| Fiji Islands - In re Rutten (CA) - Pacific Law Materials |
IN THE FIJI COURT OF APPEAL
MISCELLANEOUS JURISDICTION
APPEAL NO. 1 OF 1992 (MISC)
(High Court No. 324/92)
(High Court Misc 6/92)
IN THE MATTER of Helmut Kasper Paul Rutten
AND IN THE MATTER of the decision of the High Court of Fiji
on the application of Helmut Kasper Paul Rutten for a
Writ of Habeas Corpus under Section 10 of the Extradition Act, Cap. 23
AND IN THE MATTER of an application for bail under the Court of Appeal Act, Cap. 12.
BETWEEN:
HELMUT PAUL KASPER RUTTEN
Appellant/Applicant
AND:
STATE
Respondent
Mr M. Raza for the Applicant
Ms N. Shameem (Deputy D.P.P.) for the Respondent
RULING
This is an application for bail pending appeal.
The Applicant was charged in the United States of America with four counts of Conspiracy to Import 12 tons of Thai Marijuana into
that country.
On the 8th of July, 1992 an order was made against the Applicant in the Magistrate's Court, Suva under Section 9 of the Extradition Act, Cap 23 committing him into custody to await a Ministerial order for his extradition to the United States to face criminal charges
filed against him. The presiding Magistrate also refused an application for bail holding that he had no power to grant such an application.
On 6th August, 1992 the High Court (per Jesuratnam J.) refused the Applicant's application for bail pending an appeal to the High
Court. Jesuratnam J. also held that the Applicant had no right of appeal.
On 22nd August, 1992 the Applicant's application to the High Court for an order for a writ of Habeas Corpus under Section 10 of Cap
23 was dismissed by Fatiaki J. He ruled that the Applicant was in lawful custody. He also held that the application before him was
not an appeal. Section 10(1) provides 2 avenues of challenging a committal order made under Section 9 of Cap 23 viz -
(i) an action instituted in the Supreme Court (now High Court) for redress of a contravention of his right to personal liberty; or
(ii)... for review of the order of committal.
The Applicant resorted to avenue (i) by way of a Writ of Habeas Corpus.
On 1st September, 1992 the Applicant filed a "Notice of Appeal Against the Order for Extradition" in the Registry of the
Fiji Court of Appeal. With the leave of this Court the Applicant has now revised his grounds of appeal. They are now contained in
the document entitled 'Notice of Grounds of Appeal' dated 30th November, 1992 but filed on 1st December, 1992.
Before me the Respondent has raised a preliminary objection to this application for bail pending appeal contending that the Applicant
has no right of appeal to the Court of Appeal either under the Court of Appeal Act or under the Extradition Act. Mr M. Raza relies on Section 10(5) of the Extradition Act and Sections 6 and 15 of the 1990 Constitution to argue that his client has a right of appeal. He argues, inter alia, that Section
10(5) of the Act clearly allows for appeals. It reads as follows:-
"(5) For the purposes of this section proceedings in an action for redress of a contravention of a person's right to personal
liberty or for review of an order shall be treated as pending until any appeal in those proceedings is disposed of; and an appeal
shall be treated as disposed of at the expiration of the time within which the appeal may be brought or, where leave to appeal is
required, within which the application for leave may be made, if the appeal is not brought or the application made within that time."
The Respondent submits that the Court of Appeal's powers cannot be extended beyond the confines of the Court of Appeal Act simply on the basis of Section 10(5) of the Extradition Act, Cap. 22 which does not create a right of appeal but merely provides that extradition proceedings should be stayed pending any appeal.
Both parties have submitted written arguments in support of their points of view.
It is not in dispute that should it be found that the Applicant indeed has no right of appeal the question of granting or refusing
bail will fall by the way side. In short a question of jurisdiction is in issue because if the Applicant has no right of appeal the
Court of Appeal has no jurisdiction to entertain his Notice of Appeal. In the circumstances I do not think that it is desirable that
a single Judge should rule on the preliminary but fundamental issue that the Applicant has no right of appeal. Even if I rule on
the preliminary issue the dissatisfied party will be entitled to request a review by the Court itself. Thus the proceedings can be
further prolonged. This is not desirable in the interest of justice as the Applicant is in custody.
I therefore propose to transfer the bail application to the Court of Appeal itself as distinct from a single Judge so that the preliminary
issue of jurisdiction could be determined by the Court itself. If the Court decides that the Applicant has no right of appeal then
that will be the end of the matter and no further proceedings will be necessary. On the other hand, if the Court decides that the
Applicant has a right of appeal it could then proceed to deal with the bail application on merits or remit the bail application to
be dealt with by a single Judge.
This application is set down for hearing by the Court of Appeal on Monday 1st February, 1993 at 9.30 am with a view to dealing with
issue of jurisdiction arising from the preliminary objection that the Applicant has no right of appeal to the Court of Appeal.
Sir Moti Tikaram
Resident Justice of Appeal
Suva
7th January 1993.
AAM0001D.92S
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