R v Naisaramaki [1983] FJSC 4; Review 012 of 1983 (13 October 1983)

IN THE SUPREME COURT OF FIJI
Revisional Jurisdiction

REVIEW NO. 12 OF 1983.

IN THE MATTER of the Criminal Procedure Code

AND IN THE MATTER of Suva Criminal Case No. 524 of 1983

before the Magistrate’s Court at Suva.
Between:

REGINA

COMPLAINANT
And

KAMUELI NAISARAMAKI

RESPONDENT

ORDER ON REVISION

The respondent a Sergeant of Police, was on the 16^th March, 1983, served with a summons to appear as a witness at 8 a.m. on the 17^th day of March, 1983, in Criminal Case No. 524 of 1983 in which case one Toni Majia was charged with the offence of being drunk and disorderly.

At 8.20 a.m. on the 17^th March, 1983, when the case was called, the prosecuting officer advised the Magistrate that the respondent was not present and asked for the case to be stood down. The case was called at 9.05 a.m. The respondent who was present by then, was asked by the Magistrate why he was not present when the case was first called. The respondent apologized to the Court and explained that he had been on night duty and had finished work at 4.15 a.m. He did not wake up until 8 a.m. when he then rushed from Nasese to the Court.

The Record indicates what then transpired:

“Court: I have noted your explanation and apologies. This is not good enough. You were ordered by the Court to be here at 8.00 a.m. The accused was here at 8.00 a.m. I was here at 8.00. You were the only one late. I note that lateness to Court is something not unusual with police officers. I take your attitude as disrespectful of the authority of this Court.

Fined $15 in default 15 days imprisonment. 7 days to pay.”

The respondent appealed against this order and the appeal came on for hearing on the 7^th October, 1983.

The respondent was not present because notice of the hearing date had not been given to him and the appeal had to be adjourned to a date to be fixed.

Mr. Gates, however, who appeared for the Crown, suggested that now the Court was aware of the facts of the case it was one where the revisional powers of the Court under section 325 of the Criminal Procedure Code could be used instead of hearing the appeal.

I accept Mr. Gates’ suggestion and invoke the provisions of section 325 of the Code.

On the 19^th January, 1983, the Chief Justice in Review No. 3 of 1983 in R. v. Detective Constable N. D. 1185 Pravin reviewed a similar case where the same Magistrate fined the Constable for alleged Contempt. The Chief Justice set aside a fine of $10 which the same Magistrate had imposed on D. C. Pravin for appearing improperly dressed in his Court. He apparently was not wearing a tie.

The learned Chief Justice in his Review set out very clearly the Court’s power to sentence a person to suffer a penalty and the procedure which would normally be followed. The Chief Justice also referred to the unusual and clearly arbitrary action taken in Pravin’s case.

The facts of the instant case indicate either that Pravin’s Review was not drawn to the Magistrate’s attention or he has overlooked the Chief Justice’s comments. His actions in the instant case were also arbitrary and unusual.

The Magistrate by his comments apparently treated the respondent’s late arrival as in Contempt of Court.

Although the Magistrate adjourned the case for hearing at 8 a.m. on 17^th March, 1983, it was not called until 8.20 a.m. There is no explanation recorded for the late start.

There was no application to the Magistrate by the prosecuting officer for any warrant to be issued by the Court to compel the attendance of the respondent. It was open to the Magistrate to ask the prosecution to proceed with the case or to dismiss it if the police could not proceed without the respondent as a witness. He acceded to a request that the case be stood down until later in the morning.

The Magistrate was apparently unaware of his powers under section 134(1) of the Criminal Procedure Code which provides that where any person without lawful excuse fails to attend as required by a witness summons he can be fined up to $40.

The Magistrate makes no mention at all of the summons in his record and it would appear he was unaware whether one had been issued (it was not issued by him) or served. There is no record that he made any enquiries. Action under section 134 would only be taken where there was wilful failure to obey a summons and then only in a serious case. Even then it would not normally be the Magistrate who initiated the action but the prosecuting officer.

Lord Denning M. R. in Balogh v. Crown Court /1974/3 All E.R. 283 at p.288 in discussing Contempt of Court said:

“As I have said, a judge should act on his own motion only when it is urgent and imperative to act immediately. In all other cases he should not take it on himself to move. He should leave it to the Attorney- General or the party aggrieved to make a motion in accordance with the rules in R.S.C. Ord. 52. The reason is so that he should not appear to be both prosecutor and judge; for that is a role does not become him well.” (The underlining is mine for emphasis)

Had the Magistrate purported to act under section 134(1) of the Code, this Court could and would have remitted the fine under the provisions of subsection (4) of section 134 because the excuse given by the respondent in my view disclosed no wilful disobedience of any order to attend Court.

The respondent was served with the summons sometime on the 16^th March apparently too late to have his night duty changed. He did not finish work until 4.15 a.m. His explanation for his lateness indicated that there was no intentional disrespect for the Court or wilful disobedience of the summons.

The respondent is a senior non commissioned officer and his explanation should have been accepted by the Magistrate who could have gone as far as pointing out to the respondent that he should have made arrangements to be wakened. That was all that the occasion required.

The remarks made by the Magistrate in the present case and his actions in Pravin’s and the present case indicates that he has a poor view of the police.

If his criticism of the police generally was justified in the instant case, the proper way to bring his complaint to the notice of the Commissioner of Police was to submit a report to the Chief Magistrate who could be expected to take necessary action. The Magistrate should not have taken it on himself to publicly criticize the police. The police have a difficult enough task to perform without having to suffer public criticism.

Such public criticism coming from a Magistrate could lower the police in the estimation of the public and be counter productive. A member of a disciplined force who is not himself an accused should not be publicly humiliated and chastised by a Court unless there is a clear case of Contempt committed in view of the Court which calls for urgent and immediate action. The present case was not such a case.

If the Magistrate was purporting to act under section 136(1) (b) of the Code, where it is an offence for any person who has been summoned to appear to give evidence in a judicial proceeding and who fails to attend, then the respondent should have been charged with that offence.

He did however, attend albeit he was late. Section 136(1) (b) is intended to cover the situation where he does not attend at all.

If being late is considered a failure “to attend” as required by the summons because the summons says he had to attend at 8 a.m. and not later and had the Magistrate invoked that section, he still had to properly consider the respondent’s excuse.

He paid scant heed to the apology and excuse tendered. He did not record that he had checked if and when the summons had been served.

From the Record, it would appear that the order which the Magistrate considered the respondent had disobeyed was the Magistrate’s instructions to the prosecutor on the 14^th March, 1983, when he warned the prosecutor and the accused to have the witness present at 8 a.m. on the adjourned date.

There is no record that the respondent was then in Court and heard that order. If that was the order then the Magistrate was not empowered to arbitrarily fine the respondent for alleged contempt.

The difficulty I face is that I am unable to determine what authority the Magistrate considered he was exercising when he fined the respondent for alleged contempt.

I quash the Magistrate’s order and order that the fine if paid, be refunded to the respondent.

In view of my decision there is no need for the respondent to proceed with his appeal and he will no doubt seek leave to withdraw his petition.

(R. G. KERMODE)

JUDGE

SUVA,
13th OCTOBER, 1983.