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Lal v State [2014] FJHC 379; HAM194.2013 (29 May 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 194/2013

BETWEEN :

RAVINDRA LAL
APPLICANT

AND :

STATE
RESPONDENT

COUNSEL : Mr A Reddy for Applicant
Mr L Fotofili Respondent

Date of Hearing : 04/04/2014
Date of Ruling : 29/05/2014

RULING ON STAY

[01] The Applicant filed an application for the stay of High Court's appeal order in HAA 007 of 2013 which was delivered on 18/07/2013.

[02] In that appeal case HAA 007 of 2013, the prosecution appealed to the High Court against the acquittal of the Applicant at no case to answer stage in the Magistrates' Court Suva. After hearing appeal this court quashed the acquittal of the Applicant and ordered a re-trial before a new magistrate within 2 months of the appeal order.

[03] Being dissatisfied with the appeal order the Applicant filed an appeal to the Fiji Court of Appeal. The Applicant filed notice of motion and affidavit before this court for a stay pending determination of the appeal by the Fiji Court of Appeal.

[04] It is well established in Fiji that the High Court has the inherent power to order a stay of a proceedings. Authorities on stay seem to suggest the power to permanently stay and not to temporary stay.

[05] The stay proceeding is exceptional remedy. That remedy must be used in very exceptional circumstances and also with great caution.

[06] In the appeal judgment of this court in HAA 007 of 2013 ordered that a re-trial be held within 2 months of the order. That order has not been complied with. In the meantime the Petitioner has filed this stay application before this court after appealing against the order delivered in HAA 007 of 2013 to the Court of Appeal.

[07] Now this court has to consider whether it has the power to alter its own judgment as it becomes functus officio.

[08] In R v Lapa (No 2) (1995)80 A Crim R 398 (NSW CCA) the Court of Criminal Appeal of New South Wales in the judgment of Clarke JA(assented to by the other judges) raised two important points to consider on whether an appeal court can reconsider its judgment. In his judgment at page 402 and 405 said the following:

"It is well established at common law that a court may review, correct or alter its judgment at any time until its order or judgment has been perfected. Smith v NSW Bar Association (No 2) (1992)176 CLR 256 at 265; Re Suffield & Watts; Ex parte Brown [1888] UKLawRpKQB 43; [1888] 20 QBD 693 at 697;Texas Co (Australia) Ltd v Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382 at 457; Pittalis v Sherefttin [ 1986] QB 868 at 879; Re Harrission's Share [1995] Ch 260.

The position is different once the judgment or order has been perfected. Subject to the rules of the court and possible exceptions concerning subsidiary matters, a court has no power to reconsider its decision and the judgment can be reviewed only on appeal: Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529. Since Bailey there have been a number of decisions in the High Court bearing on the question of the court's power to review its own decision and the circumstances in which it may alter an order made but none of those cases has overruled Bailey or the common law rule that once the judgment has been perfected a court has no power, subject to any relevant rules, to alter its judgment in a substantial respect.

...The fundamental consideration which should determine whether a court of criminal appeal should reconsider its judgment is whether the failure to do so might to a miscarriage of justice. To put it another way, the application should be determined upon the interest of justice, giving full weight to the principle of finality. The second consideration is the basic practical one to which reference was made by the High Court of Criminal Appeal should deal with all grounds of appeal upon which argument was proffered before the case is sent to the High Court for consideration of a leave application."

[09] I agree that the trials in magistrate's court take longer due to voluminous numbers of cases. The other contributory factors for the delay are the diaries of the parties (prosecution, defence and the court) and the availability of witnesses. Due to above mentioned practical difficulties in the magistrate's court I think it is necessary that the re-trial issue need some modification.

[10] Having considered the issue in this stay application and the judgment mentioned above, I replace the sentence " The re-trial should be concluded in two months time" in my judgment delivered in HAM 007/2013 to "The re-trial be held as soon as practicable".

[11] Although the appeal judgment in HAM 007/2013 has been given, I made this replacement after taking in to account the interest of justice and the practical remedy.

[12] As a remedial action taken in HAM 007/2013, granting a stay order is not necessary. I therefore, dismiss the Applicant's application for Permanent Stay on all proceedings in Suva Magistrate Court Criminal case No: 666 of 2009.

[13] The State has all the liberty to continue their case filed already against the Applicant in the Suva Magistrate Court as per the direction of the Court.

[14] The Applicant has 30 days to appeal.

P Kumararatnam
JUDGE

At Suva
29/05/2013