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Sen v State [2011] FJHC 591; HAA017.2011 (23 September 2011)

IN THE HIGH COURT OF FIJI
AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 017 OF 2011

BETWEEN:

AMRIT SEN
Appellant

AND:

STATE
Respondent

Mr W. Pillay for the State
Appellant in Person

Date of Hearing: 19th September, 2011
Date of Judgment: 23rd September, 2011

JUDGMENT

[1] The appellant is a barrister and solicitor with a busy practice in Labasa town.

[2] On the 20th December 2010 at the Magistrates Court in Savusavu, costs of $100 were awarded against him by the Resident Magistrate when he did not appear for a case involving one of his clients.

[3] The case was called for "mention" but for some inexplicable reason the police Prosecutor had brought four witnesses from Taveuni to Court. The Magistrate made the order for costs on the basis that it was to defray the costs incurred. Such power is available to the Magistrate under section 150(4)(a) of the Criminal Procedure Decree 2009.

[4] At the time Mr Sen was involved with proceedings in the High Court which had unfortunately run over and he was not able to absent himself from the High Court in order to appear in Savusavu or a case which had been listed to be a "mention". Conscious of his duty to the lower Court he wrote an urgent letter to the Registry at Savusavu which he faxed to them at 8.30am that day. The Magistrate obviously was aware of the fax because the Court Record shows that the Magistrate referred to the letter which asked for an adjournment.

[5] Mr Sen devoted much of his oral submission before me on the power of a Magistrate to award costs for improper conduct of counsel, which was not to the point. Improper conduct of counsel is provided for in Section 150(4)(b)of the Criminal Procedure Code, but it was clearly not on this basis that the Magistrate awarded the costs. In fact even if it were it would not be applicable because section 150(4)(b) specifically states the improper conduct must be in the course of a trial, yet this matter in Savusavu was a pretrial hearing.

[6] In his clear and precise oral submissions before me, Mr Pillay for the State pointed out that the calling of the case on December 20 was specifically to fix a date for trial and that being so, there was no need for the Prosecutor to have brought his witnesses along to Court. As a result Mr Pillay very fairly concedes the appeal against awarding of costs, given that Mr Sen was in no way responsible for the witnesses having been brought to Savusavu from Taveuni.

[7] That concession must indeed be correct. Although the Court was inconvenienced, the High Court does in practice have precedence over the Magistrates Court as Mr Sen points out. His excuse for not attending was a good one and he did alert the Court below to his inability to attend at the very start of the business day.

[8] The learned Magistrate does not appear to have been cognizant of the fact that that matter was not set for trial and therefore there was no need for the witnesses to have been brought to Court. His award of costs to defray the expense is therefore unwarranted and unreasonable.

[9] The order for costs against Mr Sen is quashed.

Paul K. Madigan
JUDGE

At Labasa
23 September 2011