IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISC. CASE NO: HAM0031 OF 2003S

LAND TRANSPORT AUTHORITY

v.

HEMENDRA VISHWA;
ILANGO; and
KAILESH PRASAD

Hearing: 24th October 2003
Judgment: 12th November 2003

Mr. V. Vosarogo for Land Transport Authority
Mr. V. Maharaj for Respondents

JUDGMENT

This is a referral to the High Court by the Suva Magistrates’ Court on the case stated procedure of the Criminal Procedure Code, seeking an answer to the following question: Does the Land Transport Authority have any powers to receive fines from driving offenders when the 21 day period specified in the Traffic Infringement Notices for the payment of fixed penalties, has expired?

History

The background of the case is that three accused persons were charged with traffic infringements. Two of the accused persons were charged with the improper use of a mobile telephone whilst driving and the third, with failing to wear a seatbelt. They were each served with a traffic infringement notice at the scene. Those notices provide as follows:

“Take notice that, if not later than 21 days from the date hereof, payment of the fixed penalty of $_________ is received as specified below at a Land Transport Office, all liability in respect of the offence will be discharged and no further action will be taken. HOWEVER if that fixed penalty is not so paid, you are hereby required to attend __________ Magistrates’ Court on _________ at ________ to answer the charge set out above, UNLESS –

(a)	you admit the offence and plead guilty in writing as specified below; OR

(b)	an appearance is made on your behalf by a barrister and solicitor, in which case your personal attendance will be excused and the case will be disposed of in your absence.”

The cases were called in the Suva Magistrates’ Court because the fixed penalties were not paid at the scene, and there were no pleas of guilty in writing. The matters were adjourned for formal proof. After several adjournments, the prosecutor for the Authority told the court that the accused persons had paid their fines (presumably the fixed penalty amounts) and that the charges should be withdrawn. The learned Magistrate did not grant leave for the withdrawal of charges, instead referring the matter to the High Court for determination. The question, simply put, is whether the Land Transport Authority can, after the 21 day period has expired, still accept the fixed penalty and on that basis, apply to withdraw charges.

At the hearing of this application, counsel were ordered to file written submissions. Counsel for the Authority has complied. Counsel for the accused has not. No explanation has been given to me for this failure to follow a court order, and I find such conduct discourteous and unhelpful. I have proceeded to judgment in the absence of submissions from the accused.

Jurisdiction

Counsel for the Authority raises a preliminary question in respect of the nature of this application. He submits that this matter was referred to the High Court in error because the case stated procedure can only be used when one of the parties applies for such a referral.

Section 329(1) of the Criminal Procedure Code provides as follows:

“After the hearing and determination by any magistrates’ court of any summons, charge or complaint, either party to the proceedings before the said magistrates’ court may, if dissatisfied with the said determination as being erroneous in point of law, or as being in excess of jurisdiction, apply in writing within one month from the date of the said determination, including the day of such date, to the said magistrates’ court to state and sign a special case setting forth the facts and the grounds of such determination for the opinion thereon of the Supreme Court.”

Section 329(2) provides:

“Upon receiving any such application the magistrate shall forthwith draw up the special case and transmit the same to the Chief Registrar of the Supreme Court together with a certified copy of the conviction, order or judgment appealed from and all documents alluded to in the special case and the provisions of section 315 shall thereupon apply.”

Section 338 of the Code provides:

“A case stated by a magistrate shall set out –

(a)	the charge, summons, information or complaint;

(b)	the facts found by the magistrates’ court to be admitted or proved, or where the question or one of the questions on which the opinion of the Supreme Court is sought is whether there was evidence on which the magistrates’ court could come to its decision, a sufficient statement of the evidence;

(c)	any submission of law made by or on behalf of the complainant during the trial or inquiry;

(d)	any submission of law made by or on behalf of the accused during the trial or inquiry;

(e)	the finding and, in the case of conviction, the sentence of the magistrates’ court;

(f)	any question or questions of law which the magistrate or any of the parties may desire to be submitted for the opinion of the Supreme Court;

(g)	any question of law which the Director of Public Prosecutions may require to be submitted for the opinion of the Supreme Court.”

There appears to be no procedure available for a magistrate to refer a matter to the High Court for determination of his or her own motion. This is unfortunate. Referring a question of law to the High Court may be a responsible and sensible option for a magistrate to choose to take. There may be several reasons, possible delay being one of them, why the parties might prefer not to make an application under section 329.

However, the Code has not provided an avenue for such referral without an application being made. Further section 329 pre-supposes that a determination has been made on a summons, charge or complaint. In this case no such determination was made, the learned Magistrate preferring to refer the matter to the High Court before she had made a decision on the application for withdrawal of charges.

In the circumstances I find that I have no jurisdiction to consider this application. If however the Magistrate proceeds to make a decision, the appellate and revisionary jurisdiction of this court may also be available to the parties and the court.

Result

This case stated application cannot be considered because the court below has not been moved by application under section 329 of the Criminal Procedure Code.

The case is remitted to the learned Magistrate to continue with the hearing of the application for withdrawal of charges.

Nazhat Shameem
JUDGE

At Suva
12th November 2003