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State v Chaudhry [2013] FJHC 553; HAM216.2013 (30 September 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION
Criminal Case No. HAM 216 of 2013

BETWEEN:

STATE
Applicant

AND:

MAHENDRA PAL CHAUDHRY
Respondent

BEFORE : HON. MR. JUSTICE PAUL MADIGAN

Counsel : Mr. M. Korovou for State
Mr. A. Singh for the Respondent

Dates of hearing : 30th September, 2013
Date of Ruling : 30th September, 2013

RULING

1. The respondent is charged with three offences under the Exchange Control Act, Chapter 211 and the trial was fixed in October 2012 to be heard from the 23rd to 27th September 2013.
   
2. On the 13th September 2013, the respondent applied to have these trial dates vacated, the reasons being principally that both his counsel and instructing solicitor were unwell. His application succeeded and the question of costs arose, those costs being costs of counsel set to appear for the prosecution at trial.
   
3. An award of costs in a criminal matter is governed by s.150(4) of the Criminal Procedure Decree which provides as follows:
   

"s.150(4) A Judge or Magistrate may make any other order as to cost 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) Penalize 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."

4. The application for costs was strenuously opposed by the respondent at the hearing, he submitting that actual costs had not been sufficiently identified to enable a proper order to be made.
   
5. While the section gives a very wide power to the Court to award costs against a party (Prosecution or Defence), it is only fair to the respondent party that those costs be actual costs and also costs fairly expended in anticipation of trial.
   
6. The respondent argues that airfares which have been purchased for travel which is anything but direct routing are not valid. In this case two prosecutors from Hong Kong had intended to come to Fiji one via Sydney and one via Honolulu when there are 2 twice weekly direct flights between Hong Kong and Nadi. In addition he submits that claims for expenses of hotel rooms not used are unjustifiable.
   
7. Preparation costs for trial, although a valid expense, cannot be claimed unless there is no trial. Presuming that prosecuting counsel will remain the same any preparation for trial will then be of use in the future.
   
8. As the costs claimed cannot be itemized or justified in full, this Court declines to award costs. The application is premature. The presence of prosecuting counsel in Court when the matter is in fact heard may well vitiate some or all of the costs now being claimed.
   
9. Although the application is now refused, if may be revived at the end of trial by showing evidence of actual costs wasted.
   

P.K. Madigan
Judge

At Suva
30 September, 2013