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Nata v The State [2004] FJHC 181; HAM0040J.2003S (5 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO: HAM0040 OF 2003S

Between:

JOSEFA NATA
Applicant

And:

THE STATE
Respondent

Hearing: 27th February 2004
Judgment: 5th March 2004

Applicant in Person
Mr. S. Sharma for Attorney-General
Mr. P. Ridgeway for Director of Public Prosecutions

JUDGMENT

The Applicant has made an application for constitutional redress in respect of matters arising from the prosecution and conduct of his trial in the High Court on the charge of treason. Counsel for the Attorney-General now applies to have the application struck out on the ground that the Applicant has alternative remedies and that the application is an abuse of the process of the court. Counsel for the Director of Public Prosecutions appeared to assist the court. This is my judgment on the State’s striking-out application. Although the State is the Applicant in respect of this application, I have referred to Mr. Nata as the Applicant to avoid confusion.

The Applicant made his application under section 41 of the Constitution, on the 22nd of September 2003. Because he is a prisoner at the Naboro Maximum Security Prison, I accepted his letter as an application, and indicated my willingness to waive the 30-day time limit under the Constitutional Redress Rules.

The letter sets out the following grounds:

1. That he was assaulted on board the HMS Kiro and that he was subject to torture and degrading treatment.
   
2. That he did not have a fair trial because the judiciary with the DPP and the Australian Government were determined to bring the Applicant to justice.
   
3. That the Director of Public Prosecutions was a commissioned officer of the army and had been subjected to political directions in the conduct of the prosecution.
   
4. That the Applicant’s co-defendants were permitted to plead guilty to lesser charges and that therefore the Applicant was unfairly discriminated against.
   
5. That the Applicant’s sentence was unfair because he is not entitled to entitlements under the Prisons Act.
   

The Applicant was given time to instruct legal aid counsel but the Legal Aid Commission refused his application for legal aid. The Attorney-General filed this application on the 12th of January 2004. It was heard on the 23rd of January 2004. On that day I heard submissions from counsel for the Attorney-General. She said that the principles relevant to the application were those under Order 18, Rule 18 of the High Court Rules. She said that all the matters raised by the Applicant would be raised in the Fiji Court of Appeal. She agreed that the question of the alleged assault on the HMS Kiro could not be heard before the Court of Appeal but that the three year delay was sufficient to show that the application was frivolous and vexatious and an abuse of the process. I asked for further submissions on the reviewability of the DPP’s decision to accept a plea to lesser charges, and gave the Applicant time to respond to them.

In her further written submissions, counsel for the Attorney-General said although the DPP’s decisions were reviewable under section 194(10) of the Constitution, such review should only be conducted by the courts in the most exceptional of circumstances and where there was an arguable case to show that the DPP was guilty of a “flagrant impropriety.” This was clearly not such a case, and the Applicant’s application should be struck out.

The Applicant responded on the 27th of February 2004, after I gave him time to prepare. Despite the lack of legal representation, his response was articulate and well-researched. He said that he no longer wished to proceed with his complaint about army assault on the HMS Kiro because he had decided to forgive those involved. He further agreed that his allegations of a biased court during his trial, was a matter he would be raising in the Court of Appeal and that therefore, those allegations were best left for that forum. He did however wish to proceed with his allegations against the DPP. He said that this was not a matter he could raise on appeal because he had never objected to the “plea-bargain” during the trial, that in refusing to accept his plea to a lesser offence the DPP was unfairly discriminating against him in breach of section 38 of the Constitution, that the DPP was influenced by extraneous matters in making that decision and had been acting under the instructions of the interim administration, and that as a result he was prejudiced during the trial. He said that he was able to show that the DPP had acted with “flagrant impropriety” and that his application should be heard. He relied on a number of events during the hearing of the treason trial to show that the DPP had been partly to blame for the delays in the trial and said that I would need the court record to ascertain what had occurred in the Magistrates’ Court and High Court during the conduct of the case.

Counsel for the Attorney said in response that the Applicant had failed to show an arguable case of flagrant impropriety, that he had failed to articulate any prohibited ground of discrimination, that he never complained about the DPP’s conduct during the trial, that he could nevertheless raise the issue of the charge before the Court of Appeal, that the Applicant had failed to show that his circumstances were exactly the same as his co-defendants thus warranting uniform treatment and that he had failed to articulate the remedies he sought.

Counsel for the DPP also made submissions. He said that the Applicant had made scurrilous accusations against the DPP without offering any proof of them, that the Applicant was barred from pursuing a remedy for malicious prosecution because his conviction still stood (Guiseppe Emanuele & Others v. Anthony Robert Hedley and Others S.C. of the ACT (1997) ACTSC 13.) Counsel said that the Applicant appeared to believe that he had a right to determine what charges he should face. Finally he said that the Applicant had not exhausted his alternative remedies, that his appeal was still pending and that if his appeal succeeded it was open to him to bring an action for malicious prosecution.

The nature of this application

It is clear on a perusal of the Applicant’s petition of appeal, that the question of the fairness of the trial and of alleged bias, will be raised before the Court of Appeal. It would be quite inappropriate for the High Court, in its Constitutional jurisdiction to make any finding on those matters already before the Court of Appeal. The Applicant agrees.

Further, he has now withdrawn his allegation of cruel and inhuman treatment on arrest in the interests of reconciliation. He does however wish to proceed with his application in respect of the DPP’s decision to proceed on a charge of treason against him. He is unable to articulate the alleged ground of discrimination. Nor has he articulated any remedies he requires, although in the circumstances of the case, the only viable remedy would be a declaration.

Unfair discrimination

The application is that the Applicant’s letter to the court raises no reasonable cause of action, and is frivolous and vexatious. Does his application raise a possible case of unfair discrimination in the conduct of the prosecution?

Section 38(1) and (2) of the Constitution provide:

“(1) Every person has the right to equality before the law.

(2) A person must not be unfairly discriminated against, directly or indirectly on the ground of his or her:

(a) actual or supposed personal characteristics or circumstances, including race, ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age or disability; or

(b) opinions or beliefs, except to the extent that those opinions or beliefs involve harm to others or the diminution of the rights and freedoms of others;

or on any other ground prohibited by this Constitution.”

Section 41 of the Constitution provides:

“(1) If a person considers that any of the provisions of this Chapter has been or is likely to be contravened in relation to him or her (or, in the case of a person who is detained, if another person considers that there has been, or is likely to be, a contravention in relation to the detained person) then that person (or the other person) may apply to the High Court for redress.”

Subsection (2) provides:

“The right to make application to the High Court under subsection (1) is without prejudice to any other action with respect to the matter that the person concerned may have.”

And subsection (4) provides:

“The High Court may exercise its discretion not to grant relief in relation to the application or referral made to it under this section if it considers that an adequate alternative remedy is available to the person concerned.”

In considering whether or not to exercise the section 41(4) discretion, a court ought to take into account the ability of the Applicant to pursue other remedies. Relevant considerations might be financial constraints, and the custody and conditions of custody the Applicant might be held in. The Constitution clearly does not intend to shut the doors of Constitutional redress on the indigent and disadvantaged, especially when the alternative remedy is more expensive and less accessible than the Constitutional Redress jurisdiction.

The Applicant purports to review through the Constitutional redress procedure, the discretion of the DPP to charge him with treason. Section 194(10) of the Constitution provides:

“A provision of this Constitution to the effect that a person or authority is not subject to the direction or control of any other person or authority in the performance of functions or the exercise of powers is not to be construed as precluding a court of law from exercising jurisdiction in relation to a question whether the first mentioned person or authority has performed the functions or exercised the powers in accordance with this Constitution or whether that person or authority should or should not perform the functions or exercise the powers.”

This provision was considered by the Court of Appeal and the Supreme Court in Director of Public Prosecutions v. Livai Lila Matalulu & Anor. Civil Appeal No. ABU0045 of 1998. In that case the Court considered whether the nolle prosequi was subject to judicial review. The Court of Appeal distinguished the Australian High Court decision in Maxwell v. R [1996] HCA 46; (1966) 70 ALJR 324 which decided that the nolle posequi was not reviewable because the courts needed to keep out of the prosecution process. The Fiji Court of Appeal held that Maxwell could not apply in Fiji, because of the clear terms of section 194(10) of the Constitution, but said that in attempting to apply for review of a prosecutorial decision, the Applicant should show “an ‘arguable case’ for ‘flagrant impropriety’ on the part of the DPP – a handy description of the rare occasions when the DPP’s decision is reviewable.”

The Supreme Court in the same case (CBV0002.1999S) upheld this finding, although it preferred to refer to established principles of judicial review to the question. At page 28 the Court said:

“It is sufficient, in our opinion, in cases involving the exercise of prosecutorial discretion to apply established principles of judicial review. These would have proper regard to the great width of the DPP’s discretion and the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits. This approach subsumes concerns about separation of powers.”

And on the same page:

“It may be accepted, however, that a purported exercise of power would be reviewable if it were made:

1. In excess of the DPP’s constitutional or statutory grants of power – such as an attempt to institute proceedings in a court established by a disciplinary law (see s.96(4)(a)).
   
2. When, contrary to the provisions of the Constitution, the DPP could be shown to have acted under the direction or control of another person or authority and to have failed to exercise his or her own independent discretion – if the DPP were to act on a political instruction the decision could be amenable to review.
   
3. In bad faith, for example dishonesty. An example would arise if a prosecution were commenced or discontinued in consideration of the payment of a bribe.
   
4. In abuse of the process of the court in which it was instituted, although the proper forum for review of that action would ordinarily be the court involved.
   
5. Where the DPP has fettered his or her discretion by a rigid policy-leg one that precludes prosecution of a specific chain of offences.”
   

The Supreme Court also observed that where the DPP chose to prosecute a person on a mistaken view of the law, the best remedy was to challenge the charge or information in the court in which such charge or information was filed.

Although Matalulu was an appeal from a leave application ruling in a judicial review matter, I do not consider that this threshold of review should be any different when an applicant decides instead to use the Constitutional Redress procedure. The same policy issues apply. Firstly the courts should be extremely reluctant to venture forth into the area of prosecution. There is a danger that the separation of powers between the judiciary and the prosecutor could be eroded, thus undermining the independence of the judiciary. A judge should not assess whether or not a person should be prosecuted, and then proceed to try that person. Secondly, the DPP’s Office, created as it is by the Constitution is an independent office, and the DPP should be free to make decisions, even value judgments on his or her assessment of the public interest (Raymond v. Attorney-General (1982) 2 ALL ER 487, Kostuch v. Attorney-General for Alberla (1995) 128 DLR (4th) 440).

Lastly, the ultimate check on the decision to prosecute and to lay charges, is the trial court. If the DPP charges an accused person on the basis of insufficient evidence or where the accused was not for instance, morally blameworthy, the courts can provide the ultimate safeguard for the accused in the acquittal or the discharge without conviction.

In this case therefore the Applicant must show that he is able to at least present an argument on the basis of evidence that the DPP, in prosecuting him for the offence of treason, acted improperly or dishonestly or in bad faith. Further, because this is an application for Constitutional Redress, the Applicant must show that the impropriety he alleges, involves a breach of at least one of the fundamental rights and freedoms under the Bill of Rights.

He has not been able to show any grounds to suggest a breach of any of the provisions of the Bill of Rights. Although he said he had been unfairly discriminated against on the basis of his personal circumstances, he did not say what they were. He and all his co-defendants were of the same ethnic group and gender. He was not suggesting that this was a case, for instance of unfair racial discrimination.

Further, if the DPP had decided to differentiate between one accused and another in accepting pleas to a lesser charge, what evidence is there that this was done on the basis of an improper and irrelevant ground? No two accused can ever be identically treated, even when jointly charged. There may be different shades of culpability, different roles played even by principal offenders. To request redress in this case on the basis that the DPP may have been driven by some extraneous motive in treating accused persons differently is speculative. The Applicant was asked to answer the question I posed to him –“Why do you say the DPP discriminated against you and not against your fellow defendants?” He was unable to do so. Instead he made statements (without any evidence) of the DPP’s alleged links with the Government and the military. He was unable to link these allegations to any specific ground of unfair discrimination. To differentiate between accused persons on the basis of evidential sufficiency and the public interest, is not unfair discrimination. A decision to prosecute can only be susceptible to review under the section 41 procedure if the DPP bases that decision on race, gender, sexual orientation, disability, age, colour, economic status, birth, primary education, personal circumstances, place of origin or opinions or beliefs and does so by way of unfair discrimination. Further, the DPP may be in breach of section 38(1) of the Constitution if, on dealing with two accused with identical circumstances of offending, he were to treat them unequally before the law.

The Applicant has been unable to show grounds in respect of any of these matters. Further, his application, when articulated in court, resembles closely a suit in malicious prosecution. However such a writ is not available to a convicted person, at least until his conviction has been set aside (Martin v. Watson (1995) 3 WLR 318). To allow the Applicant to make this application by the back door, as it were, would undermine the law and procedures relevant to malicious prosecution.

Finally, the “plea-bargain” the Applicant refers to, occurred in the course of proceedings which are now subject to appeal. He informed me that the reason he made no issue of it during preliminary proceedings and trial was because he was represented by inadequate counsel. This is a matter which is obviously going to be raised in the Court of Appeal, and if the alleged improper plea-bargain is discussed in the Court of Appeal, that court can, if it wishes, make any comments or orders it thinks fit. Certainly an appellate court can consider matters on appeal even if they were not raised in the court below.

Conclusion

In response to the State’s application to strike out, the Applicant for Redress has not established a reasonable cause of action. He has failed to show any ground for unfair discrimination. Nor has he shown even an argument to support his allegation of the impropriety of the DPP’s decision to prosecute him for treason. Indeed the conviction entered against him militates against such argument. Finally I find that he has an alternative remedy either in the appellate jurisdiction of the Court of Appeal, or in the tort of malicious prosecution if his appeal succeeds.

For these reasons, this application is wholly struck out. No costs are awarded because the Applicant is a prisoner in custody and unrepresented by counsel.

Nazhat Shameem
JUDGE

At Suva
5th March 2004