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Kumar v State [2012] FJHC 1345; HAA009.2012 (27 September 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL CASE NO HAA 009 OF 2012

BETWEEN:

AVINESH ROHIT KUMAR
PRAVEEN KUMAR
Appellants

AND:

STATE
Respondent

Counsels : Appellants – Mr. Iqbal Khan
Respondent – Mr. T. Qalinauci

Date of Judgment: 27th September, 2012

JUDGMENT

1. This is an appeal against the Order of Payment of Cost.
   

Background:

2. The Appellants above named was originally charged before the Magistrate Court for Larceny by Servant punishable under Section 274 of the Penal Code.
   
3. Both Appellants were defended by their Counsel Mr. Iqbal Khan. On the 23rd May 2012 on behalf of the Counsel an application was made to vacate the Voir Dire enquiry. After hearing the submission the learned Magistrate imposed a cost order against the Counsel.
   
4. Being aggrieved with the said order the Counsel had preferred an appeal to this Court and submitted following grounds:
   
   • (a) "That the learned trial Magistrate erred in law and in fact in ordering a payment of $500.00 (Five Hundred Dollars) as costs against the Appellants Counsel and in default of payment sentenced to 50 (fifty) days imprisonment was an abuse of process, and in breach of the provisions of Criminal Procedure Decree 2009.
     
   • (b) That the learned trial Magistrate erred in law and in fact in making the said order against the Appellants Counsel, did not take into consideration the provisions of Section 170 of the Criminal Procedure Decree 2009.
     

(c ) That the learned trial Magistrate acted in an obtuse manner when he ordered payment of $500.00 (Five Hundred Dollars) against the Appellants Counsel with 50 (fifty) days imprisonment if the Appellants Counsel did not pay the said sum in 28 (twenty eight) days.

(d) That the learned trial Magistrate erred in law and in fact in not taking into consideration that the Prosecution did not ask for any costs as the Appellants Counsel's office had already notified the Prosecution of the application for adjournment by the Appellants Counsel"

5. The Counsel to the Appellants filed submissions on the 22nd May 2012 and submitted the Chronology of Events as follows:
   
   • 1.1 "That on the 23rd day of May 2012 the above matter was listed for hearing;
     
   • 1.2 That on the 22nd day of May 2012 the Appellants Solicitors wrote a letter to the Divisional Prosecuting Officer, Prosecution office, Lautoka and faxed to them on their Fax No 6660367 advising them that the Appellants' Solicitor Mr. Iqbal Kan (hereinafter called "Mr. Khan) would be engaged in Court of Appeal Civil Appeal No ABU 0041 of 2011 in the matter of Suman Shalini Devi v Mul Chand and hence Mr Khan was not able to conduct the hearing of the above matter which letter was carbon copied to the Clerk of the Court, Magistrates Court, Lautoka and faxed to them on Fax No 6650444.
     
   • 1.3 That the letter to the Prosecution Office was confirmed received by one Marica at 9.45 am on the 22nd day of May 2012 and the copy faxed to the Clerk of the Court at 9.45 am on the 22nd may 2012 was confirmed received by one Tima.
     
   • 1.4 That on the 23rd day of May 2012 Ms Laisani Tabuakuro appeared on behalf of Mr. Iqbal Khan the Counsel for the Appellants and requested adjournment as per letter dated 22nd day of May 2012 from the Appellants Counsel when the Presiding Magistrate ordered costs of $500.00 against the Appellants in default fifty days imprisonment.
     
   • 1.5 That had Mr. Khan not been engaged in Court of Appeal would have definitely appeared in Court and conducted the Voir Dire hearing"
     
6. Further the Appellants submitted that the Magistrate had not considered Section 170 of the Criminal Procedure Decree.
   
7. At the hearing the Appellants were asked to submit the dates on which these cases namely the case before the Magistrate and the Court of Appeal was fixed.
   
8. The Counsel for the Appellants did not file any submissions until the due date. The Respondent filed a submission on the 10th September 2012.
   
9. Perusing the Respondents submission I find the Chronology of Events stated as follows:
   

"(4) On 22nd of June, 2011, there was a Notice of Motion supported to vacate the hearing. The court noted that this was the second adjournment. Court informed the Counsel that it will be the last adjournment and the Court will not entertain it again. The Court then vacated the hearing and adjourned on the 11th of July, 2011.

(5) On the 11th of July 2011, then advice the two Appellants to file the grounds of voir dire.

(6) On the 15th of August 2011, the Court set the date for voir dire inquiry on the 31st October, 2011.

(7) On the 31st October, 2011, Mr. Iqbal Khan was abroad. His junior Counsel seeks an adjournment. All the prosecution witnesses were present on that day. Hearing was vacated. Matter was adjourned for mention.

(8) On the 13th of February 2012, Ms Vokanavanua was present with the two Appellants. Court then set a hearing date on 23rd May 2012.

(9) On the 23rd of May, 2012, Ms Tabuakuro appeared and informs the Court that Mr. Iqbal Khan was held in Court of Appeal in Case No ABU0041 of 2011 in the matter of Suman Shalini Devi v Mul Chand. She was acting on instructions of Mr. Iqbal Khan seeking to vacate the voir dire inquiry.

(10) The prosecution and Ms Tabuakuro then made submission to the Court about the vacating of the voir dire inquiry. Prosecution informed the Court that 9 witnesses were ready and one was not present. Prosecution informs the Court that it was the third time the hearing has been vacated on the application of the defence. Ms Tabuakuro admits that it was the third adjournment. She informs the Court that there is no discretion for the learned Counsel to decide when to appear in Court of Appeal. She further states that Mr. Iqbal Khan is not able to appear today since he has to appear in Court of Appeal and has to give preference.

After hearing both submission the Court then vacated the voir dire inquiry and the learned Magistrate then impose a $500.00 cost on the Counsel of the two accused persons. The cost ordered to be paid in 28 days. In default of payment of the fine by the Counsel, it will be 50 days imprisonment. 28 days was given to appeal the decision of the Court.

Law:

10. Considering Section 150 of the Criminal Procedure Decree states as follows:
    

"Costs against accused or the prosecutor

150. — (1) A judge or magistrate may order any person convicted of an offence or discharged without conviction in accordance with law, to pay to a public or private prosecutor such reasonable costs as the judge or magistrate determines, in addition to any other penalty imposed.

(2) A judge or magistrate who acquits or discharges a person accused of an offence, may order the prosecutor, whether public or private, to pay to the accused such reasonable costs as the judge or magistrate determines

(3) An order shall not be made under sub-section (2) unless the judge or magistrate considers that the prosecutor either had no reasonable grounds for bringing the proceedings or has unreasonably prolonged the matter.

(4) A judge or magistrate may make any other order as to costs as may be required in the circumstances to —

(a) defray the costs incurred by any party as a result of an

adjournment sought by another party;

(b) recompense any party for any costs arising from any

conduct by any other party which delays a trial or requires the expenditure of monies as a result of the conduct of that party during a trial;

(c) penalise a lawyer for any improper action during a trial, and in such a case the order may be that the lawyer pay the costs personally; and

(d) otherwise meet the interests of justice in any case.

(5) The costs awarded under this section may be awarded in addition to any compensation awarded by the court under this Decree or the Sentencing and Penalties Decree 2009.

(6) Payment of costs by the accused shall be enforceable in the same manner as a fine.

(7) In this section "private prosecutor" means any prosecutor other than a "public prosecutor.

(2) The appellate court shall have power to give such costs of the appeal as it determines."

11. Section 170 deals with adjournment anyhow the relevant section is reproduced for easy reference.
    

"Adjournment

170. — (1) During the hearing of any case, the magistrate must not

normally allow any adjournment other than from day to day consecutively until the trial has reached its conclusion, unless there is good cause, which is to be stated in the record.

(2) For the purpose of sub-section (1) "good cause" includes the reasonably excusable absence of a party or witness or of a party's lawyer.

(3) An adjournment under sub-section (1) must be to a time and place to be then appointed and stated in the presence and hearing of the party or parties, or their respective lawyers then present.

(4) During the adjournment of a case under sub-section (1), the magistrate may —

(a) permit the accused person to leave the court until the further hearing of the case; or

(b) commit the accused to prison; or

(c) release the accused upon his or her entering into a bond (with or without sureties at the discretion of the magistrate) conditioned for his or her appearance at the time and place to which the hearing or further hearing is adjourned.

(5) If the accused person has been committed to prison during an adjournment the adjournment may not be for more than 48 hours.

(6) If a case is adjourned, the magistrate may not dismiss it for want of prosecution and must allow the prosecution to call its evidence or to offer no evidence on the day fixed for the adjourned hearing, before adjudicating on the case.

(7) A case must not be adjourned to a date later than 12 months after the summons was served on the accused unless the magistrate(for good cause which is to be stated in the record)considers such an adjournment to be required in the interests of justice. "

12. In Akinisi Panapasa v The State Criminal Misc HAM 101 of 2010 the Court observed "The decree has restrained the circumstance provided by the Code, there is now a wider power to order costs either Prosecution or the defence"
    
13. In Von v Commonwealth of Australia (No 2) [2009] FCAFC 172 (8 December 2009) at [15], the Full Court of the Federal Court of Australia referred to the relevant provisions of the Federal Court of Australia Act and of the Federal Court rules, and stated:
    

"There are two bases upon which the Court may make an order for costs personally against a legal practitioner. The first is S.43 of the Federal Court of Australia Act 1976 (Cth). An example of the exercise of this discretion is to be seen in the case of Ex Christmas Islanders Association Inc v Attorney-General (Cth) (No 2) (2007) 233 ALR 96, where French J (as he then was) required that a barristers and solicitor pay the Commonwealth's costs personally.

The second basis is to be found in O.62 r 9 of the Federal Court rules which allows the Court to award costs against a legal practitioner if it appears to the Court that 'costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default..."

14. Considering the 1st ground of Appeal as mention in the paragraph 4(a) above. This ground of appeal comes under Section 150 of the Criminal Procedure Decree. Considering the Section 150 (4) (supra) the Magistrate has jurisdiction. I do not see any breach of the said section hence I dismiss the ground of appeal.
    
15. The 2nd ground of appeal is referred to Paragraph 4(b) above. In the Ruling the Magistrate had noted as follows:
    

"There is no question that the preference should be given to superior court. But it is the duty of a Counsel not to get double booked. Even then a Counsel should have the courtesy to inform this court in advance to vacate the inquiry to avoid any inconvenience."

16. The court record also shows that on the 22nd June 2011, the then Magistrate Mr. Nanayakkara had warned the Counsel for the Appellants that it will be the last adjournment to vacate the hearing.
    
17. This situation is amply dealt by the Magistrate hence this ground fails on its own merits.
    
18. The 3rd ground of appeal is referred in Paragraph 4 (c) above. This comes under Section 150 of Criminal Procedure Decree. Considering the orders made by the Magistrate I find the Magistrate had given reason for making such order further considering the Seniority of the Counsel. Cost of $500.00 ordered is very nominal hence I do not find the order of the Magistrate is arbitrary.
    
19. The last ground of appeal also referred in Paragraph 4 (d) above. The Appellants submits that the Magistrate erred in law by ordering cost when the Prosecution did not ask for cost. Considering Section 150 (4) of the Criminal Procedure Decree (supra). "Considering the circumstances the Magistrate may order cost." In this case the Magistrate was empowered under the said section. I do not find any error in law. Hence this ground of appeal also fails on its own merits.
    
20. Considering carefully I find all grounds of appeal failed hence I dismiss the appeal.
    
21. Appeal dismissed.
    

S. Thurairaja
Judge

At Lautoka
27th September 2012

Solicitors: Messrs Iqbal Khan & Associates for the Appellants
The Office of the Director of Public Prosecution for the Respondent