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Mutch v The State [2004] FJHC 354; HBC0405.2003 (13 February 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC405.2003

BETWEEN:

MARK LAWRENCE MUTCH
Plaintiff

AND:

THE STATE
COMMISSIONER OF PRISONS
Defendant

Plaintiff - In Person
Ms L. Chandra - for the Defendant

JUDGMENT

Introduction

The plaintiff Mr. Mutch was visited by the Police on the 15th of August, 1997. They executed a search warrant on his premises and took a number of items of personal property. Mr. Mutch was eventually charged with 2 counts of rape and 6 counts of indecent assault. He was sentenced by the High Court to a term of seven years imprisonment. The matter proceeded to appeal. The Court of Appeal set aside one count of rape and ordered a new trial. That trial was subsequently abandoned by the State. The State’s appeal against sentence was allowed and the prison term increased from 7 to 10 years concurrently.

Mr. Mutch is an intelligent and articulate gentleman. He wishes to exercise his full rights to pursue an appeal in the Supreme Court. He feels frustrated that his preparation for appeal is being hampered by what he claims is a lack of disclosure of case materials. In addition he has sought but has not obtained an accounting for the possessions taken from his property by the search warrant.

He genuinely believes that some items are missing. He wants them returned or he wants compensation for their loss. He cannot afford a lawyer. He appears unrepresented.

In pursuit of these grievances he filed an originating summons dated the 30th of September 2003. The summons is filed against the State but part 1 of the list of grievances/pleadings is solely directed against the Director of Public Prosecutions. The relevant portion of the summons reads:

1. An Order that the DPP provide to me copies of all statements of all witnesses and persons interviewed in relation to my case, whether called as a witness or not, how so ever recorded, together with copies of all typewritten transcription English translations, further and amended statements;
   
2. An Order that the DPP provide to me copies of all eight CD’s introduced by Mr. Graeme Robinson Conn in the Magistrate’s Court on or about 06 April 1998;
   

100. An Order that the DPP provide to me a copy of the CD listed as evidence at page 764 of the High Court record;
     

4. This application was withdrawn by leave;
   
5. An Order that the DPP pay compensation to me for all goods and items of mine that are damaged, lost or that have been disposed of, which were originally seized by the police on or about 15 August 1997.
   

The Director was served with proceedings. He subsequently caused a summons (dated 5 January 2004) to be filed seeking to strike out the plaintiff’s proceedings.

It is that application and that application alone that came before me for consideration.

Disclosure or Compensation

The summons can be conveniently broken up into two parts. The first part seeking what is effectively no more or no less than a criminal disclosure of trial documents and the right to examine exhibits. The second part seeking an accounting for and if necessary compensation for unaccounted goods seized under the search warrant.

The importance of this distinction was finally apprehended by Mr. Mutch. During the course of hearing he conceded:

1. that he was likely to vigorously pursue his application for special leave to appeal his criminal conviction and sentence to the Supreme Court
   
2. that he knew exhibits from his trial were now held by the High Court pending the outcome of any applications for leave to appeal to the Supreme Court
   

100. that the issue of non-disclosure of materials could be a useful ground of appeal in any criminal proceedings
     

4. that he could simply write to the Registrar of the High Court seeking copies of the trial record and requesting permission for access to exhibits for non-destructive examination
   
5. that in respect of an accounting for the goods seized and any compensation for lost property his action might first lie against the police.
   

I should also record that during the course of hearing counsel for the applicant defendant made helpful submissions and observed for the Court that:

1. the DPP’s office is an independent authority that serves the State by taking prosecutions on its behalf
   
2. that the Director of Public Prosecutions doesn’t have any of the materials sought by Mr. Mutch
   
3. that the Director of Public Prosecutions doesn’t maintain public court records and in particular the Director does not maintain the integrity of court exhibits.
   

I record that I have read Mr. Mutch’s thoughtful and handwritten submissions. Largely the application proceeded on an agreed facts basis. I am not required to resolve any factual disagreements.

The Law

The Fiji Court of Appeal in its decision of NATIONAL MBF Finance (Fiji) Limited v Nemani Buli (CA No.ABU0057.1998) gives good guidance on the principles for striking out. There Lordships said at page 2:

“the law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such application is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded than the Courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of the factual contention................”

In other words if a claim raises some questions fit to be decided by a Judge then the mere fact that the case is weak or poorly pleaded is no ground for striking it out. The jurisdiction is to be used sparingly and with great caution. It is only in those plain and obvious cases that orders can be made (CF MacGary V.C. in Gleeson v J. Wippell [1917] 1 W.L.R. 510 at 518). In this case the classic grounds were restated in the summons:

1. the proceedings were an abuse of process of the court
2. the plaintiff has no reasonable cause of action

100. the proceedings were frivolous and vexatious.
     

Abuse of Process

Halsbury’s Laws of England 4th edition volume 37 para. 434 comments:

“Abuse of process of the court arises were such process is used not in good faith and for proper purposes but as a means of vexation or oppression for ulterior purposes or more simply where a process is misused. In such a case even if the pleading or endorsement does not offend any of the other specified grounds for striking out the facts may show that it constitutes an abuse of the process of the court.........”.

I find that is the case here. Mr. Mutch is asking this Court to order disclosure of trial and investigation materials for his criminal appeal. He is I find misusing the civil court for this ulterior purpose. These appeal materials can be obtained in the usual fashion.

Reasonable Cause of Action

In terms of part 1 (a), (b) and (c) of the originating summons I agree with the plaintiff that no reasonable cause of action has been raised. All that it appears the plaintiff is seeking by these “pleadings” is disclosure of trial investigation records and access to exhibits. The DPP’s office does not hold or control this material. In that sense no reasonable cause of action can lie against him.

Further in my view the appropriate way of obtaining these materials is by access through the criminal registry. I find there to be no reasonable cause of action in respect of paragraphs 1 (a), (b) and (c).

Frivolous and Vexatious

I was assured from the bar that the plaintiff/accused was given relevant materials during the course of criminal proceedings. He still has rights of access to trial material and exhibits for appeal purposes. The first respondent therefore argues that the proceedings are frivolous if not vexatious. In respect of paragraphs 1 (a), (b) and (c) I agree.

Recovery or Compensation Paragraph 1(e).

During the course of hearing counsel for the first applicant conceded that an action may lie against the Director of Public Prosecutions for the wrongful or negligent loss of a suspect’s property. It is clear that the court cannot curtail the plaintiff’s rights to bring an action against whomsoever he chooses requiring an accounting for property taken under warrant or seeking compensation if it is lost.

We are after all merely talking about the plaintiff’s “right” to bring or continue an action in some appropriate form. In making this finding I am in no way encouraging such action or making any observation about the appropriateness of doing so. I must assume that the factual basis of these poorly prepared allegations might be proved at trial. I can only ignore that factual basis if I am convinced to the point of certainty that the pleadings are a falsehood.

I am not in that position here.

The plaintiff may well amend his proceedings, properly plead his cause and allege the negligent care of property taken in the police raid. It would be wrong to deny him that remedy by striking out the entire issue now.

However even the unrepresented must properly engage the court in their proceedings. If there is an issue to be tried then lets have it clearly and properly pleaded.

Conclusion

Accordingly I grant the first respondent’s application in part and strike out from the originating summons paragraphs 1(a), (b) and (c) (dated 30th September 2003).

I refuse to make such an order in respect of paragraph 1(e).

I take into account the plaintiff’s current personal circumstances and limited financial resources. The State’s application was successful in part only. I accordingly do not make an order for costs on the application.

I direct that in respect of the originating summons paragraph 1(e) the defendant is to come by way of writ and file and serve his claim within 60 days. At that time with the consent of the first respondent he may consider it appropriate to discontinue the originating summons in respect of paragraph 1(e). The balance of these proceedings against the Commissioner of Prisons requires some management and accordingly I direct the plaintiff to file an affidavit of service of the originating summons as soon as possible. Thereafter the matter will be listed for mention.

OBITER Observation

It has been drawn to my attention that the plaintiff at my direction prepared and wanted to have filed certain written materials. Despite requests to the Prison Authorities to ensure that these materials were filed they were not. I am also advised that certain basic research materials purchased by the plaintiff to assist him in preparing his claim have not been given to him.

I wish to make it clear that I will not accept obstruction of the Court’s process in this way. If a plaintiff prisoner wishes to have documents filed they are to be delivered to the Registry within a reasonable time. If a plaintiff prisoner wishes to research the law and through the proper channels purchases materials for that purpose these should be given to him.

[ G. Winter ]
Judge

At Suva
Friday 13th February, 2004