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Vunivesi v State [2012] FJHC 1457; HAM 128.2012 (29 November 2012)

IN THE HIGH COURT OF FIJI
AT SUVA

MISCELLENEOUS JURISDICTION

Crim. Misc. Case No: HAM 128/2012

BETWEEN:

SAULA VUNIVESI
APPLICANT

AND:

THE STATE
RESPONDENT

COUNSEL : Applicant in Person
Ms. Amelia Vavadakua for Respondent
Hearing Date : 08/11/2012
Ruling Date : 29/11/2012

RULING ON COST

1. The applicant filed an Application for Cost against the State.

INTRODUCTION

2. The Applicant was tried before this court under two counts of Aggravated Robbery contrary to section 311(1) (b) of the Crimes Decree No: 44 of 2009. He was kept in remand until conclusion of his case No: HAC 61 of 2010.

3. At the conclusion of the trial the Assessors unanimously found the accused guilty to the charges. But after considering the evidence presented during the trial, this court over-ruled the guilty verdict of the Assessors and Acquitted the Applicant.

4. Now the Applicant filed this Application and seeks cost against the State on the following grounds:

i) Prolonged period held in servitude whilst in remand from 25th March 2010 to 20th March, 2012.

ii) Wrongful Confinement.

iii) Being kept under solitary confinement for 2 weeks at Naboro Prisons.

iv) Physical abuse by police officers in the course of being Caution Interview.

v) Denial of Bail for 2 years and 01 day.

vii) Prolonged delay of the case (HAC 61 of 2010) due to Prosecution continuously seeking adjournments.

viii) Expenses and time spend by family to attend his court case.

BACKGROUND OF EVENTS

5. Initially the applicant was charged along with two others, namely Elia Manoa and Navin Chand for the alleged offences.

6. The matter was first called on the 23rd of March, 2010 in the Magistrate's court and was transferred to the High Court to be called on 26th March, 2010 as it was a an indictable offence.

7. On 26th March, 2010 the matter was first called in before this court and State moved time to file information and Disclosures. Court granted time till 22nd April 2010.

8. On 22nd March, 2010 the State served Information and Disclosures and the case was adjourned to 26th April, 2010 for the plea.

9. On 26th April, 2010 all accused persons, including the Applicant pleaded not guilty and the matter further adjourned to 12th May, 2010 for mention.

10. On 21st May, 2010 court was informed that all three accused including the Applicant were still seeking legal representation. Thus matter further adjourned for to 30th June, 2010 to confirm legal representation.

11. On 30th June, 2010 the Applicant and Co-Accused sought for time to confirm Legal Aid representation. Hence matter again adjourned to 21st July, 2010.On that day accused No.1 Elia Manoa was represented by Mr. Vakaloloma.

12. Elia Manoa pleaded guilty to both counts on 29th July, 2010 before Justice Goundar and he was sentenced in August, 2010.

13. The other two including the Applicant moved further time to obtain legal representation.

14. On 9th August, 2010 both accused moved time to finalise their legal representation. Hence matter adjourned till 13th August, 2010.

15. On 13th August, 2010 Ms. Savou from Legal Aid inform the court that both accused had not lodged their applications. The matter had been adjourned to 27th August, 2010 to confirm Legal Aid representation.

16. On 27th August, 2010 as there was still no response from Legal Aid, Justice Goundar then transferred the matter to be dealt with by his brother judge, Justice Thurairajah on 08th October, 2010.

17. On 8th October, 2010 as the Legal Aid Applications were still pending the matter was adjourned till 7th February, 2011 to check legal representation.

18. On 7th February, 2010 accused informed court that their applications for Legal Aid had been refused by Legal Aid. Thereafter plea was taken and Applicant pleaded guilty to both counts. Matter was adjourned for Sentencing Submission on 8th February, 2011.

19. On 8th February, 2011 the State was ready with sentencing submissions and summary of facts. As there was a request from Legal Aid counsel to reconsider $20000.00 mentioned in the Summary of Facts the matter was again adjourned to 9th February, 2011.

20. On 9th February 2011 the accused disagreed to the amount being mentioned $20000.00 matter was adjourned till 8th March, 2011 to iron out the $20000.00 factual issue.

21. On 8th March, 2011 as the Legal Aid Application of co-accused was not finalized the matter adjourned till 19th April, 2011.

22. As the learned Judge was away in Labasa matter was listed to mention on 11th May, 2011.

23. On 11th May, 2011 the Applicant vacated his guilty plea and matter was fixed for trial to commence from 5th March, 2012 to run for three weeks. The matter was then listed for mention on 03rd November, 2011.

24. On 3rd November, 2011 the Applicant inform this court that he has three witnesses for his defence. Hence the matter was listed for PTC on 15th February, 2012.

25. On 15th February, 2012 the Applicant informed this court that he was going to call his alibi witnesses during the trial. But he had not filed his alibi list of witnesses. He had given a chance to file the same on or before 22nd February, 2012.

26. On 22nd February, 2012, Ms. Nawasaitoga for the Applicant filed and served in court voir dire grounds and notice of alibi. As per section 125 of Criminal Procedure Decree 2009 alibi notice was rejected by this Court.The State given time to file their list of witnesses with regards to voir dire inquiry. Hence matter adjourned till 2nd March, 2012.

27. On 02nd March, 2012 The State filed their additional disclosures. Court directed the State to file typed additional disclosures. Hence the matter was listed for mention on 5th March, 2012.

28. On 5th March, 2012 voir dire inquiry commenced and the matter was adjourned to 7th March, 2012 for voir dire submissions.

29. On 7th March, 2012 matter fixed for voir dire ruling and trial proper 14th March, 2012.

30. On 14th March, 2012 this court had rejected the Caution Interview Statements of both accused on the ground of their involuntariness. State entered a nolle against 2nd accused and trial proper proceeded only against the Applicant.

31. On 20th March, 2012 the State and the Applicant both made their closing submissions and the matter was adjourned to 22nd March, 2012 for Summing up.

32. Though the Assessors unanimously found the Applicant guilty to the charge this court acquitted him on 22nd March, 2012.

LAW

33. Section 150 of the Criminal Procedure Decree 2009 deals with the application for cost.

1. A Judge or magistrate may order 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 unreasonable prolong 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 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) penalize 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.

Section 158(2) of the Old Criminal Procedure Code provides:

"It shall be lawful for a judge of the [High Court] or any magistrate who acquits or discharges a person accused of an offence, to order the prosecutor whether public or private, to pay the accused such reasonable costs as to such judge or magistrate may seem fit:

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

CASE AUTHORITIES

34. State v Ravuvu [2004] FJHC 105: Criminal Appeal No: HAA 65 of 2003S:

In considering a costs application, a court should ask both parties to make submissions, and should specify the grounds on which costs are awarded. There are no other grounds on which costs may be awarded (Graham Southwick v State CAV0001 of 2003S) and a ruling on costs should specify whether the prosecution was unreasonably brought or unreasonably prolonged.

It is apparent that neither ground applied in this case. If the learned Magistrate had accepted the evidence of PW1, he would have convicted. No prosecutor can predict whether a court will accept the evidence any witness, when the statement of the witness appears to be credible. In this case, there was an equal chance of a conviction, as there was of an acquittal.

35. State v Southwick [1999] FJHC 123; HAC Criminal Case No.018 of 1998:

The said section 158(2) does confer a discretion in the court to make an order for cost but that discretion has to be exercised judicially which I have done bearing in mind that each case must be considered on its own special facts. In this case I find that no good grounds have been shown for the exercise of that discretion in the applicant's favour.

In this case which is a criminal proceedings a particular approach according to its own circumstances is required as already stated here above. As is clear from the provisions of section 158(2) the mere facts that the accused has been 'discharged' does not result in an order for costs being made in his favour, nor for the reasons that I have given after considering the submissions of the learned defence counsel that I ought to make the order for costs.

36. McCartney v State [2010] FJHC 30: Criminal Appeal No.013 of 2008:

In the instant case and in the absence of any application by the defence at the time for a stay of proceedings on the basis of unfairness, there was nothing to suggest to the prosecution that the proceedings were unreasonable.

Arguments

37. The Applicant submits that, he was unreasonably and unlawfully detained for more than two years in the prison. Further Prison Authority had treated him unprofessionally to solitary confinement when he was still a person who was unconvicted and innocent.

38. State submits that the allegations against Prison Authorities can be addressed to Commissioner of Prison as Director of Public Prosecution is different entity.

39. Applicant submits that the State has snatched away his right to live and to live free without any truth to be proven in their accusations.

40. State submits that the case against the Applicant was based on circumstantial evidence. They relied on the evidence of the complainants.

41. Applicant in submission states that he never contributed to delay or adjournment before the trial.

42. State submits that there was unreasonable delay in having the matter brought to trial; it was mostly caused by the Applicant insisting on legal representation. On perusal of the court it is very clear that most of the adjournments were due to applications made by the Applicant.

43. Her Ladyship, Justice Shameen said in State v Ravuvu-HAA 65 of 2003S that:

"no prosecutor can predict whether a court will accept the evidence of any witness, when the statement of the witness appears to be credible. In this case, there was an equal chance of a conviction, as there was of an acquittal".

44. Though the Applicant was acquitted after a full trial, I conclude that the proceedings were not unreasonably brought against him. Further State has not contributed any unreasonale delay in this matter.

45. Due to aforementioned reason I conclude that this Application has no merit. Hence I dismiss this application.

P.Kumararatnam
JUDGE

At Suva
29/11/2012