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Kean v Fiji Correction Services Tribunal [2020] FJHC 120; HBJ2.2019 (20 February 2020)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBJ 2 of 2019

IN THE MATTER of an application for judicial review by

GUSTON FREDRERICK KEAN a serving prisoner

presently detained at the Medium Corrections

Centre, Naboro Corrections Complex.

AND

IN THE MATTER of the decision of the FIJI CORRECTION

SERVICES TRIBUNAL, Medium Corrections Centre, on

31^st December, 2018.

BETWEEN

GUSTON FREDRERICK KEAN

APPLICANT

AND

FIJI CORRECTION SERVICES TRIBUNAL

RESPONDENT

Counsel : Applicant in person

Ms. Ali N. with Ms. Chand S. for the Respondent

Date of Hearing : 24^th January, 2020

Date of Ruling : 20^th February, 2020

RULING

[1] The applicant filed this application seeking leave to file an application for judicial review.

[2] The reliefs the applicant intends to seek in an application for judicial review are as follows:

1. An order of certiorari to remove the decision of the respondent made on 31^st December, 2018.
2. A declaration that the Fiji Correction Services Tribunal at Minimum Correction Centre has acted unfairly and/or abused its discretion under the Constitution of Fiji, Corrections Act 2006, Criminal Procedure Act 2009, Illicit Drugs Act 2004 and Human Rights Act.

[3] The applicant was detected having in his possession Marijuana. The applicant’s position is that what he had in his possession was not marijuana but some herbal medicine collected from the garden.

[4] The respondent has averred in their affidavit in response that the applicant was found to be in possession of dried leaves believed to be marijuana and not herbal leaves which were wrapped in an aluminium foil and hidden between the cheeks of his buttocks near the anus.

[5] The issue fir determination is whether the 1^st respondent follow the principles of natural justice at the hearing. Before discussing this issue I will refer to the following decision cited by the respondent in its submissions;

State v Registrar of Trade Unions, ex parte Fiji Public Service Association [1991] FJLawRp 8; [1991] 37 FLR 55 (17 July 1991)

In my judgment the case law establishes that the right to a fair hearing can be limited and that its extent depends on what Tucker LJ. called "the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the special matter that is being dealt with ...." Russell v. Duke of Norfolk [1949] 1 All E.R. 109 at p. 118. In&#160ike v. Bav. Baldwin [1964] A0 at pp. 64-65 Loid Loid said that the test is whis what a reasonable man would regard as fair procedure in particular circumstances. In the much later cas#160;oyd v. McMahon [1987] 1E.R. 1118 at p. 1 p. 1 p. 1161 Lord Bridge said:

"My Lords, 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 requirement 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."

In other words His Lordship was saying that the rules of natural justice are flexible and must depend on the circumstances of particular cases and the functions and responsibilities of the decision-maker.

[6] The respondent tendered the charge sheet served on the applicant at the hearing. According the charge sheet tendered by the respondents the applicant has pleaded guilty to the charge of having possession of marijuana. When he was asked, after explaining the facts, whether the applicant had anything to say he had answered in the negative. From the way the proceedings have been conducted by the respondent I do not see any breach of rules of natural justice. If the applicant did not in fact have marijuana in his possession there was no reason for him to plead guilty. Once the accused pleads guilty, the respondent has no other alternative but to impose the sentence.

[7] Nasamu v Commissioner of Police [2019] FJHC 1120; HBJ01.2019 (29 November 2019)

In Nasamu’s case the Commissioner of Police dismissed him from office on his own plea of guilt. The court held:

The applicant has not denied the allegation that he was involved in an extra marital affair with one Merewalasi Koroi who was married to Dite Leawere. His allegation is that the Tribunal induced him to admit the allegation and told him that it would not affect his employment. If he was not guilty for the act complained of, there was no reason for him to plead guilty relying on the undertaking of the Tribunal, if the Tribunal in fact made such a promise. He would have certainly known that, if he was not in any extra marital relationship as complained, there was no reason to rely on any such undertaking. (emphasis added).

[7] The applicant submits there was no evidence that what was in his possession was in fact marijuana and the respondent failed to obtain a report from an analyst. When the applicant pleaded guilty he did not only admit that he had some leaves in his possession but also those leaves were marijuana. However, the respondent had obtained an analyst report subsequently.

[8] The applicant also submits that he was not represented before the Tribunal. If he needed any representation he should have requested the Tribunal and the Tribunal is not obliged to provide a representative without any request from the accused.

[9] It is to be noted that the respondent Tribunal is not a court of law and the proceedings before the tribunal are not governed by the Magistrate’s Court Act or Rules.

[10] The Corrections officers have brought this matter to the notice of the Police and the police have sought permission from the prison to interview the applicant. Failure Police to institute proceedings in a court of law does not invalidate the proceedings before the respondent Tribunal.

[11] For the foregoing reasons the court is of the view the application of the applicant is frivolous and I do not see any violation of the rules of natural justice.

ORDERS

1. The applicant’s application for leave to apply for judicial review is refused.
2. There will be no order for costs.
   

Lyone Seneviratne

JUDGE

20^th February, 2020