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Railumu v Commander, Republic of Fiji Military Forces [2006] FJCA 7; ABU0066J.2004 (24 March 2006)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

Civil Appeal No. ABU0066.2004
(High Court Civil Action HBM0003.2003S)

BETWEEN:

METUISELA RAILUMU
ISIRELI CAKAU
AKILISIO ALAVA
BARBADOS MILLS
PAULIASI NAMULO
JONA NAWAQA
BENIAME SOKIVETA
FILIMONE RAIVALU
Appellants

AND

THE COMMANDER, REPUBLIC OF FIJI MILITARY FORCES
THE MINISTER OF HOME AFFAIRS
THE ATTORNEY GENERAL
Respondents

Date of Hearing: Friday 17 March 2006

Coram: Scott, JA
Stein, JA
Ford, JA

Counsel: Mr. S. R. Valenitabua for the Appellants
Mr. K. Tuinaosara for the First Respondent
Mr. K. Keteca for the Second and Third Respondents

Date of Judgment: Friday 24 March 2006

JUDGMENT OF THE COURT

INTRODUCTION

[1] On 24 December 2002 the Appellants, who were all serving members of the Republic of Fiji Military Forces (the RFMF), were each charged with two counts of murder allegedly committed on 20 November 2000. They were remanded in military custody. On 20 January 2003 they sought habeas corpus. The basis of the application was that the RFMF did not have the jurisdiction to charge and try them for the offence of murder before a Court Martial and that they were therefore being wrongfully detained.

[2] On 13 February 2003 the Appellants appeared before another Court Martial charged with other offences which were alleged to have been committed in May 2000. On 16 August 2004 the Appellants were convicted on those charges and sentenced to terms of imprisonment ranging between 3 and 6 years. The appeal period has expired but the Appellants have not appealed against the convictions recorded against them. One of them has completed his sentence and has been released.

[3] The application for habeas corpus was heard by the High Court (Jitoko J) on 4 March 2003. It was conceded by the Appellants that the only period of alleged unlawful detention ran from 24 December 2002 to 13 February 2003. At the date, therefore, that the hearing of the application took place, it was accepted that the Appellants were being lawfully detained. The Appellants however were seeking more than their release: by questioning the right of the RFMF to charge and try them for the offence of murder they were also seeking to prevent the murder trial taking place at all.

[4] On 14 March 2003 the High Court declined to issue the writ. The judge pointed out that the Appellants had conceded that they were actually being lawfully detained. He therefore took the view that to order their release following the expiry of the alleged period of unlawful detention would be 'nugatory'. The judge also declined to grant the declaration sought. After carefully considering the relevant provisions of the UK Army Act 1955, the RFMF Act (Cap. 81) and the United Kingdom (Jurisdiction of Colonial Courts) Order 1965, he reached the conclusion that the Appellants had not established a prima facie case that the RFMF did not have the jurisdiction to prosecute them for murder. The Appellants appealed.

[5] On 22 August 2003, after their appeals had been deemed abandoned for failure to comply with the Court of Appeal Rules, the Appellants appeared before a single Justice of Appeal seeking leave to appeal out of time. The Appellants again conceded that the period of their alleged unlawful detention had expired and that they were therefore currently being lawfully detained. They wished, however, to appeal against the High Court finding that the murder charges against them could lawfully proceed.

[6] Leave to appeal out of time was refused. There were three principal grounds for the refusal. First, in view of the fact that the Appellants were currently being lawfully detained, a successful appeal would not lead to their release. Secondly, Rule 36 (1) of the Rules of Procedure (Army) 1972 provided the Appellants with a procedure by which they could challenge the jurisdiction of the Court Martial before which the murder charges were pending (and therefore, presumably, the resort to habeas corpus to determine the legality of the proceedings was unnecessary). Thirdly, it was pointed out that a grant of leave would further delay the commencement of the hearing before the Court Martial which, nearly three years after the matters complained of, had already been adjourned twice to allow the Appellants to pursue their appeal.

[7] On 10 September 2004 the Supreme Court granted special leave to appeal against the dismissal of the application for leave to appeal out of time to the Court of Appeal. It set aside the dismissal of the application and remitted the appeal to the Court of Appeal for hearing. In their reasons for the judgment, published on 17 September, the Supreme Court identified three questions of general importance which together they held to satisfy the criteria necessary for the grant of special leave to appeal. The three questions were:

1. Whether habeas corpus may be granted for the release of a person from detention on one basis when that person may lawfully continue in detention on another?;
   
2. Whether the availability of a challenge to the jurisdiction of a military court provides a sufficient basis for refusal of habeas corpus in respect of detention pending the convening of that court?; and
   
3. Whether the charge of murder can be heard in the Court Martial?
   

[8] Addressing the three questions, the Supreme Court first pointed out that there were circumstances in which habeas corpus might and should be granted although the issuance of the writ would not lead to the applicant’s release from detention. A number of examples of these circumstances could be found cited in Habeas Corpus; Australia, New Zealand, the South Pacific (Federation Press, Sydney 2000). Given the possible existence of these circumstances it followed that it was not axiomatic, as had apparently been assumed both by the High Court and the single Justice, that where there was no actual prospect of release, a grant of habeas corpus would be nugatory or of no effect and should therefore be refused.

[9] The Supreme Court did not consider the second question in any detail. It merely stated that in its opinion the single Justice had given 'undue weight' to the availability of the procedure.

[10] Commenting on the third question the Supreme Court wrote:

'It is necessary to consider the possible consequences of the grant of special leave in this case. If special leave were granted and the Court were to allow the appeal against the decision of Penlington JA then the appeal against the judgment of Jitoko J would have to be heard by the Court of Appeal. It would be open to that Court to determine the important question of law which arises in relation to Section 70 of the Army Act 1955. The Court might resolve that question in favour of the petitioners but still decline habeas corpus for practical reasons. This would not appear to prevent the granting of a declaration relating to the validity of the murder charges which are pending. Any challenge to the jurisdiction of the murder court martial would in effect be resolved in advance by such a procedure. We express no view on what the Court of Appeal should do in such event but rather what seems to us to be open to it to do.' (emphasis added.)

[11] Three days after the Supreme Court delivered its judgment the murder charges against the Appellants were withdrawn.

RESPONDENTS’ SUBMISSION

[12] Mr. Tuinaosara (with whom Mr. Keteca concurred) submitted that the issues before Jitoko J had, with the passage of time and supervening events, become otiose and moot. Alternatively, for detailed reasons given, the High Court was right in its interpretation of the relevant provisions of the law.

APPELLANTS’ SUBMISSION

[13] Mr. Valenitabua rejected the suggestion that the issue raised by the Appellants was either otiose or moot. While accepting that there had to be an actual controversy in continued existence and that where the presented issues were no longer alive the cause would become moot (see Madever v. Umawera School Board of Trustees [1993] 2 NZLR 748) he suggested that the purpose of the appeal was to have the High Court Judgment set aside, that the Appellants’ claim that they had been falsely imprisoned had not been finally decided and that a final resolution of the question of the jurisdiction of the RFMF to prosecute murder cases (and a number of other very serious charges) would offer 'practical advantages' to other soldiers who might be unfortunate enough to find themselves in the same position as the Appellants. On the assumption that the plea of mootness would be rejected, Mr. Valenitabua also offered a thorough and detailed analysis of the somewhat convoluted provisions of the applicable legislation and concluded that the Judge had erred in his interpretation of their meaning and effect.

DISCUSSION

[14] At the risk of stating the obvious we begin our consideration of the issue by observing that the principal objective of a writ of habeas corpus is to secure the release of the applicant from unlawful or unjustifiable detention. In Secretary of State for Home Affairs v. O’Brien [1923] AC 603, 609 Lord Birkenhead described the writ as:

'... perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty third year of Edward I. It has through the ages been jealously maintained by Courts of Law as a check upon the illegal usurpation of power by the Executive at the cost of the liege. In the course of time certain rules and principles have been evolved;'

[15] One of the rules which has evolved is that the writ will not issue except where the ordinary legal remedies are inapplicable or inadequate (see R v. Cowle (1759) 2 Burr 834, 855 and Crowley’s Case (1818) 2 Swan 1, 48). An example of this principle in operation may be found in R v. Commanding Officer of Morn Hill Camp ex parte Ferguson [1917] 1 KB 176, 179 where Lord Reading CJ explained that:

'if an erroneous decision of a magistrate entitled a party detained by the magistrates’ order to come to this court for a writ of habeas corpus, the writ would furnish a ready means of appealing to this court from every decision of a magistrate ordering the detention of an offender. If there were no means of questioning a magistrates’ order there might be some ground for invoking the assistance of this Court in the way chosen in this case, but there is a well known procedure by way of special case whereby the decisions of magistrates can be inquired into.'

This rule is similar to the well known rule that judicial review will not normally be granted when alternative remedies are available (see e.g. R v. Epping Justices ex parte Goldstraw [1983] 3 All ER 257. Applying to the facts of this case the principle that habeas corpus is not a procedure to be employed where a release from unlawful detention is not being sought, we conclude, first, that it is a procedure unsuited to the recovery of damages for the tort of false imprisonment.

[16] In the course of considering whether or not to grant the writ, the Court may of course become engaged in a close examination of the precise legal provision which is said to justify the Applicant’s detention but that this examination is dependent on the continued existence of the illegal detention is illustrated by the rule that habeas corpus will not be granted once the detention has come to an end (Barnardo v. Ford, Gossage’s case [1892] UKLawRpAC 34; [1892] AC 326). It may be said, in other words, that the nature of the writ is essentially remedial, not declaratory.

[17] In each of the cases referred to in Habeas Corpus; Australia, New Zealand, the South Pacific (supra) the applicant, at the time the writ was issued, was found to be held illegally under one process but legally under another. In the present case, the situation is now quite different. While it might formerly have been the case that the Applicants were being concurrently detained as a result of one legal and one illegal order, that, since the murder charge was dropped, is no longer the case. In our view, there now no longer exists any basis at all, even on the basis of theoretical concurrent detention, to assert the existence of an illegal detention which could justify the grant of the writ.

[18] As will have been seen from the passage from their Lordships judgment quoted in paragraph 10 above, the Supreme Court’s suggestion that this Court might usefully resolve in advance the difficult questions arising from the application of Section 70 of the 1955 Army Act was offered on the understanding that the murder charges were still pending. Once it is accepted that the charges have now being withdrawn, it will be appreciated that not only is there no longer any scope for habeas corpus to be granted but that any examination by this Court of the important questions of law which have arisen would be purely academic.

[19] As a general principle the Courts do not give purely advisory opinions. In Ainsbury v. Millington [1987] 1 WLR 379, 381 Lord Bridge said:

'it has always been a fundamental feature of our judicial system that the Courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved.'

(And see also Gardner v. Dairy Industry Authority of NSW (1977) 52 AJLR 180, 188; Church of Scientology v. Woodward (1983) 1 43 CNR 25, 62 and Ainsworth v. Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581- 2).

CONCLUSION

[20] In our view the necessary substratum for a writ of habeas corpus to issue, namely an alleged illegal detention, no longer exists and therefore this appeal must fail. In Barbados Mills & Ors v. The State ([2005] FJCA 6; AAU0035.2004 – FCA B/V o5/436, 462) a differently constituted Bench of this court called for:

'... urgent attention [to] be given to reform of court martial law in Fiji.'

We endorse that call. The important jurisdictional questions which this appeal has highlighted will most suitably be addressed as part of an overall review of the way in which Courts Martial shall in future operate in Fiji.

RESULT

[1] Appeal dismissed.

[2] No order as to costs.

Scott J.A.
Stein J.A.
Ford J.A.

Solicitors

S.R. Valenitabua Esq. for the Appellant

Legal Officer, Army Legal Services for the First Respondent

Office of the Attorney General for the Second and Third Respondents