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Tudravu v State [2010] FJHC 532; HAM222.2010 (19 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Misc. Crim. Case No: HAM222 of 2010

BETWEEN:

RUSIATE TUDRAVU
Applicant

AND:

THE STATE
Respondent

Hearing: 15 November 2010
Ruling: 19 November 2010

Counsel: Mr. R. Chaudhary for Applicant
Mr. J. Daurewa for State

RULING

[1] The defence seeks to quash the order transferring the case to the High Court for trial on the ground that the accused was not heard before the order was made by the Magistrates' Court.

[2] The court record shows that the accused appeared in the Magistrates' Court on 19 August 2010 charged with four counts of abuse of office. The accused was represented by counsel. The State applied for the case to be transferred to the High Court for trial, and in support of the application, counsel for the State gave reasons for making the application. Counsel for the accused opposed the application and suggested to the court that the State should apply in writing.

[3] In reply, counsel for the State stated that he wished to file submissions.

[4] The learned Magistrate adjourned the case to 24 August 2010 for mention without making any order for the State to apply for the transfer in writing or to file submissions.

[5] On 24 August 2010, the court record shows that neither the accused nor his counsel appeared in the Magistrates' Court. Upon application by the State, a bench warrant was issued against the accused and the case was transferred to the High Court.

[6] The following day, that is, 25 August 2010, the case was recalled in the Magistrates' Court. Counsel for the State quite fairly brought to the attention of the learned Magistrate that a wrong date was noted in the accused's bail form. Instead of 24 August, 24 September was noted. He applied for cancellation of the bench warrant but he maintained the transfer should take effect because the accused and his counsel had notice of the mention date of 24 August 2010. The learned Magistrate accepted the submissions of the State, cancelled the bench warrant and issued a notice for the accused to appear in the High Court.

[7] I have considered the entire court record. I do not find anything sinister about the manner in which the transfer was made to the High Court. The accused and his counsel were aware of the State's application for transfer when it was orally made on 19 August 2010. There was no legal requirement that the application had to be made in writing. However, the State agreed to file written submissions when the defence opposed the application. The case was adjourned to 24 August 2010 for mention without the learned Magistrate making an order for filing of submission.

[8] However, it appears from the transfer ruling of the learned Magistrate that the State did file written submissions and those submissions were considered before the decision to transfer was made.

[9] As Lord Bridge in Lloyd v McMahon [1987] UKHL 5; (1987) AC 625 at page 702 said:

"The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates."

[10] In R v Commission of Racial Equality ex parte Cottrell and Rothon (1980) 3 AER 265, Lord Lane at page 271 said:

"Indeed, all that the rules of natural justice mean is that the applicant should be treated fairly. Accordingly, before assessing the fairness of the manner in which the decision complained of was taken ..., it is necessary to analyse the context in which it was made and the nature of the decision."

[11] While the accused was given an opportunity to respond to the State's oral application for transfer, and the court record shows that counsel for the accused did respond to the application, the unfairness to the accused arise from the learned Magistrate's decision to rely on the written submissions of the State that was filed later and without giving the accused an opportunity to respond to it. In this sense, the accused was denied natural justice.

[12] For these reasons, I quash the transfer order and remit the case to the Magistrates' Court for another Magistrate to hear the State's application for transfer.

[13] The accused is to appear in the Magistrates' Court on 29 November 2010 at 9.30 am. His bail is extended.

Daniel Goundar
JUDGE

At Suva
19 November 2010

Solicitors:
Messrs. Gordon & Chaudhary Lawyers for Applicant
Office of the Director of Public Prosecutions for State