IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Case No : HAA 014 of 2008

BETWEEN:

THE STATE
Appellant

AND:

BHALLU KHAN
Respondent

Counsel: Mr. A. Rayawa for the State
Mr. G. Leung & Mr. S. Leweniqila for the Respondent

Date of Hearing: Friday 1st February, 2008
Date of Judgment: Friday 29th February, 2008

JUDGMENT

Background

[1]	This is an appeal from an order of the Magistrates’ Court at Suva granting respondent’s application for release of properties, namely, vehicles, a portable DVD, a conventional camera and a video camera. There was no evidence adduced in the Magistrates’ Court regarding the circumstances surrounding the seizure of these properties by the State. The respondent is facing three counts of conspiracy to murder and the matter is now before this Court. 

[2]	The appellant contends that the order was made without jurisdiction and in breach of the State’s right to natural justice.

[3]	The respondent contends that the learned Magistrate had the jurisdiction to make the order and the order was made in compliance with the rules of natural justice. 

Jurisdiction

[4]	It is unclear from the record under what authority the order for release of property was made but, by all indications, it is safe to assume the learned Magistrate acted under section 164(1)(c) of the Criminal Procedure Code. Section 164(1)(c) states:

The restoration or awarding of any possession of any such property or thing to the person appearing to the court to be entitled to possession thereof, without prejudice however to any civil proceedings which may be taken with respect thereto;…

[5]	Counsel for the State submits that learned Magistrate should have refused to entertain the application for release of property because it was made after the State had applied to have the case transferred to the High Court for trial. The application for transfer was made pursuant to section 220 of the Criminal Procedure Code. 

[6]	Section 220 provides:

If before or during the course of a trial before a magistrates’ court it appears to the magistrate that the case is one which ought to be tried by the High Court or if before the calling of evidence at trial an application in that behalf is made by a public prosecutor that it shall be so tried, the magistrate shall not proceed with the trial but shall transfer the case to the High Court under Part VII.

[7]	The State argues that once an application is made by the prosecution to transfer a case to the High Court, the Magistrates lack jurisdiction to hear the case any further. 

[8]	I accept that once the prosecution makes an application to have the case transferred to the High Court, the Magistrate should not proceed to hear the trial (emphasis added). The purpose of section 220 is to bestow the State with the right to elect the High Court as the venue for a trial. For instance, if an accused elects to be tried in the Magistrates’ Court, the prosecution can override that election by making an application pursuant to section 220. 

[9]	However, the Magistrate will always have some ancillary matters to deal with in the case in which an application is made for a transfer to the High Court by the prosecution. For example, there may be matters in relation to bail, disclosure of evidence, suppression of name, etc, arising after a transfer application by the prosecution. In these circumstances, to hold the Magistrate functus officio immediately after making of an application pursuant to section 220 by the prosecution will lead to absurd results. The learned Magistrate will not be able hear any ancillary matters associated with the case, and thereby defeating the rights of an accused to be heard.

[10]	In my view, the Magistrate had jurisdiction to hear the respondent’s application for release of property. It is only the trial that the Magistrate could not hear. 

[11]	For these reason, the appeal fails on the issue of jurisdiction. 

Denial of natural justice

[12]	The concept of natural justice is universally recognized. The concept encompasses the notion of fairness by decision-making body, which decision affects the rights of individuals. Lord Bridge in Lloyd v McMahon (1987) AC 625 at page 702 said:

"The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates."

[13]	In R v Commission of Racial Equality ex parte Cottrell and Rothon (1980) 3 AER 265, Lord Lane at page 271 said:

"Indeed, all that the rules of natural justice mean is that the applicant should be treated fairly. Accordingly, before assessing the fairness of the manner in which the decision complained of was taken…, it is necessary to analyze the context in which it was made and the nature of the decision."

[14]	The State submits the learned Magistrate did not afford them an ample opportunity to respond to the respondent’s application for release of property. If such opportunity was afforded, the State would have adduced evidence to persuade the court not to release the properties. 

[15]	The State is entitled to natural justice as any other litigant. In Michael Anthony Lewis (1988) 34 A Crim. R 212, the High Court of Australia at page 216 said:

"Once it be conceded, as in our view it must be, that the Crown counsel was denied an opportunity to make a general summation of the evidence with a view to demonstrating that notwithstanding the submissions advanced for the respondent the verdict was neither safe nor satisfactory, then it must follow that the proceedings were marked by a serious irregularity in procedure whereby the Crown was denied natural justice. The Crown is as much entitled to natural justice as any other litigant."

[16]	The principles in Lewis were adopted by Shameem J in State v Tanidrala & Ors Criminal Misc. Case No HAM 042 of 2005S & Crim App No. HAA 096 of 2005. In Tanidrala, Shameem J quashed a decision of the Magistrates’ Court to grant bail without hearing from the State.

[17]	The manner in which the application for release of property was made is a matter that concerns this Court. Counsel for the respondent was seeking clarification on certain bail conditions when the application for release of property was added in.

[18]	The State responded that the application should be made by way of a motion and affidavit in support. Counsel for the respondent replied that there was no such requirement under the Criminal Procedure Code. 

[19]	The learned Magistrate then proceeded to deliver his ruling. In his ruling the learned Magistrate said:

"I am NOT calling any evidence. No witness is here to do that."

[20]	After directing himself that no evidence was adduced in support of the application for release of property, the learned Magistrate made the following finding:

"Since the confiscation of the vehicles and other items were unlawful…"

[21]	How the learned Magistrate came to the finding that the seizure of the properties in this case was unlawful when there was no evidence tendered in support of the application is anyone’s guess. In my view, the learned Magistrate’s finding of fact is clearly erroneous. The learned Magistrate could have avoided the error by insisting that the application be made by way of a motion and affidavit. The State would have had an opportunity to reply to the respondent’s evidence. The Court could have then ruled on the application based on evidence. Regrettably, the learned Magistrate made a finding of fact without hearing any evidence. 

[22]	For these reasons, the order for release of property cannot stand. The State was entitled to an opportunity to adduce evidence to oppose the application. They were not afforded that opportunity, which resulted in procedural unfairness to the State and an erroneous finding of fact against the State.

[23]	The appeal succeeds on this ground.

Result

[24]	The appeal is allowed. The order for release of property is quashed. 

Daniel Goundar
JUDGE

At Suva
Friday 29th February, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
Howards Lawyers, Suva for the Accused