IN THE HIGH COURT OF FIJI
AT SUVA
[APPELLATE JURISDICTION]

CRIMINAL APPEAL NO. 009 OF 2020

MANOHAR ISWAR LAL

V

NAUSORI TOWN COUNCIL

Counsel: Mr K Singh for the Appellant
 Ms L Racule for the Respondent

Date of Hearing: 6 November 2020
Date of Judgment: 15 February 2021

JUDGMENT 

[1] 	On 26 August 2019, the Nausori Town Council issued a Fixed Penalty Notice to the appellant charging him with a litter offence contrary to section 10(1) of the Litter Act 2008.  The particulars of the offence alleged that the appellant on 26 August 2019 deposited or abandoned old construction materials on a car park used by the public.   The Notice stated that the fixed penalty was $40.00, to be paid within 30 days from the date the notice was served on the appellant. The Notice also stated that if the appellant denied the charge or failed to pay the fixed penalty of $40.00, he was required to appear in the Nausori Magistrates’ Court on 11 September 2019 to answer the charge.

[2]	Before the period to pay the fixed penalty expired, the case was called in the Nausori Magistrates’ Court on 11 September 2019 and adjourned to 25 October 2019 for mention.  On 25 October 2019, the case was adjourned to 3 December 2019 for formal proof. The appellant did not appear in court on these dates.
[3]	On 3 December 2019, the learned magistrate conducted a formal proof hearing in absentia, and adjourned the case to 31 January 2020 for judgment and sentence.  

[4]	On 31 January 2020, the learned magistrate in a written judgment convicted the appellant and imposed a fine of $2032.70.  On the day of judgment, the appellant made his first appearance in court through his counsel. 

[5]	The appeal is timely. The grounds of appeal are as follows:

•	The Learned Magistrate erred in law and fact when he concluded that the Appellant caused the litter on 26th August 2019.
•	The Learned Magistrate erred in law and in fact when he concluded that the Commercial Property in which the Appellant being accused to have caused a litter fell within the meaning of Public Place contrary to Litter Promulgation 2008 Section 2.
•	The Learned Magistrate erred in law and in fact when he concluded that the Appellant was a 2nd Offender without sighting any documentary evidence or any conviction record.
•	The Learned Magistrate erred in law and in fact when he proceeded to hearing on defective Affidavit of Service. 
•	The Learned Magistrate erred in fact when he relied on inconsistent statements.
•	The Learned Magistrate erred in law and in fact proceeded to formal proof without confirming service of the Litter Notice on the Appellant. 
•	The Learned Magistrate erred in law when he concluded that the Appellant was guilty under section 22 of the Litter Promulgation of 2008.
•	The Learned Magistrate erred in law when during hearing the Court addressed question to the Prosecutor and accepted evidence from the prosecutor rather that the Witness.
Identification 
[6]	The Fixed Penalty Notice named the appellant as the offender.  But the affidavit of service stated that the notice was served on “Director” at NG Patel. The affidavit of service was sworn by an employee of Nausori Town Council. 

[7]	At the formal proof hearing, one Mr Prasad was called to give evidence for the prosecution. Although he did not expressly state his occupation, he was employed as the Litter Prevention Officer by the Nausori Town Council.  His evidence was that on 26 August 2019 he was carrying an inspection of the town area when he found old roofing materials at a place used by the public.  He said that he went to a shop and requested the Accused to remove the items. He tendered a photograph of the alleged litter with the caption “Old Tins and Metals placed on the public Carpark at Hemron Plaza within town area’’.

[8]	In his judgment, the learned magistrate found that the appellant was served with the ‘litter offence notice’ and was liable for the alleged offence. However, there is nothing in the court records to suggest that the prosecution witness was shown the Fixed Penalty Notice that was issued to the appellant. The evidence that was led by the prosecution to establish the identity of the person who was responsible for the alleged litter was vague. The witness in his evidence referred to the offender as ‘him’ or a ‘company owner’. 

[9]	There was no evidence led by the prosecution that the Accused was Manohar Iswar Lal and that he was a director of a company called NG Patel upon whom the Notice was served. The learned magistrate’s findings that the appellant was served with the Fixed Penalty Notice and was responsible for the alleged litter offence are erroneous. 

Public Place
[10]	One of the essential ingredients of the offence under section 10(1) of the Litter Act is that the litter was deposited or abandoned at a public place. The appellant’s contention is that the place the litter was deposited or abandoned was not a public place.

[11]	To prove the charge the prosecution relied upon the definition of a public place provided by section 2(h) of the Litter Act. Section 2(h) reads:

	"public place" includes –
(h) any other place in the open air to which the public has access as of right without payment of any fee - but does not include any site for the disposal of litter, or any receptacle installed in any public place pursuant to this Act or any other written law;

[12]	For a place to fall under the definition of a public place, the public must have access to the place ‘as of right without payment of any fee’. The charge alleged that the litter was deposited on a car park on a commercial property used by the public. The appellant’s contention is that a commercial property is excluded from the definition of a public place. 

[13]	A commercial property is not explicitly excluded from the definition of a public place. But if a place is not accessible to the public without payment of any fee that place is not a public place. 

[14]	At the hearing, the prosecution witness in his evidence made a reference to a place used by the public. There was no evidence that the place was a commercial property.  However, whether the place was a commercial property was immaterial. The real question was whether the place was accessible as of right without payment of a fee by the public. 

[15]	The prosecution case was that the car park was accessible to the public as of right without payment of a fee even though it was located on a commercial property. There was no evidence to contradict or suggest otherwise.  Therefore, there is no error in holding the alleged place of litter was a public place. 

Previous conviction
[16]	At the hearing, the prosecutor disclosed to the court that the appellant was previously convicted for a similar offence after intervention by the learned magistrate. The intervention by the learned magistrate and the disclosure of the appellant’s previous conviction by the prosecutor during the hearing was prejudicial to the appellant. The learned magistrate had not determined guilt of the appellant. The previous conviction had no probative value. The learned magistrate referred to the appellant’s previous conviction in his judgment to make a finding of guilt. The learned magistrate said:

You are a 2nd offender under Litter Promulgation of 2008 is concerned.
Judicial Findings
On the foregoing reasons in this judgment, I make the ruling that, the Accused is guilty of the offence of abandoning deposit of dangerous litter…..

[17]	It is clear that the learned magistrate based his finding of guilt on the appellant’s previous bad character. That finding is erroneous. 

Service of Fixed Penalty Notice
[18]	Grounds four and six were argued together. There are two issues presented under these grounds. The first is that there was no proof led that the appellant was the director of the company upon whom the Fixed Penalty Notice was served. This issue has been resolved in favour of the appellant under the first ground of appeal. 

[19]	The second issue is whether the affidavit of service of the Fixed Penalty Notice can be witnessed by a Justice of Peace.  In the present case the affidavit of service was witnessed by a Justice of Peace.  There is no prohibition placed on the Justices of Peace to witness affidavits of service of Fixed Penalty Notices in the Magistrates’ Court. The affidavit of service therefore was not defective as claimed by counsel for the appellant. 

Inconsistency in the facts
[20]	During the hearing, the learned magistrate posed the following question to the prosecution witness that was inconsistent with the particulars of the offence:

Court: So this old roofing iron and some steel was all lying on the street
Prosecution: Yes Sir

[21]	It is clear that both the learned magistrate and the prosecutor were confused about the place where the litter was abandoned. The charge alleged that the litter was abandoned on a car park located on a commercial property. There was no evidence that the litter was abandoned on a street. Therefore the suggestion by the learned magistrate and the prosecutor that the litter was abandoned on a street was erroneous.

Power to institute proceeding using Fixed Penalty Notice
[22]	Section 22 of the Litter Act sets out the power to institute proceedings by issuing a Fixed Penalty Notice to an offender in respect to specified offences only. Section 22 (1) states:

Notwithstanding the requirements of the Criminal Procedure Code, but subject to the succeeding provisions of this section, it shall be lawful for an officer to institute proceedings in respect of the alleged commission of an offence against sections 7(1)(b), 8(5), 10(2), 11, 12(1) and 12(2) by serving personally upon the person alleged by him to have committed the offence a fixed penalty notice.

[23]	Further, section 22 (6) states:

For the purpose of this section the fixed penalty shall be -
(a) For an offence against section 7(l)(b) - $40;
(b) For an offence against section 8(5) - $40;
(c) For an offence against section 10(2) - $40;
(d) For an offence against section 11 - $40;
(e) For an offence against section 12(1) - $40.
(f) For an offence against section 12(2) - $40.

[24]	The appellant was charged with an offence contrary to section 10(1) of the Litter Act. Section 10(1) states: 

A person or corporate body or any other organization who, both directly or indirectly deposits and abandons any dangerous litter in or on any public place commits an offence.

[25]	The penalty for the offence is as follows:

10(1) Abandoning dangerous litter 	For first offence $2000 or imprisonment for a terms not exceeding 6 months for individual and $4000 for body corporate.
For second or subsequent offence: $4000 for imprisonment for a term not exceeding 12 months for individual $10,000 for corporate body

[26]	It is clear that there is no power to institute proceedings for an offence of abandoning dangerous litter contrary to section 10(1) with a Fixed Penalty Notice. The proceedings for an offence of abandoning dangerous litter can only be commenced under the provisions of the Criminal Procedure Act. Therefore the institution of proceedings using a Fixed Penalty Notice in this case was unlawful. 

Evidence from the bar table
[27]	The proceedings that the learned magistrate conducted was inquisitorial in nature. The learned magistrate was actively involved in examination of the prosecution witness.  As a result of interventions by the learned magistrate during the hearing, the prosecutor gave prejudicial evidence from the bar table, which the learned magistrate relied upon to determine the appellant’s guilt. The irregularities in the proceedings lead me to conclude that the appellant was not tried and convicted according to law.

Result
[28]	The appeal is allowed.

[29]	The appellant’s conviction and sentence are set aside. Fine if paid must be returned to the appellant forthwith.   

. …………………………………….
Hon. Mr Justice Daniel Goundar

Solicitors:
Kunal Singh Lawyers for the Appellant
Legal Officer – Nausori Town Council for the Respondent