IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA 013 OF 2012

BETWEEN:

ASHVEEN LATA
[Appellant]

AND:

STATE
[Respondent]

Counsel : Mr Iqbal Khan for the Appellant
Ms S. Puamau for the Respondent

Date of Judgment : 26th October 2012

JUDGMENT

1	This is an application by the Accused Appellant against the order of the Magistrate made in relation to cost.

Background

2	The Accused Appellant above named was charged on 52 counts. (26 counts of fraudulent falsification of accounts and 26 counts of larceny by servant.)

3	The Accused was originally produced on the 23rd December 2008 and bailed out by the Magistrate. This case was taken up at the Magistrates Court on 18 occasions until 3rd October 2011. After preliminary steps on the 15th January 2010 this case was fixed for hearing to 10th & 11th of August 2010. On that day the Accused did not present in court and tendered a medical certificate, that trial was vacated. After mentioning the case for 4 occassions on the 25th February 2011 this was fixed for trial on the 3rd October 2011. This date was requested and accepted by Ms Vokanavanua on behalf of her Senior Mr. Iqbal Khan. (convenient date for the defence Counsel). On the 3rd the Counsel for the Accused move court to vacate the trial.

The order made on that date is the matter in appeal before the court.

4	I reproduce the proceedings dated 3/10/11 for easy reference.

"3/10/11:

Prosecution: ASP Prasad
Accused: Present/Ms Vokanavanua

Ms Vokanavanua informs court that she seek to vacate the hearing date. Informs court that she has written to Prosecution seeking further disclosures but didn't get any reply from the Prosecution. Accordingly she informs court that the defence is not ready to proceed with the hearing.

ASP Prasad objects to the application. Says that all the disclosures relevant to this case has been served on the Accused, says may be they have lost the disclosures.

Four witnesses are present. The Prosecution informs court that other three witnesses are also readily available.

I inquire from the Defence Counsel as to why she needs the additional disclosures.

The Defence Counsel seeks that the matter be stood down to explain as to what the relevancy of the documents they asked for.
Case is stood down.

10.15am

The case is called again. The Defence Counsel does not appear.

I inquire from the Accused.

Accused: The Counsel is appearing in another Court.

I stand down the case for the Accused to bring the Defence Counsel.

Further ASP Prasad informs that the documents they have asked for are totally irrelevant to this case.
Accused is informed to come with the Counsel for the hearing.

11.15am

The Defence Counsel says that they want the Police to record the statement of a person and provide the statement to them.

ASP Prasad

We are not relying on the evidence of the person they speak of. No statement is also recorded from that person.

This is the 3rd date for hearing. The Prosecution vehemently objects for the adjournment.

Having considered the submissions made by both parties, I decide to vacate the hearing as the Defence Counsel is not ready. However, for the inconvenience caused to Court and to the witnesses, I decide to impose cost on the defence.

ASP Prasad

My witnesses are Directors of the Company. They travel very often abroad and they all have come for the hearing. Two of my witnesses will be travelling abroad.

The diary of this Court is full and the Defence Counsel is very well aware as a Junior Counsel who appears in this Court how difficult it is to fix a case for hearing. Having known that the Defence Counsel should have courtesy to inform in advance if the trial could not be proceeded today.

I inquire from the Prosecution how much of cost they are asking.

ASP Prasad

We ask for $1,000.00 cost. This is the second time the Defence is seeking to vacate the hearing date.

Accordingly I order $1,000.00 to be paid to the Prosecution by the Accused.

In default 100 days imprisonment.

Cost to be paid within 28 days."

5	Being aggrieved with the order of the Magistrate the Accused Appellant had preferred an appeal to this Court and submits the following ground:

(a)	THAT the Learned Trial Magistrate erred in law and in fact in ordering $1,000.00 (One Thousand Dollars) costs or 100 days imprisonment against the Appellant;

(b)	THAT the Learned Trial Magistrate erred in law and in fact in taking irrelevant matters into consideration when ordering the Appellant to pay $1,000.00(one Thousand Dollars) costs or 100 days imprisonment;

6	The Appellant made two written submissions and the Respondent State submitted one written submission. Both parties relied on their written submissions and made no oral submissions.

7	The Counsel for the Appellant submits details of a communication between his Chambers and the Prosecuting officer. I do not find these communications was brought to the notice of the Learned Magistrate. I perused the record and find none of these were copied to the Magistrates Court. The Magistrate is unaware of this and allocated two days for the trial in his very busy trial role.

8	I carefully considered the submissions filed by the Counsel for the Appellant dated 17th August 2012 and 15th October 2012. It says that the Magistrate did not exercise his discretion judicially.

9	The State Counsel submits that the issue of disclosure is an issue separate of the issue of an adjournment.

10	Further the State Counsel submits that the application for an adjournment, not being founded on good law, merited the award of costs. The Court agreed that an adjournment was necessary to preserve the accused person's right to a fair trial, not because of the irrelevant disclosure issue but because his Counsel was not ready.

Law

11	Section 150 of the Criminal Procedure Decree deals with awarding of cost.

150. — (1) A judge or magistrate may order any person convicted of an offence or discharged without conviction in accordance with law, to pay to a public or private prosecutor such reasonable costs as the judge or magistrate determines, in addition to any other penalty imposed. 

(2) A judge or magistrate who acquits or discharges a person accused of an offence, may order the prosecutor, whether public or private, to pay to the accused such reasonable costs as the judge or magistrate determines 

(3) An order shall not be made under sub-section (2) unless the judge or magistrate considers that the prosecutor either had no reasonable grounds for bringing the proceedings or has unreasonably prolonged the matter. 

(4) A judge or magistrate may make any other order as to costs as may be required in the circumstances to — 

(a) defray the costs incurred by any party as a result of an adjournment sought by another party; 

(b) recompense any party for any costs arising from any conduct by any other party which delays a trial or requires the expenditure of monies as a result of the conduct of that party during a trial; 

(c) penalise a lawyer for any improper action during a trial, and in such a case the order may be that the lawyer pay the costs personally; and 

(d) otherwise meet the interests of justice in any case. 

(5) The costs awarded under this section may be awarded in addition to any compensation awarded by the court under this Decree or the Sentencing and Penalties Decree 2009. 

(6) Payment of costs by the accused shall be enforceable in the same manner as a fine. 

(7) In this section "private prosecutor" means any prosecutor other than a "public prosecutor. 

(2) The appellate court shall have power to give such costs of the appeal as it determines. 

12	The Appellant submits that the Magistrate did not use his discretion judicially. In Sharp v Wakefield [1891] AC 173, 170, Lord Halsbury held:

"Discretion means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion – according to law and not humour. It is to be, not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit to which an honest man, competent in the discharge of his office, ought to confine himself".

13	The order of the Magistrate is referred in paragraph 4 above. On perusing the proceedings of that day I find the Learned Magistrate had granted sufficient time for the defence to explain their position. At 10.15 the Accused had informed that the Counsel was appearing in another Court. The case was kept down until the Counsel available, at 11.15am the Counsel was present in Court. The Magistrate after hearing both sides and it was the second time the trial was vacated the Magistrate decided to award the cost. The quantum of the cost is not awarded arbitrarily he had inquired from the prosecution of their claim.

14	Considering Section 150 of the Criminal Procedure Decree I do not find any illegality in awarding of the cost against the defence.

15	Considering the quantum of cost, there were 4 witnesses present in Court and it had caused lot of inconvenience to all parties hence I find the quantum is reasonable.

16	Considering all I find there is no merit in the appeal hence I dismiss the appeal.

17	Since this is a 2008 matter the Magistrate is instructed to give priority on fixing the date for trial.

S. Thurairaja
Judge

At Lautoka
26th October 2012

Solicitors: Messrs Iqbal Khan & Associates for the Appellant
The Office of the Director of Public Prosecution for the Respondent