Fiji Independent Comission Against Corruption v Padarath [2011] FJMC 173; Criminal Case 594.2011 (3 November 2011)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 594/2011

FICAC

V

BENJAMIN WAINIQOLO ADISHWAR PADARATH

For Prosecution: - Mr. Perera V.
For Accused persons: - Mr. Chaudhry R.

RULING

1. The learned counsel of the defence raised a preliminary objection that the Prosecutors of the Fiji Independent Commission against Corruption (Hereinafter referred to as FICAC) do not have the authority to conduct prosecution and the FICAC has no legal authority to bring charges against the accused person.
   
2. Having considered the preliminary objection raised by the learned counsel of the defence, I invited both counsel of the prosecution and the defence to make their further submission in writing. Accordingly, both parties filed their respective written submissions. Subsequent to that the both counsel made their oral submission to further elaborate their arguments.
   
3. Upon carefully consideration of the written submissions filed by the prosecution and the defence and their respective oral submissions, I now proceed to pronounce my ruling on this preliminary objection.
   
4. Having carefully considered the submissions of the prosecution and the Defence and the scope of this preliminary objection, I am of the view that the issues of whether the FICAC is a public prosecutorial agency and the duties and the role of Public prosecutors should be an academic discussion in socio-legal forum than before the Judicial –legal forum. Wherefore, I only focus in this ruling to determine the main issue of this preliminary objection that is whether the FICAC has legal authority to bring charges against the accused person and had authority to conduct prosecution.
   
5. The main crux of the objection of the learned counsel of the defense is that whether the prosecutors of the FICAC have the authority to conduct prosecution under the Criminal Procedure Code (hereinafter referred to as CPD). I do not intend to reproduce or summarize the submissions of the learned counsel, but I reiterated that I have given a fully and through consideration on the submissions tendered by the learned counsel of the prosecution and the defence.
   
6. The Interpretation section of the Criminal Procedure Decree has defined the "public prosecutors" as any person appointed by the Director of Public Prosecution or the Commissioner of the FICAC to be a prosecutor or to prosecute any particular case". In view of this interpretation, I find that the appointment of a Public Prosecutor could be done for two purposes ways, which is appointing as a prosecutor or to appoint to prosecute any particular case by the Director of Public Prosecution or the Commissioner of the FICAC
   
7. The interpretation of the section 3 (2) ( c ) of CPD must be done with conjunction to the section 48 of the CPD and Section 12, 12 B, and section 8 of the Fiji Independent Commission Against Corruption ( Promulgation No 11 of 2007) ( Hereinafter referred to as FICAC Promulgation). The section 3 (2) ( c ) of the CPD reads as " the provisions of this Decree shall be subordinate to and shall be read and applied subject to any provisions of another Act making specific provision in relation to –
   

The appointment, powers, and duties of the prosecutors, and the administration of the Office of the Director of Public Prosecution, or of the Commissioner of the Fiji Independent Commission Against Corruptions".

8. Part VI of the CPD deals with the powers of the Director of Public Prosecutions, Commissioner of the FICAC, Sate Counsel and Public Prosecutors. Section 48 specifically stated that the part VI is subject to any law dealing with the office of the Director of Public Prosecutions and the Commissioner of the FICAC. The section 48 reads as ""The provisions of this Part are subject to any law dealing specifically with the powers of the Director of Public Prosecutions and the administration of the Office of the Director of Public Prosecutions or a National Prosecutions Service and to any law dealing specifically with the powers of the Fiji Independent Commission against Corruption".
9. In view of the section 48 of the CPD, the part VI of the CPD should be interpreted subject to any ealing specifically with thth the powers of the FICAC. The laws dealing with the powers of the FICAC mainly found in the FICAC promulgation, which includes the powers and the duties of the Commission of the FICAC.
   
10. I now turn to examine the powers of the FICAC to prosecute on its own name. Section 12B of the FICAC promulgation has stipulated the powers of the Commissioner to prosecute in his own name which includes the power to institute and conduct proceedings. The Section reads as
    
    1. The Commissioner may in his own name and in any court institute and conduct proceedings in relation to any offence to which this Promulgation applies.
       
    2. The power conferred by subsection (1) includes the power to institute and conduct proceedings in relation to offence that were committed before the commencement of this Promulgation.
       
    3. The bringing of s prosecution for an offence in the exercise of the power conferred under this section does not, notwithstanding any provision of the Penal Code or any other law to the contrary, require the consent of the Director of Public Prosecutions.
       
    4. In any court proceedings to which the Commissioner is a party the Commissioner is not required, unless otherwise directed by the Court, to appear in person but may appear by his representative"
       
11. Section 12 of the FICAC Promulgation preciously stated that the Commissioner of the FICAC shall perform his duties through the Deputy Commissioner and/ or through his officers, which includes the duties of the commissioners to prosecute in his own names pursuant to section 12 B of the promulgation.
    
12. Section 8 of the FICAC Promulgation empowered the Commissioner of the FICAC to appoint officers to assist the Commissioner in the performance of his functions under the promulgations, which indeed includes the performance of the powers of the Commissioner to prosecute in his own name pursuant to section 12 B of the FICAC Promulgation.
    
13. Having examined the powers of the FICAC and the duties of the Commissioner of the FICAC under the FICAC Promulgation, I am inclined to hold that the powers of the Commissioner to prosecute in his own name pursuant to section 12B of the Promulgation, and to perform such duties through his officers appointed under section 8 of the Promulgation are not subjected to the provisions of the part VI of the CPD.
    
14. Having considered the powers and the duties of the Commissioner of FICAC, I now draw my attention to examine who can institute the proceedings and prosecute before the Magistrate court.
    
15. Part VII, division 1 of the CPD deals with the institution of proceedings, where section 56 (2) of CPD allows any person who believes from a reasonable and probable cause that an offence has been committed by any person to file a complaint with a Magistrates court. Further section 56 (5) states that " where proceedings are instituted by a police officer or other officer acting in the course of a lawful duty, a formal charge duly signed by the Police officer or other officer may be presented to the Magistrate court and shall for the purpose of this decree, be deemed to be a complaint". In line with the provisions in the FICAC Promulgation, I am of the view that the Commissioner of the FICAC or an officer of the FICAC who is assisting to the Commissioner in performance of his duties is also comes within the preview of "any person" and "other officer acting in the course of a lawful duty". Hence I am inclined to hold that the Commissioner or an officer who is assisting to the Commissioner in performance of his duties is allowed to institute proceedings in the Magistrates court pursuant to Part VII of the CPD.
    
16. I now turn to the issue of who can conduct the prosecution before the Magistrates court. In this aspect, section 55 of the CPD deals with the conduct of prosecution, where it stipulates, that "
    
    1. Any person lawfully conducting a criminal prosecution may do so personally or by a lawyer.
       
    2. The Commissioner of Deputy Commissioner of Fiji Independent Commission Against Corruption mayritten notice authorize any lawyer to conduct a Fiji Independependent Commission Against Corruption prosecution in any court in Fiji. Every such lawyer shall be subject to the direction of the Commissioner of the Fiji Independent Commission Against Corruption.
       
    3. The Director of Public Prosecution and the Commissioner of Fiji Independent Commission Against Corruption may at any time transfer to each other the conduct of any prosecution at any time before the close of the prosecution case. In such a case the public prosecutor or Fiji Independent Commission Against Corruption prosecutor as the case may be, is deemed to have been appointed by the Director of Public Prosecution or Commissioner of Fiji Independent Commission Against Corruption to prosecute.
       
17. Section 55 (1) precisely allowed any person who is lawfullyucting a criminal prosecution may do so either personally olly or by a lawyer. Accordingly, I find the Commissioner of the FICAC or an officer who is assisting to the Commissioner in performance of his duties is allowed to conduct a criminal prosecution pursuant to section 55 (1) of the CPD which should read together with the section 48 of the CPD and section 12 and 12B of the FICAC Promulgation.
    
18. Moreover, section 55 (2) allowed the Commissioner of the FICAC to authorize any lawyer to conduct a Fiji Independent Commission Against Corruption's prosecution in any Court in Fiji.
    
19. Having considered the reasons set put in above paragraphs, I am of the view that the Commissioner of the FICAC is allowed to institute proceeding and prosecute in his own name.
    
20. The powers of the Director of Public Prosecution to appoint public prosecutors and police prosecutors pursuant to section 55 of the CPD does not affect the powers of the FICAC to institute proceedings and to conduct prosecution.
    
21. I now turn back to the interpretation of the "public Prosecutors" in section 2 of the CPD. It is indeed, the person appointed as prosecutors or to prosecute any particular case by the Director of Public Prosecution or the Commissioner of the FICAC are defined as public prosecutors. But it does not affect the powers of the Commissioner of the FICAC to institute proceedings and to conduct prosecution in line with section 3 (2) (b), (c), Section 48, Section 55 (1) (2) of the CPD and Section 8, 12, 12B of the FICAC Promulgation.
    
22. In conclusion, I hold that the FICAC has legal authority to bring charges against the accused person and has authority to conduct prosecution. Accordingly I dismiss the preliminary objection raised by the learned counsel of the Defence.
    

On this 30th day of November 2011.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.