by the High Court, or until an appeal already filed by the Defence in the case of the validity of the Immunity Decree 2000, was heard by the Court of Appeal. He relied on evidence of the conduct of the Learned Chief Magistrate in the conduct of the proceedings, the unusual procedure of allowing the Defence an adjournment before cross-examining the prosecution witnesses, and his comments that the prosecution was delaying the course of justice. He also submitted that the Chief Magistrate habitually shook hands with the Defendants after each hearing, but I declined to accept such a submission given from the bar table. The application was made on the basis that the conduct of the Chief Magistrate amounted to an abuse of the criminal process.

Counse the Defendants onts objected to the application. Although he was asked to consider whether he wished to consult with his clients, he preferred to proceed on this of the papers filed by the State. In his submissions, cos, counsel said that this application was misconceived because it was not brought under the appellate jurisdiction of the court. He said that if the application was for the Learned Chief Magistrate to disqualify himself, it should have been made to the Chief Magistrate at the outset. He submitted that an application for suppression of the names of witnesses should also be made properly, either by way of appeal or by way of motion and affidavit. He asked that the application be dismissed.

The Application
This is not an application for stay pending appeal. The reference to "appeal" in the papers filed by the State is misleading because there is no appeal. No notice of appeal, and no grounds of appeal have been filed. A stay application pending appeal is normally only considered after the petition of appeal is filed.

This is not an application for name suppression, although the third order sought would appear to envisage such an application. In his submission however, State Counsel only referred to the name suppression application, as one which would be heard after the appeal was filed, and as a ground for showing bias on the part of the Chief Magistrate.

The application is in reality an application to order the postponement of the preliminary inquiry on the ground that an appeal would be filed, on the ground that the State was not ready to proceed and on the ground that the Chief Magistrate is biased in the way the case is being conducted.

There is no statutory provision for this procedure. The State is not inviting the court to exercise either its appellate or its revisionary jurisdiction. The application purports to be made under the court's inherent jurisdiction under section 120 of the 1997 Constitution.

The Court's Inherent Jurisdiction
The High Court of Fiji undoubtedly exercises original jurisdiction. Section 120(1) of the Constitution provides that:

"The High Court has unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other original jurisdiction as is conferred on it under this Constitution."

Section 120(6) provides:

"The High Court has jurisdiction to supervise any civil or criminal proceedings before a subordinate court and may, on an application duly made to it, make such orders, issue such writs and give such directions as it considers appropriate to ensure that justice is duly administered by the subordinate court."

How is this jurisdiction exercised? Section 120(6) provides that an application must have been "duly made" before the High Court. It has been held, most notably by the House of Lords in Connelly v DPP (1964) AC 1254 at pp.1354-1355, that the court has a general and inherent power to protect its process from abuse. This includes a power to stay prosecutions. In DPP v Humphrys (1977) AC 1, Lord Salmon said, obiter, at page 46C:

"I respectfully agree...that a judge has not and should not have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is in my view, of great constitutional importance and should be jealously preserved."

Lord Emond Davis said in the same case, at page 55E that:

"While judges should pause long before staying proceedings which on their face are perfectly regular, it would indeed be bad for justice, if in such fortunately rare cases as R v Riebald (1967) 1 WLR 674 their hands were tied and they were obliged to allow the further trial to proceed. In my judgment, Connelly established that they are vested with the power to do what the justice of the case clearly demands...."

The principles guiding the exercise of the power to stay proceedings for abuse of process, have largely been developed to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so (Attorney-General of Trinidad and Tobago v Philip (1995) 1 AC 396.

In Hui Chi-Ming v R (1992) the Privy Council held that an abuse of the process was something so unfair and wrong that the prosecution should not be allowed to proceed. In Jago v District Court of NSW (1989) CLR, the High Court of Australia held that the court had power to stay proceedings on the ground of prosecutorial delay.

In R v Horseferry Road Magistrates' Court ex p Bennet [1993] UKHL 10; (1994) 1 AC 42, the House of Lords said that the doctrine of abuse of the process could be applied to ensure that the rule of law was maintained, where there had been misuse of the process of court, where there was great delay in the conduct of the prosecution and where the prosecution has acted in bad faith (R v Croydon JJ ex p Dean 98 Cr. App. R. 540).

The power of the court to stay proceedings in its inherent jurisdiction was considered by Pain J in State v Waisale Rokotuiwai Criminal Case No. HAC 0009 of 1995. He found that the High Court could invoke its inherent jurisdiction to ensure that the court's processes were used fairly by both sides, but that stay should only be employed in exceptional circumstances.

In State v Ratu Ovini Bokini Criminal Appeal No. HAM0032 of 1998, Byrne J invoked his inherent jurisdiction to stay committal proceedings in the Magistrates' Court after an appeal against a ruling refusing disqualification on the ground of bias had been filed in the High Court.

This decision was upheld on appeal.

On appeal, (Ratu Ovini Bokini v The State Criminal App No. AAU001 of 1999S) the Court of Appeal said that where an appeal has been validly brought, the High Court has power to order a stay pending appeal. At page 394, the Court said:

"The High Court has inherent power to control its own process and to ensure that holding measures are taken pending the hearing of the appeal to enable the exercise of its appellate jurisdiction to be meaningful. See for example, in the context of a statutory right of appeal Pinson v Pinson (1991) 5 P.R. NZ 177. There Smellie J granted a stay of execution pending the hearing of an appeal from the Family Court to the High Court of New Zealand."

Stay is not the only order which can be made when an appeal has been validly brought before the court. The Fiji Court of Appeal in Ramesh Patel v State Criminal App. No. AAU0001 of 1997 cited the following passage from the judgment of Griffiths CJ in Ah Yick Lemmer [1905] HCA 22; (1905) 2 CLR 593, 601:

"When there is a general appeal from an inferior court to another court, the court of appeal can entertain any matter, however arising, which shows that the decision of the Court is erroneous."

Such a power could be exercised, in the court's revisionary jurisdiction under section 323 of the Criminal Procedure Code.

An application for stay to prevent an abuse of the process may be made, therefore, by either the prosecution or the defence. However the principles have largely been developed to prevent unfairness manipulation and misuse of the court procedures by the prosecution. The power must be exercised sparingly. In DPP v Hussain (The Times) June 1 1994, the Divisional Court said that the order is an exceptional one, and should never be made where there were other ways of achieving a fair hearing of the case or where there was no evidence of prejudice to the Defendant.

In R v Heston-Francois (1984) Cr. App. R. 209 the English Court of Appeal said, at page 218:

"As we have said, the court's inherent jurisdiction to stay proceedings is not in doubt. There is high authority for its existence .... There is equally no doubt, in our opinion, that this jurisdiction, the whole scope of which does not arise for examination by us, does not include an obligation to hold a pre-trial inquiry, designed to bring about a stay of proceedings into such allegations as the improper obtaining of evidence, tampering with evidence and seizure of a defendant's documents prepared for his defence. However reprehensible conduct of this kind may be, it is not at least in circumstances such as the present, an abuse, or, in another word, a misuse of the court's process. It is conduct which, in these circumstances, falls to be dealt with in the trial itself by judicial control upon admissibility of evidence...."

Finally the scope of the inherent jurisdiction under section 114 of the 1990 Constitution (now section 120(6) of the 1997 Constitution) was discussed by the Fiji Court of Appeal in Southwick v The State Crim. App. AAU0020 of 1996. In that case Townsley J purported to use the court's inherent jurisdiction to vary bail conditions granted by the Magistrates' Court. The Court of Appeal said:

"No doubt that section confers an original jurisdiction on the High Court; but it is not an appellate jurisdiction which enables the High Court to consider the merits of a decision of a Magistrates' court. In our view the jurisdiction is limited to consideration of the legality and propriety of such a decision. In particular it confers the jurisdiction exercised by the High Court in judicial review proceedings in respect of the Magistrates' Courts."

In summary therefore, the High Court may use its original inherent powers to prevent an abuse of its own processes, to regulate proceedings validly brought before it, to stay proceedings in the subordinate courts to protect proceedings brought in the High Court and to ensure that justice is properly administered. However any exercise of that power affecting proceedings in the lower courts, should be sparing and exceptional, and must be limited to the legality and the propriety of decisions made in the subordinate courts.

The Evidence
The basis for this application is set out in the affidavit of Vilimone Vosarogo. Although the application does not specify that it purports to invoke the court's inherent powers to prevent an abuse of the processes of justice, I have treated it as such. State Counsel's submissions were certainly made on that basis.

The first complaint is that the Learned Chief Magistrate ordered the disclosure of names and addresses of all prosecution witnesses, to the Defence. This, he says was contrary to the public interest, and the State intends to appeal that decision.

The second complaint is that the Learned Chief Magistrate refused to adjourn the hearing of the committal proceedings pending the result of the appeal.

The third complaint is in respect of two comments made by the Learned Chief Magistrate, that the prosecution was being obstructive and was trying to "play a hard game."

The fourth complaint is that the Learned Chief Magistrate decided to adopt a procedure which allowed the Defence to adjourn before cross-examining the witnesses.

The fifth complaint is that the Learned Chief Magistrate refused to stand the case down to allow State Counsel to take instructions from the Acting Director of Public Prosecutions, although Defence Counsel had been given time to speak to their clients.

The sixth complaint is that the court set a date for hearing for the 3rd of January when he knew that there was an appeal pending in the Fiji Court of Appeal on the validity of the Immunity Decree 2000.

These circumstances the State says, constitute evidence that there has been an abuse of the process justifying a temporary stay of the committal proceedings until the appeal in the Court of Appeal is heard, or until the appeal in the High Court (still to be filed) is heard.

Stay
It seems to me that this application, made in the inherent jurisdiction of this court, should have been made using other procedures.

An application for the disqualification of the Chief Magistrate from hearing the case must be made, under sections 69 and 70 of the Criminal Procedure Code, to the presiding Magistrate himself. Counsel for the State could not explain why that was not done. However, that procedure was followed in State v Ratu Ovini Bokini (supra). When the application was refused, the State appealed against the decision on the following day and simultaneously applied for stay pending appeal. The stay was granted in the High Court.

There appears to be no real reason why the State did not follow that procedure in this case. The State has a right of appeal from interlocutory orders, since the passing of the Criminal Procedure Amendment Act on the 17th of September 1998. The time for appealing is 28 days. However, if the application for stay pending appeal has been refused in the Magistrates' Court, the logical course for the State to follow, is to make an application for stay pending appeal in the High Court with a copy of the grounds of appeal attached. However the State chose instead to apply for stay on the ground of abuse of the process. With respect, one need not crack a nut with a sledge-hammer.

Dealing therefore with the State's complaints in turn, the appellate jurisdiction of the High Court, is clearly the appropriate one for complaints, one and two. The appropriate procedure of complaints three (the conduct of the Chief Magistrate), four, five and six is section 69 of the Criminal Procedure Code.

The law on bias is clear. The test is whether there is danger that the hearing is affected by bias, or that a fair-minded observer, knowing the facts, would apprehend or suspect that the trial was affected by bias (Amina Koya v State CAV0002/97). Counsel for the State said that the Learned Chief Magistrate habitually shook hands with the accused persons on his visits to Nukulau. That sort of submission must be supported by affidavit evidence, and if accepted, might be a ground for suspecting bias, or creating a perception of bias. However such an application must be properly made on the basis of affidavit evidence, and on the basis of the court record, and must be made to the Chief Magistrate himself. If the State or the Defence is dissatisfied with his decision, an appeal can be lodged in the High Court. There is no reason to invoke the inherent jurisdiction of the High Court when the Criminal Procedure Code provides a remedy for this sort of application.

Similarly the remedy for complaints four, five and six rests in the appellate jurisdiction of the High Court. The procedures for committal proceedings can be examined by the High Court in the appeal against the ruling for disclosure of names and addresses of witnesses. The refusal to stay the proceedings pending appeal, can be revisited by the High Court in its inherent jurisdiction.

There is no reason to invoke the inherent jurisdiction of this court, when statute provides remedies for all the complaints made by affidavit. Indeed, in considering the nature of the complaints, it is difficult to see how the court, in its inherent jurisdiction, could avoid considering the merits of the Chief Magistrate's decision on disclosure, and on adjournment, and could therefore avoid acting outside of its jurisdiction.

Conclusion
The papers filed by the State, and the submissions made to me, fail to persuade me to take the exceptional step of staying the committal proceedings in this case, on the ground that there has been an abuse of the process by the Chief Magistrate.

The State has other statutory remedies which it has failed to use. The State can simply appeal those decisions of the Chief Magistrate it disagrees with, and can apply for stay pending appeal, in the High Court if the Chief Magistrate refuses to adjourn the proceedings. The assertion by the State that the 28 day appeal period should be treated as an automatic stay is misconceived. It is important, in applying for stay, that any Appellant act with due dispatch to file both appeal and stay application. Merely informing the court that there will be an appeal cannot and should not lead to an automatic stay, particularly in the case of an interlocutory appeal. An appeal must be filed immediately and a stay applied for properly.

This application is therefore misconceived. I dismiss it for the reasons I have given.

Application dismissed.

Marie Chan