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State v Vulaca [2005] FJHC 22; HAA0142D.2004S (8 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA142 OF 2004S

BETWEEN:

THE STATE
Appellant

AND:

ETUATE VULACA
Respondent

Hearing: 4th February 2005
Ruling: 8th February 2005

Counsel: Mr. B. Solanki for State
Mr. M. Raza for Respondent

RULING ON COSTS

This was an appeal against an acquittal in the Suva Magistrates’ Court on a charge of damaging property. On receipt of the court record on the 15th of December 2004, the parties were told by the High Court that the appeal was listed for hearing on the 4th of February 2005. A notice of hearing was served on the DPP on the 16th of December.

On the 3rd of February, the DPP filed a notice of discontinuance of the appeal. State counsel appeared in court and said that on receipt of the court record, it was decided by the DPP’s Office that there was no merit in the appeal.

He said an advice was given to the DPP to discontinue, on the 2nd of February, and the Notice filed on the 3rd. A copy was not sent to Mr. Raza, for the Respondent and he was only informed of the discontinuance on the morning of the 4th of February.

Mr. Raza now asks for costs, saying that he had been put to inconvenience in appearing personally, and in preparing the appeal. He said that the DPP’s Office should have informed him earlier of their decision. State counsel opposes costs saying that the DPP’s Office had not acted unreasonably. He did apologise in court to Mr. Raza for failing to inform him of the decision to discontinue until the morning of the appeal.

Section 317 of the Criminal Procedure Code provides:

"The High Court may make such order as to the costs to be paid by either party to an appeal as may seem just."

In Josateki Tadu [2001] HAA0071/01S, the High Court held that where the appeal was not an abuse of the process, or an unreasonable exercise of prosecutorial discretion, a costs application should be refused.

In this case I do not consider that the State acted either unreasonably or in abuse of the process. State counsel said that the petition of appeal was filed before the court record was received and on the basis of instructions from the Divisional Prosecuting Officers Office. He said that the appeal was filed then because of the 28 day appeal period. It was only on receipt of the record that the State decided that the appeal had no merit.

I do not consider a 2 month delay, especially over the holiday period, to be unconscionable or unreasonable in the decision to discontinue. Further although Mr. Raza should have been told of the decision as soon as it was made on the 2nd of February, as a matter of courtesy, there was no statutory duty on the Appellant to serve him. Indeed, the High Court Registry had the duty to serve Mr. Raza with the Notice, by virtue of section 318(2) of the Criminal Procedure Code.

A costs order is therefore not appropriate in this case. The Appellant has not behaved unreasonably or in abuse of the process.

The application for costs is refused.

Nazhat Shameem
JUDGE

At Suva
8th February 2005