Narayan v State [1995] FJSC 9; CAV0001.1995 (20 November 1995)

IN THE SUPREME COURT OF FIJI AT SUVA

ON APPEAL FROM THE FIJI COURT OF APPEAL

CRIMINAL APPEAL NO. CAV0001 OF 1995
(Fiji Court of Appeal Criminal No.24/93)

BETWEEN:

BIJENDRA NARAYAN
Appellant

AND:

THE STATE
Respondent

Coram: The Hon. Sir Timoci Tuivaga, President
The Rt. Hon. Sir Robin Cooke
The Hon. Sir Anthony Mason

Hearing: 15 November 1995

Counsel: Mr. S.J. Stanton for the Appellant
Mr. V. Maharaj
Mr. S Chandra

Mr.K.D. Wilkinson for the Respondent

Judgment: 20 November 1995

JUDGMENT OF THE COURT

The principal point sought to be argued in the proposed appeal is that the primary judge failed to conduct an adequate hearing of the application for an order for compensation under S.161 (1) (b) of the Criminal Procedure Code or to afford an adequate opportunity to the Petitioner to deal with the issues that arose in that application. Counsel for the petitioner therefore argues that the case is one giving rise to “substantial and grave injustice” within the meaning of section 13 (2) of the Supreme Court Decree 1991.

As became common ground, the point was not raised in the Court of Appeal. For this reason alone we would be extremely reluctant to grant special leave to appeal. The fact that the ground now said to give rise to substantial and grave injustice was not agitated before the Court of Appeal is a powerful consideration telling against a grant of special leave on that ground. Generally speaking, this Court, as the ultimate Court of Appeal for Fiji is entitled to the benefit of the prior consideration by the Court of Appeal of questions raised for determination in this Court. Furthermore, the efficient administration of justice, as well as the concept of fairness to the parties, requires that as a general rule, questions should not be raised for the first time in this Court when they could have been raised in the proceedings in the court or courts below.

In any event, we do not consider that there is sufficient substance in the point to warrant the grant of special leave. Our reasons for reaching this conclusion are associated, to some extent, with our response to the second point which the petitioner seeks to argue in the proposed appeal. The petitioner seeks to argue in the proposed appeal. The Petitioner’s second point is that the primary judge failed to apply the discretionary considerations which he listed as being relevant to the making or refusal of an order for compensation under S.161 (1) (b), once the jurisdictional elements were established, and that this failure amounts to a question of general legal importance or a substantial question of principle. In particular, the petitioner argues that the primary judge failed to consider whether the petitioner had the means or ability to satisfy the order, this being a factor which the primary judge had acknowledged to be relevant to the exercise of the discretion to make or refuse an order.

The precise course which the proceedings took before the primary judge is not altogether clear. But the Petitioner was represented by counsel and it was open to the petitioner to adduce evidence of lack of means or ability to satisfy an order as well as evidence relevant to other discretionary matters and to cross-examine deponents to affidavits. Yet it would seem that the Petitioner did not adduce such evidence; nor did his counsel exercise a right to cross-examine.

In these circumstances, having regard to the way in which the case was conducted at first and in the court of Appeal, we are not persuaded that there emerges for the consideration of this Court as sufficiently clear-cut question of general legal importance or substantial question of principle to justify the grant of special leave. In the ultimate analysis, the case turns very much on the way in which it was conducted rather than upon the outcome of any clear-cut question of general principle.

The petition for special leave is therefore refused.

SIR TIMOCI TUIVAGA

SIR ROBIN COOKE

SIR ANTHONY MASON

Solicitors:
Koya & Co., Suva, for the Appellant
Office of Director of Public Prosecutions, Suva, for Respondent