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State v Chand [1994] FJHC 13; HAJ0007j.1993s (28 January 1994)

IN THE HIGH COURT OF FIJI
At Suva
Revisional Jurisdiction

REVISION NO. 7 OF 1993

IN THE MATTER of Section 323
of the Criminal Procedure Code

AND IN THE MATTER of Nausori
Magistrates Court Criminal Case No. 802 of 1987

STATE

V.

VIREND CHAND AND RAVEND PRASAD

Mr. I. Wickramanayake for the Director of Public Prosecutions
Respondents in Person

JUDGMENT

On the 24th of June 1991 the above-named respondents were acquitted after trial in the Nausori Magistrate's Court of an offence of Larceny of Cattle.

The salient chronology of the case was as follows. On the 9th November 1987 the respondents appeared for the first time in the Nausori Magistrate Court and pleaded "not guilty" to the charge. Thereafter the court record reveals that the case was adjourned on no less than 15 occasions before the court finally acquitted the respondents.

Various reasons for the adjournments can be gleaned from court file as follows:

(a) non-appearance of 1 or other of the accused persons (4 times);

(b) court unable to hear the case (7 times); and

(c) inability of the prosecution to proceed (2 times).

It will be seen from the above that the prosecution was responsible for only 2 adjournments of the case throughout its almost 3 1/2 years history in the court from November '87 until June '91.

Be that as it may at the end of the case and after the acquittal of the respondents, defence counsel who had only appeared to take the ruling orally sought an order for costs and was directed to apply in writing by the trial magistrate.

This was subsequently done by letter dated 22nd July 1991 copied to 'Prosecution, Nausori'. In that letter which sought an award of $2,000 costs defence counsel claimed "that there was no reasonable grounds either in law or fact or both for bringing the prosecution before the court ..." and further that "successive adjournments have been in large measure due to the prosecutions inability to marshal its evidence and present its evidence when requested to do so." This latter ground is somewhat exaggerated as the above chronology clearly shows.

By letter dated 27th August 1991 NOT copied to the Prosecution, the Resident Magistrate, Nausori wrote to defence counsel in the following terms:

"This Court is satisfied after considering the surrounding circumstances of this case, that the prosecution had no reasonable grounds for bringing the proceedings against the two accused named above, of the offence of Larceny of Cattle.

The sum of $800, should be paid by the prosecution to the two accuseds as reasonable, to cover all expenses incurred by them in travelling from Sawani to Nausori Court on 15 occasions."

The Office of the Director of Public Prosecutions on learning of the existence of the award of costs in 1992! (i.e. almost a year after the award) now seeks to have the matter revised on the following 3 grounds:

(1) The award was not made in open court;

(2) The award was made in the absence of and without hearing the prosecution; and

(3) The award was not communicated to the prosecution to enable it to appeal the award within time should it have desired to do so.

Section 158(2) of the Criminal Procedure Code (Cap. 21) empowers a magistrate who acquits a person accused of an offence, to order the prosecutor to pay to the accused such reasonable costs as he may see fit:

"Provided that such an order shall not be made unless the ... magistrate consider that the prosecutor either had no reasonable grounds for bringing the proceedings or has unreasonably prolonged the same."

In State v. Filimone Ratulevu Cr. App. 47 of 1991 Jayaratne J. (as he then was) had occasion to consider the ambit of the above subsection. His lordship there said at p.2:

"The section offers no carte blanche. The Judge or Magistrate has to act within the confines of the section ... To order costs under the Section, there has to be an acquittal or discharge. That is not all. The section cannot be so freely used unless the proviso is complied with. it is incumbent on the Judge or Magistrate to consider where there has been reasonable grounds for bringing the proceedings or it has been unreasonably prolonged."

In this case the learned trial magistrate did form the view that there was no "reasonable grounds for bringing the proceedings", but the D.P.P's complaint is not directed at the order itself, rather, objection is taken to the manner and procedure adopted by the trial magistrate in awarding costs.

I do not propose to deal seriatim with each of the grounds raised by the D.P.P. which are all well-taken, rather, I am content to dispose of this revision on the broad principle of 'natural justice' described by Lord Fraser in Forrest v. Brighton Justices (1981) 73 Cr. App. R. 267 when he said at p.271:

"One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication."

In this case the 'procedure' adopted by the trial magistrate was wholly irregular and offended against the above rule in several respects. It cannot be allowed to stand.

Furthermore the 'quantum' or amount of the costs ordered was unsupported by evidence as to any 'loss of wages' or 'travelling expenses' incurred, and, if I may say so, the total sum of $800 awarded as costs is so far outside the normal and reasonable limits for such orders as to enable this court to say that its imposition must involve an error of law of some description even if it may not be apparent at once what is the precise nature of that error [per: Donaldson L.J. in R. v. St. Albans Crown Court ex. p. Cinnamond (1981) 1 Q.B. 480].

For the foregoing reasons and without in anyway deciding the question whether or not the respondents ought to receive an award of costs, the order of the trial magistrate awarding both respondents costs of $800 is hereby quashed.

(D.V. Fatiaki)
JUDGE

At Suva,
28th January, 1994.

HAJ0007J.93S