“The guilty shall be convicted and the innocent shall be acquitted”, declared Fiji’s Director of Public Prosecutions, Christopher Pryde, in a recent address to the Fiji New Zealand Business Council. Stating the bleeding obvious – you’d imagine – except when doubts continue to be expressed about the independence and impartiality of the country’s judiciary. And especially when the most high profile case in many years is due to commence in Suva next week – the corruption trial of deposed prime minister Laisenia Qarase.
The regime’s opponents continually trumpet the notion that none of their number can get a fair trial in Fiji. Even those with no interest in politics suspect an overzealous pursuit of some regime critics, such as the celebrated “fish’n’chips” shop licence case mounted against celebrity couple Imrana Jalal and Sakiusa Tuisolia. Was Motibhai chief and Fiji Times owner, Mahendra Patel, unfairly targeted over the Post Office clock affair? Can Bread Shop queen Mere Samisoni get a fair trial over the alleged conspiracy to burn down Suva? Can union boss Daniel Urai get impartial treatment from the courts for the charges he’s facing of urging political violence against the regime? It’s a Suva dinner party staple and an issue capable of arousing strong emotions. Because with our British legal heritage, the independence of the judiciary from government and the right of every citizen to a fair trail is justly regarded as an inalienable right.
Next week, the system faces arguably its biggest test with the trial of Laisenia Qarase. Because no matter how well the case is run, no matter how transparent the process and whether Qarase is convicted on the evidence or acquitted, there will always be questions about whether the charges should have been laid in the first place. Even in some sections of government, there are concerns about how the trial will be perceived, based on the fact that Qarase evidently plans to contest the 2014 election as leader of the SDL. If he’s convicted, that won’t happen because – under the law – he’ll be barred from standing for public office for 10 years. So no matter what the outcome, it’s almost inevitable that the regime’s critics and sections of the international community will cry “stitch-up”. Indeed, there have evidently been diplomatic representations to drop the case altogether in the interests of not undermining the legitimacy of the 2014 poll. These diplomats apparently don’t see the irony of mounting such an argument when it’s clearly a case of putting politics above the law. But consistency hasn’t always been the strong point of Fiji’s critics and – as it is – justice will take its course.
The Qarase prosecution is being brought by FICAC – the Fiji Independent Commission Against Corruption – so Christopher Pryde, as DPP, isn’t in the driver’s seat. But he’s mounted a spirited defence of the system as the law officer who would normally decide whether enough evidence exists to mount any successful prosecution. In his speech to the Fiji NZ Business Council conference in Nadi, Pryde insisted that every decision he makes “ is completely independent of any direction from any person…including the Attorney General as chief legal advisor to Government”. In other words, he doesn’t take his orders – as some critics allege – from Aiyaz Sayed Khaiyum. “The decision to prosecute is made on objective criteria in the public interest and involves a two step process. First, is the evidence sufficient to sustain the charge; in other words, is there a reasonable prospect of a conviction? Second, is it in the public interest to prosecute?”, he said. Pryde also pointed out that it’s within his sole power to decide whether to discontinue a prosecution at any time.
The former New Zealand solicitor is a genial presence in Suva and few who come into contact with him will realise the sacrifices he’s made to assume his roles in Fiji – first as Solicitor General and now as the man who decides whether there’s enough evidence to throw the book at alleged law breakers. Pryde has been vilified by his fellow lawyers in NZ as a regime stooge and is regularly branded as “treasonous” for having served an “illegal” regime. Yet he passionately believes in the concept of fairness and access to justice for all, especially in times of national crisis, and hasn’t been prepared to turn his back on Fiji however intense the vilification that comes his way. As he explained to the Business Council gathering that included Aiyaz Sayed Khaiyum and Chief Justice Anthony Gates: “It is all the more important in times of uncertainty that the justice system is protected and strengthened. It is equally important that the justice system maintains its independence from the government of the day and is free to function unimpeded and unconcerned with the politics of the moment”, he said. Quite so.
Yet that principle is being eroded – not from within but from without -by those countries that, paradoxically, are trying to force Fiji back to an imperfect democracy by degrading its judicial system. In his speech, the DPP said this was the inarguable effect of the Australian and New Zealand travel bans on those who take up government employment, including judges. “The policy of travel bans on judges and on those senior members of the criminal justice system is wholly misconceived. (They) have the effect of undermining the criminal justice system by acting as an obstacle to employing locally qualified and experienced people to the bench who, because they have family in Australia or NZ or perhaps health problems that require trips overseas do not take up judicial appointment”, he said.
The DPP added that the bans were also counterproductive to the national interests of Australia and New Zealand. He cited the recent smashing of an international drug ring by Fijian and Australian authorities that led to the conviction and imprisonment of drug couriers from India and the United States. “On the one hand, we have every assistance provided to us at the agency level. But on the other hand, at the political level, we have a policy designed to prevent the efficient functioning of that same system that would prosecute and convict drug dealers”, he said.
Mr Pryde also blasted his fellow lawyers in Australia and New Zealand for their “hostile” and “highhanded” attitudes towards Fiji. “In Australia, for example, lawyers have been warned that they may face disciplinary proceedings if they take up legal positions in Fiji. In the case of the Office of the Director of Public Prosecutions, the NZ Law Society categorically refused to allow advertisements for prosecution positions in Fiji to be advertised in the Law Society magazine”, he said. While these actions are applauded by anti-regime critics, the DPP said they were “undermining human rights in Fiji by denying ready access to justice for victims of violent crimes or by prolonging the period alleged offenders are remanded in custody until a trial date can be assigned”.
Mr Pryde said the potential delays in the justice system arising from the travel bans and threats to lawyers harmed everyone in society who benefited from a properly functioning judicial system. “It is no argument that all will be well when we have elections. Tell the victims of crimes that they have to wait. It is interesting to note that during apartheid in South Africa, no travel bans were imposed on judges at any time and even in Fiji, following the Rabuka coup and the dismissal of the judiciary in 1987, none of the judges who subsequently took up judicial appointment were subject to travel bans. This is a wholly new and totally misconceived policy designed to intimidate the judiciary and ultimately deprive the people of Fiji of their democratic rights under law”, he concluded.
All this is often forgotten in the constant dinner party lament about the state of the criminal justice system in Fiji, of Sri Lankan judges who come and go, of magistrates barely out of short pants and the frustrations and delays invariably encourtered by anyone caught up in the system. “Justice delayed is justice denied”, goes one of the most famous of legal sayings, and that is the unfortunate legacy of Australia and NZ policy towards Fiji. Fortunately one Kiwi, in Christopher Pryde, is determined to be both independent and forthright and stand up to the pack.
This article has subsequently appeared in the Fiji Sun.
Grubsheet is also mildly astonished to find it on the anti-regime website Fiji Today.
Immediately after his loss in Fiji’s Court of appeal where the Bainimarama was found to have overthrown the Government illegally Christopher Pryde was back at his desk planning the way forward wioth the regime.
In his words if we’re going to throw out the constitution we had to do it right. So he was busy writing the first decrees which were promulgated.
Namely PER and the imposition of censorship
And best of all
EXECUTIVE AUTHORITY OF FIJI DECREE 2009 The decree that says no decree can be challenged in the courts.
As you say “he passionately believes in the concept of fairness and access to justice for all,” and yet he wrote the decree that does the exact opposite. With this decree he denied access to justice for thousands of Fijian pensioners amongst many others.
Here is another example of a regime flunky saying all the right things but meaning none of them
Chrissie, nothing I say is going to please you because you believe that as soon as a brace of barristers from Sydney – sitting as the Fiji Court of Appeal – overturned the findings of a lower court that Christopher Pryde should have packed his bags and returned to Auckland. I don’t and neither do a lot of people in Fiji. This is about Australia and NZ continuing to degrade the criminal justice system in a hissy fit about not getting what they want even though we’re on a path to a fairer, more representative democracy. If they think ordinary people should suffer for that, fine. But their policy is a failure and they’re seen to be both impotent and increasingly unprincipled. Life has moved on.
PER was a necessity and one can imagine the chaos that Madam Bread and the likes would have caused…at least all Indians and the majority of the decent i-taukeis were pretty happy with it….me says bring it on. And may I say that we cannot view things with glasses worn by ANZ and the likes.
And we don’t need history lessons and lessons about our Judiciary from those very people who are hell bent on destroying what the Popular Government is trying to achieve.
To those who talk about the fairness of their system, I say go and preach that in Nothern Territory. TAlk about your fair trial and system to the Aboriginal Family whose son was “murdered” by the cop in custody….some justice.
We know all about your justice system mate….so preach us not.
To Christopher Pryde and Justice Gates….we salute you for your sacrifices…in monetory and material terms you would have benefitted by doing otherwise but you chose to stick with what you think was right…..Dhanbaad……the people of Fiji salute you.
Graham,
I think you would agree the first requirement for an independent judiciary is for the people at the top to believe completely in the rule of law.
With Pryde and Gates we have 2 individuals who clearly do not believe in the rule of law.
As I said earlier Pryde is the architect of the EXECUTIVE AUTHORITY OF FIJI DECREE 2009 The decree that says no decree can be challenged in the courts. If he believes in the rule of Law why has he stopped legal challenges against the regime? With that particular decree he has stopped the pensioners having their day in court. He has also stopped many businesses challenging unfair decrees some of them specifically written to harass individual companies. Media Decree and Fiji Times and the Water Tax that only targets Fiji Water.
There is no way that someone who believes in the rule of law would ever write such a decree.
Then we have Gates. He is the judge who ruled thus “The Constitution’s very indestructibility is part of its strength. It is not possible for any man to tear up the Constitution. He has no authority to do so.”
But he swore an oath to this regime knowing he was committing treason. In so doing he has ignored one of his own rulings.
That is not the action of a man who believes in the rule of law.
Pryde and Gates are affable and genial fellows. I look out for them both at a cocktail or a conference because they are good company. But at the end of the day they have both sold out to the regime and no longer is the rule of law paramount.
Chrissie, you represent the purist legal view about events in Fiji and that is your right. But the argument you’re mounting is nihilistic – that Pryde and Gates should have removed themselves on a matter of legal principle and left the regime to its fate. None of us know what that would have looked like but it’s a safe bet that it wouldn’t have been pretty. The regime wasn’t going to fold up and go home just because a bunch of Sydney barristers said so.
Pryde and Gates chose instead to adapt to changed circumstances, to overcome the general sense of shock and work around the impasse. Your view is that they shouldn’t have done that but many others will be grateful that they did.
No-one thinks what happened was ideal but Fiji is now embarked on a process to restore democratic rule and adopt a new constitution. I think you need to adapt to that reality and stop dwelling on what might have been.
No-one wanted to abrogate the 1997 Constitution. Indeed many believe the regime clung to it for far too long. But when its rule was declared illegal, it was the only option to avoid a return to the status quo. You believe it should have followed that course and you’re entitled to your opinion. But if anything else, it is spilt milk.
You can mount an equally potent argument that by staying on, Pryde and Gates provided a guiding hand on the tiller and a sense of stability. And that if they’d have walked away – as you insist – things might have turned out very much for the worse for the whole country.
Graham,
You present a very reasonable argument but there is one major flaw. There is interference by the regime in the judiciary. Khaiyum has often stepped in and your paragon, Pryde, has also interfered when he was Solicitor General.
There are many instances: Judges, magistrates, court officials, past and present members of DPP, past and present members of FICAC and lawyers can all give examples of the regime interfering in the judiciary.
You are going to ask me for evidence and I am going to say I cannot give it to you because to do so will expose the whistleblowers. And you are going to say you can’t believe me without evidence. That’s fine.
What you do need to know is that many of these whistleblowers have seen the diplomats of ANZ, UK, EU, USA, the UN, various Law Societies and NGO’s They have supplied first hand statements and documentary proof of the interference.
This interference covers many aspects of the judiciary: The AG’s interference in the selection of judges and magistrates in general. The selection of judges and magistrates for individual trials and providing strong guidance in terms of verdicts and sentencing.
ANZ is well aware of the state of the judiciary in Fiji. It is with that knowledge they have imposed travel bans on judges and other senior members of Fiji’s judiciary. As you say it would make sense for them to encourage a strong judiciary because it would it would create a check and a balance against the dictator. But as the judiciary is compromised and is in no way providing a counter to the unlawful acts of Bainimarama and Khaiyum they feel obliged to include the judiciary along with government official and the military in their travel bans.
Chrissie, how on earth is giving general details of the instances you cite going to expose anyone? You don’t even say something like – “well, in the case of such and such this happened…”. You just want the rest of us to take you on trust.
This is a favoured tactic of the regime’s opponents but is totally unacceptable in mounting any argument. “I know and you’ll just have to accept it”. Give me a break. You’re an intelligent person and what would you say if I did the same?
You say all of these instances have been reported to foreign diplomats. Even if that’s true, so what? What has been achieved? So Australia and NZ are maintaining their travel bans. Unfortunately, the real loser here isn’t the regime but the country as a whole. When ordinary people can’t get access to justice because none of the cafe latte legal set want to be banned from the bright lights of Sydney or Auckland, what kind of punishment is that? It doesn’t punish Frank Bainimarama or Aiyaz Sayed Khaiyum.
The truth is that the current policy is a failure is getting any change in Fiji where it might count – in hurting the regime. It powers on with its reform program regardless and Australia and NZ are seen to be impotent and vindictive. And as the months pass and they’re even involved in the electoral reform process themselves – a cornerstone of the return to democracy – they look increasingly ridiculous. The Australian in me finds that humiliating. The Fijian in me finds it pathetic.
On your other point about interference. Suva is the smallest of places so it stands to reason that there’s a significant overlap between the political arm of the state and the judiciary when it comes to social intercourse. But that doesn’t mean the CJ or the DPP take their orders from the AG. It would be only human for them to wonder what the AG might think but their job – as Chris Pryde reiterated – is to act independently.
You’d also hope as an ordinary citizen that everyone is acting both in the interests of natural justice and in the national interest. And if that wasn’t the case, THAT’s when you’d hope that the likes of Pryde and Gates would quit and leave Fiji. But while they remain convinced that they’re acting in the national interest, wouldn’t we all hope that they stayed? Oh, not you, of course. But you want to wind the clock back to another age, not deal with the reality as it is.
Incidentally, the notion of self interest in the case of Gates and Pryde is absurd. Both of them could be earning vastly more abroad, be free of the vilification they endure and be drinking better coffee ( with apologies to the lovely girl who makes mine at ROC ).
@ Graham
Talk about Aussie being ‘humiliated’…I empathise with you….reading about the current elections fiasco in PNG….what an utter shambles…..when PNG government decided in April 2012 to defer the elections by 6 months so that they could clean up their electoral rolls, Aussie Foreign Minister, Bob Carr, quickly got on to the megaphone and threatened sanctions against PNG.
Under pressure from Aussie, the PNG government capitulated and decided to go ahead with the elections without electoral rolls being cleaned up. Now we see the shabby result of Aussie interference…sad to say
Fiji on the other hand, is not like PNG.
Fiji chose its own way and told Aussie to go jump.
PNG cannot do that to Australia who provide up to 30% of the PNG government budget in direct budgetary support. Miliions of bucks c.f. the paltry $18 million they give to Fiji. Even Samoa gets more than Fiji in Aussie aid.
As a postcritpt: AUSAID has suddenly woken up and have recently decided to double Aussie aid to Fiji…what does that tell us?…..a failure of Aussie government’s isolationaist policy towards Fiji and the realisation that it has lost the battle to shape and influence events in Fiji.
Now Fiji has a credible voter registration program underway with all voters having a Voter Registration card that they present at the booths on polling day.
If we had followed Aussie demands (like PNG) to have elections immediately Fiji would have suffered a similar humiliation as PNG when large swathes of people do not appear on their election rolls. It would have been a shambles and a national humiliation! Shocking actually.
Travel around the region and officials will privately tell you that they admire Fiji for its courage in standing up to Aussie and NZ and for doing things their /our own way.
Graham,
I cannot give examples of cases regime interference in the judiciary, because in every instance very few people were involved. Always the finger would point at only 1 or 2 people, who could have blown the whistle. I understand your reluctance to believe what I say without evidence. On the other hand you must acknowledge that people who oppose a military dictator wish to remain anonymous.
I would remind you that absence of evidence is not evidence of absence.
But here is one instance I can mention and it involves the Mac Patel case. Your fellow Australians at DFAT had experts analyse the content and the style of the judgement presented by Goundar. They concluded that it was likely to have been written by Nazhat Shameem and unlikely to have been written by the presiding judge Goundar. Now Shameem as we all know is the on-call legal consultant to the AG.
You keep saying Gates and Pryde have sacrificed much in the Fiji’s national interest. Please tell me how protecting a dictator by interfering in the judiciary is in the national interest. Please tell me how depriving thousands of people access to the law is in the national interest.
To be honest where you say National Interest you should swap the word national for dictator’s and it will read more truthfully.
It is not ANZ, by their travel bans that are damaging the judiciary in Fiji. It is Khaiyum, Pryde and Gates who by interfering in the independence of the judiciary have left it an impotent, devalued, maligned and corrupt.
It is yet another example of Bainimarama saying he was going to clean something up but instead he has made it far worse. Pryde has knowingly helped him every step of the way.
I wish all Australian government agencies was that good including the DFAT in analysing judgements but unfortunately they could not pick on a people smuggler living in their door step in Canberra and finally also escaping the country when it came out on the media. Wish they were really that good !@%$^%*^(. They seem to be good at analysing other peoples problem except their own.
Wah…..kya baat hai…good one…bunch of dumb shits…remember Dr Haniff case although is was a different investigative agency. It makes Dumb and Dumber the clever one.
Chrissie
I read Justice Goundar’s judgments. There is a striking feature about his judgments. He uses simple english, which appeals to the ordinary people because they can easily understand it. Now, if Mac Patel’s judgment was written by Nazhat Shameem, then she must have also written the judgments and sentences of 10 soldiers and 1 police officer convicted of manslaughter of two civilians following 2006 coup by Goundar. But, of course, Nazhat Sameem is a coup plotter. So how could she write judgments and sentences imprisoning military officers. All these doesn’t add up. All judgments of Goundar are posted at Paclii.org/ Why don’t you get your mates at DFAT to enlighten us their expertise in reading thoughts and minds of the judges. In that way, criminals can predict the results before the judgments are handed down by the judges, and flea to Australia to claim refugee status, like most of your friends have done.
God bless
Pita
Chrissie
I found a further judgment of Goundar, in which he made a decision against the State and in favour of Ballu Khan who was charged with conspiracy to kill Bainaimara and Kaiyum. Could you please get DFAT to analyise this decision and tell us if Shameem wrote this in order to interfere with the Fijian judiciary.
Khan v State [2008] FJHC 68; HAM028.2008 (11 April 2008)
IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION
Criminal Miscellaneous Case No.: HAM 028 of 2008
BETWEEN:
BALLU KHAN
Applicant
AND:
THE STATE
Respondent
Counsel: Mr. G. Leung & Mr. S. Leweniqila for the Applicant
Ms. A. Prasad for the State
Date of Hearing: Tuesday 1st April, 2008
Date of Ruling: Friday 11th April, 2008
RULING
[1] The applicant is charged with three counts of conspiracy to murder. The hearing of the trial is pending. This is an application for the release of properties seized by the police following his arrest on 3rd November 2007 at the Delainavesi Police check point.
[2] The applicant seeks release order for the following vehicles and electronic items:
• Toyota Prado registered as EZ233,
• Toyota Hilux registered as FD382,
• Nissan Pathfinder registered as FE301,
• DVD Player, Digital Camera, Video Camera, and Two Ipods.
[3] The grounds for the release order are set out in the applicant’s affidavit as follows:
On Saturday 3rd November 2007, whilst returning from Nadi to Suva in my vehicle Nissan Pathfinder FE301, I was arrested and assaulted by persons I believe to be military and police at the Delainavesi Police Post road block. This vehicle has been in police custody since that time.
On the same date, my other vehicles EZ233 (Toyota Prado), FD382 (Toyota Hilux) were taken by the Police after the drivers of the said vehicles were assaulted by the military/police at the Delainavesi Police Post and kept in Police custody and control at the Central Police Station in Suva. All these vehicles have remained in police custody and control since November 3, 2007 garaged at the police station.
Annexed hereto and marked “BK1” is the Land Transport Authority search results for the vehicles. I confirm that I own EZ233 and that FE301 and FD382 are held under finance leasing arrangements with the Merchant Finance Bank.
On that same date referred to in paragraph 2 and on November 4 on which date the military and police raided my house at 16 Kavika Place, a DVD player, digital camera and ipods were taken from my home at Kavika Place Muanikau. These items belong to my partner Agnes Bulatiko. Agnes who lives with me, is not a person of interest to the police.
On 20 December 2007, I instructed my solicitors to request the Police to regularly start and run for several minutes the engines of the vehicles so as to avoid damage to the engines which will require expensive maintenance. Annexed hereto and marked “BK2” is a copy of the letter my solicitors wrote to the Director of CID.
Between the 3rd of November 2007 to the 8th of January 2008 I was admitted firstly at the Colonial War Memorial Hospital and later at the Suva Private Hospital due to the injuries I suffered at the hands of the military/police at the time of my arrest.
On the 8th of January this year, I was discharged from the Suva Private Hospital at around 3pm. At about 9pm the same day I was taken to the Magistrates Court in Suva under police custody and charged with Conspiracy to Murder. I pleaded not guilty to the charges and was released on bail. I have been on bail since.
On the 15th of January 2008 upon my instructions my solicitors made an application to Magistrate Katonivualiku seeking the release of my cars and other items referred to in paragraphs 1, 2 and 4 of my affidavit. The application was granted by the Magistrate.
In consequence of the Magistrate’s order, on 16 January 2008 my Solicitors wrote to the Director of CID requesting the release of the cars and the other items pursuant to the Magistrate’s order. Annexed hereto and marked “BK3” is a copy of the said letter.
On the 17th January 2008, the Director of Public Prosecutions Office filed and served documents in the High Court seeking a stay of the Magistrate’s orders as aforesaid. Annexed hereto and marked “BK4” and “BK5” is a copy of the Notice of Motion and Affidavit of Tevita Lesu in support respectively.
The DPP’s application for stay was heard by the High Court on 1st February 2008. Judgment was delivered on the 29th February 2008. Annexed hereto and marked “BK6” is a copy of the judgment quashing the Magistrate’s order for the release of the property.
The Police, through the affidavit of Tevita Lesu are detaining the vehicles because they claim their release “may” be a threat to national security.
The claim is baseless and without foundation. No particulars of how my cars constitute a threat to national security have been particularized. The police have now had custody of my cars for more than 4 months now depriving me completely of the use thereof. I believe such adjudication is unconstitutional and unfair. In any event I deny my cars constitute a threat to national security.
The vehicles impounded by the police are ordinary vehicles similar to other vehicles of the same make and model running on Fiji roads. Their continued detention and lack of use will cause long term damage to the systems’ electronics and battery system necessitating repair a further cost to me.
I dispute the contention that the vehicles in question have any evidentiary relevance or value in my trial. This is the ostensible basis upon which the vehicles have been seized. In any event, it should be noted that my case is controversial and I am a high profile person who is constantly under the watchful gaze of the military/police. I am under a night curfew as part of my bail conditions, preventing me from leaving my house between 6pm and 6am daily (except for medical reasons). I have surrendered my passport to the police and cannot leave Fiji. There are other restrictive conditions to my bail. Against this background, the detention of my property and that of Agnes is oppressive and grossly unjust. I honestly feel that there is an element of spite in their continued detention.
The police have now had exclusive custody and control of my cars for more than 4 months now, depriving me completely the use and enjoyment thereof. I believe their initial and continued detention of my property including the cars, is unfair, unreasonable and unlawful. There is no good or lawful reason for the police to be permitted the continued deprivation of my right to property.
I have just recovered from surgery and find it uncomfortable traveling in my present vehicle.
While I have informed the Merchant Bank Finance of the situation in regard the other two vehicles, I am still financially prejudiced by having to pay for the lease of the vehicles even though I have not had access and use of them for the last several months.
If the police claim that vehicles are to be used as exhibits in the trial of the charges against me, there is no reason why that evidence cannot be produced in documentary form through photographs. In any event I am entitled to a constitutional presumption of innocence.
There has never been any suggestion that the other property referred to in paragraph 4 of this my affidavit have any bearing of relevant whatsoever to the police case against me. In any event, as the property belong to my partner Agnes, the police have no colour of right or control over them as she has not been charged with any offence.
The continued detention of my property is causing me financial injury, inconvenience and hardship.
[4] The State opposes the application on the ground that the properties are exhibits for a criminal trial.
[5] On 1st April 2008, this Court conducted an evidentiary hearing at which the State called a witness. Sgt. Jitoko Filipo said that the properties seized by the police are exhibits. He admitted that the seizure of the vehicles were without a warrant. He said that the vehicles were used as the mode of transport to attend meetings and trainings relevant to the conspiracy charges. He said the vehicles have been photographed. The witness offered no evidential relevance of the electronic items subject of this application.
[6] The applicant contends that the properties have no evidential relevance to his criminal trial and therefore should be released to him.
[7] A criminal charge is brought against a person when there is sufficient evidence to link the person to a crime. The incriminating evidence collected following a criminal investigation by the police is preserved for a potential criminal proceeding. Generally, the evidence is in the form of DNA, or articles such as clothing, weapons, documents, etc. The prosecution uses the evidence to prove the elements of the charged offence or a fact in issue in the trial.
[8] The power to seize and preserve evidence is provided by statute and common law. The Criminal Procedure Code expressly provides the right to seize and retain evidence pursuant to a court order.
[9] Section 103 of the Criminal Procedure Code provides:
“Where it is proved on oath to a magistrate or justice of the peace that in fact or according to reasonable suspicion anything upon, by or in respect of which an offence has been committed or anything which is necessary to the conduct of an investigation into any offence is in any building, ship, vehicle, box, receptacle or place, the magistrate or justice of the peace may by warrant (called a search warrant) authorize a police officer or other person therein named to search the building, ship, carriage, box, receptacle or place (which shall be named or described in the warrant) of any such thing which there is reasonable cause to suspect to have been stolen or unlawfully obtained be found, to seize it and carry it before the court issuing the warrant or some other court to be dealt with according to law.”
[10] Section 106 of the Criminal Procedure Code provides:
“(1) When any such thing is seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.
(2) If any appeal is made, or if any person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial.
(3) If no appeal is made, or if no person is committed for trial, the court shall direct such thing to be restored to the person from whom it was taken, unless the court sees fit or is authorized or required by law to dispose of it otherwise.”
[11] The common law allows for seizure of evidence without a court order.
[12] In Ghani v Jones [1970] 1 QB 693, Lord Denning MR at p.706 said:
“I take it to be settled law, without citing cases that the officers are entitled to take any goods which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary.”
[13] The right to retain material evidence necessary for trial does not mean that the State can decide unilaterally that an article is material and its retention is necessary. This is particularly so if the seized evidence is an automobile.
[14] In Krimstock v Kelly, [2002] USCA2 316; 306 F.3d 40 (September 18, 2002) (Krimstock 1), the United States Court of Appeals, Second Circuit, gave a landmark judgment on the seizure of motor vehicles by the City of New York under a statute allowing the City to forfeit motor vehicles found to be an instrumentality of crime. The court said:
“A car or truck is often central to a person’s livelihood on daily activities. An individual must be permitted to challenge the City’s continued possession of his or her vehicle during the pending of trial proceedings where such possession may ultimately prove improper and where less drastic measures then deprivation ….are available and appropriate”.
[15] In another case which is also called Krimstock v Kelly, [2006] USCA2 357; 464 F.3d 246 (September 15, 2006), the United States Court of Appeals, Second Circuit, said:
Courts have, however, subjected a prosecutor’s assertion that evidence is necessary for a criminal investigation to scrutiny for reasonableness. For example, prior to the enactment of Federal Rule of Criminal Procedure 41(e) (now 41(g), federal courts invoked their “general supervisory powers” to order the return of property seized under a valid search warrant if the United States Attorney could not establish the continuing need to hold it. In re Search Warrant for “Premises Known as Encore House”, 100 F.R.D. 700 (S.D.N.Y. 1983); United States v Premises Known as 608 Taylor Ave., 584 F.2d 1297 (3d Cir. 1978); see also In re Smith[1989] USCADC 371; , 888 F.2d 167 (D.C. Cir. 1989) (holding that, even though the prosecutor alleged that evidence was needed for a criminal proceeding, the district court had to evaluate this alleged need and to balance the government’s interests against the claimant’s interests). The courts in these cases ruled that the government may retain seized property for a reasonable time before instituting criminal proceedings, but that the need for continued retention should be evaluated for reasonableness (weighing the competing interests) in light of less drastic means (such as a claimant’s stipulation not to challenge the validity of a copy of duplicate).
[16] Later in the judgment the court said:
Courts use the three-factor balancing test articulated in Mathews v Eldridge “in deciding whether the demands of the Due Process Clause are satisfied where the government seeks to maintain possession of property before a final judgment is rendered.” Krimstock I, 306 F.3d at 60; see Mathews v Eldridge, [1976] USSC 20; 424 U.S. 319, 335[1976] USSC 20; , 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The test weighs: (1) the private interest affected; (2) the risk of erroneous deprivation through the procedures used and the value of other safeguards; and (3) the government’s interest.
[17] Section 164 of the Criminal Procedure Code empowers the courts to decide whether the retention of a property seized by the police as part of criminal investigation is necessary. Any person who is entitled to the property can apply for possession under section 164.
[18] In Bulsara v Commissioner of Police & AG, Civil Action No. HBC 215 of 2000 Shameem J held that whether the State should continue to detain a property seized following a criminal investigation, is subject to the general principle of reasonableness.
[19] The State submits that the seized vehicles were the mode of transport for the accused persons to attend meetings and trainings to carry out the alleged conspiracy.
[20] A conspiracy is an agreement between two or more persons to do an unlawful act. The nub of the offence is the agreement to engage in a common enterprise to do the unlawful act alleged.
[21] Thus, at the hearing of the trial, the primary issues would be:
(i) Whether there was an agreement between two or more persons to commit the alleged unlawful act;
(ii) Whether the accused agreed with one or more of the other accused persons that the unlawful objective of the conspiracy should be carried out; and
(iii) Whether at the time of agreeing to the unlawful objective, the accused intended that objective should be carried into effect.
[22] Given what may be the real questions at the hearing of the trial, the evidential value of the vehicles as offered by the State is minimal.
[23] Counsel for the State has fairly conceded that the vehicles cannot be tendered in evidence at the trial. Instead, the photographs of the vehicles would be tendered.
[24] The rights of the State must be balanced with the rights of the accused. The accused has the constitutional protection against the unreasonable seizure of his property by the State. He is entitled to the presumption of innocence. The vehicles are central to his livelihood.
[25] Two of the vehicles seized are leased from the Merchant Bank Finance. I take that the Merchant Bank Finance has a charge over these vehicles. Any deterioration of the vehicles whilst in the State’s possession will adversely affect the financial interests of an innocent third party.
[26] As I have said the likely issue at the hearing of the trial would be whether the accused persons met and agreed on an unlawful act. How the accused persons reached the destination where the alleged unlawful agreement was formed is an unlikely issue at the hearing of the trial. In the event if it does become an issue, then the fact could be easily proved by other evidence, for instance, by witnesses who saw the accused persons in the vehicles at the material times and by the official documents from the Land Transport Authority as to the ownership of the vehicles.
[27] I also take into account that the seizure of the vehicles was without a warrant. In these circumstances, the State’s continued possession of the vehicles may ultimately prove improper, when less drastic measures are available than deprivation of property.
[28] The accused agrees to the use of the photographs of the vehicles at the hearing of the trial.
[29] For these reasons, I am satisfied that the application should be allowed.
[30] I order the release of the Toyota Prado registered as EZ233, Toyota Hilux registered as FD382, Nissan Pathfinder registered as FE301, DVD Player, Digital Camera, Video Camera, and Two Ipods to the accused upon his written undertaking that he will not dispute the admissibility of the photographs of these items, nor will he dispute the chain of custody of these items at the hearing of the trial.
[31] The release order shall take effect upon filing in court the undertaking and serving a copy on the State.
[32] The order is made without prejudice to any civil claim by the applicant against the State in relation to these properties.
Daniel Goundar
JUDGE
At Suva
Friday 11th April, 2008
Solicitors:
Howards Lawyers, Suva for the Applicant
Office of the Director of Public Prosecutions, Suva for the State
Chrissie
Here is another one. I have given you the facts. Now its your turn to point out which judgments show interference.
State v Vuniwawa [2009] FJHC 101; HAC170.2007S (7 April 2009)
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 170 OF 2007S
BETWEEN:
THE STATE
AND:
MAIKA VUNIWAWA
Counsel: Mr. W. Kurisaqila & Mr. S. Qica for the State
Mr. H. A. Shah & Mr. J. Boseiwaqa for the Accused
Date of Sentence: 7th April 2009
SENTENCE
[1] Maika Vuniwawa, you stand convicted of manslaughter of Nimilote Verebasaga on 5 January 2007. On this day you with some other army officers took the deceased from his home to an army camp at Laleen High School. In your caution interview you said the deceased was harassing the Indian families who were occupying his land as tenants. When you arrived at the military camp, you said the deceased tried to escape. You caught him and on instructions from your commanding officer you made the deceased crawl on the ground. While the deceased was crawling you assaulted him. The post mortem report revealed that the deceased sustained abrasions all over his body and serious injuries to his vital organs such as liver, lungs, pancreas and kidney. The deceased died of hemorrhagic shock due to injuries to vital organs as a result of trauma. He died shortly after the assault.
[2] You are 41 years old and married with six children. You joined the Fiji Military Forces in 1985. You were posted to Reserve. In 2007, you held the rank of Lance Corporal.
[3] After the political event of December 2006 you were deployed to the Nausori area to maintain peace and order in the community. You attended to calls by the members of public regarding disturbance in the community. While your reason for arresting the deceased may have been to maintain peace and order in the community, you had a moral and legal duty to ensure that the deceased was not harmed in any manner whatsoever while he was in your custody. You breached your moral and legal duty when you assaulted the deceased while he was in your custody. Nimilote Verebasaga should not have died. You have taken away a human life and Nimilote’s children will now grow without their father.
[4] Society cannot condone conducts that cause loss of a human life. The right to life is a fundamental right protected by our Constitution. You must understand that Nimilote Verebasaga was entitled to the right to life. You took away that right by punishing him without affording him any due process of law. You failed in your duty to uphold the law.
[5] Albeit the sentences for manslaughter range from suspended sentence to 12 years imprisonment, the circumstances of your offence warrant a custodial sentence.
[6] Your family circumstances and previous good character are the relevant mitigating factors. The aggravating factors are the multiple assaults on the deceased and the fact that you had a moral and legal duty to protect him while he was in your custody.
[7] In State v Nayacalagilagi & Ors. Criminal Case No. HAC 165 of 2007, I imposed a sentence of 4 years imprisonment for an offence of manslaughter committed in similar circumstances as the present case.
[8] Taking into account the mitigating and aggravating factors present in this case, and the need to maintain uniformity in sentences, a term of 4 years imprisonment is an appropriate sentence. However, in this case there is an additional factor present which was not present in Nayacalagilagi’s case. In this case, you offered to plead guilty to the offence of manslaughter before the commencement of the trial, but your plea was rejected by the prosecution. You exercised your trial rights in respect to the murder charge. Following trial you were convicted of manslaughter.
[9] I do not take against you, your exercise of your trial rights. Now that you have been convicted of manslaughter, in principle, you deserve some credit for your plea of guilty to manslaughter as sign of remorse. I therefore reduce your sentence by 1 year to reflect your offer of plea of guilty to the offence of manslaughter.
[10] You are sentenced to 3 years imprisonment.
Daniel Goundar
JUDGE
At Suva
7th April 2009
Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
Haroon Ali Shah, Barrister & Solicitor, Lautoka for the Accused
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Chrissie
Let me make it easy for you, with this judgment of Judge Fernando, in favour of a strong opponent of the current regime, Imrana Jalal. The same judge is now presiding over her hubby’s mate, the former PM. After the decision was given in favour of Imrana, she gave press releases to the international media stating that Fernando was one brave and principled judge. But I am sure people like you will never accept the judge’s verdict of conviction especially if the offender is a person with political, social and economical status in the society. So for people like you it is about status of the person in dock. You don’t believe in equality before the law. You just want the law to treat your friends like Mac Patel differently because he holds a special position in the society. For the first time, the Fijian judiciary is treating the rich and the poor the same. Happy reading Imrana’s case.
God bless Gates CJ
Tuisolia v Director of Public Prosecutions [2010] FJHC 254; HAM125.2010; HAC019.2010 (19 July 2010)
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
MISCELLANEOUS APPLICATION CASE NO: HAM 125 OF 2010
CRIMINAL CASE NO.: HAC 19 OF 2010
BETWEEN:
SAKIUSA TUISOLIA & PATRICIA IMRANA JALAL
APPLICANTS
AND:
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
Hearing: 1st and 2nd July 2010.
Ruling: 19th July 2010.
Counsel: Applicants – Mr. Devanesh Sharma
Respondent – Ms. Puamau
RULING ON STAY
Introduction
[1] On 12th March 2010, the Director Public Prosecutions filed information against Applicants Sakiusa Tuisolia and Patricia Imrana Jalal. Originally Fiji Independent Commission Against Corruption (FICAC) instituted actions separately against the two Applicants and later conduct of the prosecution was transferred to Director of Public Prosecutions. Thereafter the two cases filed separately against the Applicants were amalgamated.
The information in 8 counts namely were:
FIRST COUNT
Statement of Offence
1. OPERATING A RESTAURANT WITHOUT A RESTAURANT LICENCE: Contrary to Section 4(1) and 16 of Public Health (Hotels, Restaurant and Refreshment Bars) (Suva) Regulations, Cap. 111.
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL between the 11th day of July 2008 continuously to the 29th day of July 2008 at Suva in the Central Division conducted a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without a Restaurant License.
SECOND COUNT
Statement of Offence
2. FAILING TO DISPLAY REGULATIONS AND RESTAURANT LICENCE IN A PROMINENT PLACE: Contrary to Section 14(1);13(1) and 16 of Public Health (Hotels, Restaurant and Refreshment Bars) (Suva) Regulations, Cap. 111.
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL between the 11th day of July 2008 continuously to the 29th day of July 2008 at Suva in the Central Division conducted a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without displaying the relevant Regulations and Restaurant License at a prominent place within the said premises.
THIRD COUNT
Statement of Offence
3. DISOBEDIENCE OF LAWFUL ORDERS: Contrary to Section 144 of the Penal Code Cap. 17.
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL between the 29th day of August at Suva in the Central Division continued the conducted of a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva in direct disobedience of a lawful order issued on the 29th day of July 2008 by the Health Inspector of the Suva City Council under the Public Health Act Cap 111 ordering the cessation of the illegal operation of the said restaurant.
FOURTH COUNT
Statement of Offence
4. OPERATING A RESTAURANT WITHOUT A RESTAURANT LICENCE: Contrary to Section 4(1) and 16 of Public Health (Hotels, Restaurant and Refreshment Bars) (Suva) Regulations, Cap. 111.
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL between the 5th day of February 2009 continuously to the 4th day of June 2009 at Suva in the Central Division conducted a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without a Restaurant Licence.
FIFTH COUNT
Statement of Offence
5. FAILING TO DISPLAY REGULATIONS AND RESTAURANT LICENCE IN A PROMINENT PLACE: Contrary to Section 14(1); 13(1) and 16 of Public Health (Hotels, Restaurant and Refreshment Bars) (Suva) Regulations, Cap. 111.
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL between the 5th day of February 2009 to the 4th day of June 2009 at Suva in the Central Division conducted a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without displaying the relevant Regulations and Restaurant Licence at a prominent place within the said premises.
SIXTH COUNT
Statement of Offence
6. OPERATING A FOOD ESTABLISHMENT WITHOUT A LICENCE: Contrary to Section 16(1) (2) and Schedule 2 of the Food Safety Act of 2003.
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL between the 5th day of June 2009 continuously to the 29th day of August 2009 at Suva in the Central Division operated a food establishment, namely ROMA’S HOOK AND CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva without a Licence.
SEVENTH COUNT
Statement of Offence
7. DISOBEDIENCE OF LAWFUL ORDERS: Contrary to Section 144 of the Penal Code Cap. 17.
Particulars of Offence
SAKIUSA TUISOLIA and IMRANA JALAL on the 11th day of August 2009 at Suva in the Central Division continued the conduct of a restaurant business, namely ROMA’S HOOK & CHOOK FISH AND CHIPS, at a premises situated at shop 11, Victoria Corner, Gordon Street, Suva in direct disobedience of a lawful order issued on the 5th day of August 1009 by the Health Inspector of the Suva City Council ordering the cessation of the illegal operation of the said restaurant.
EIGHTH COUNT
Statement of Offence
8. GIVING FALSE INFORMATION TO A PUBLIC OFFICER: Contrary to Section 143 of the Penal Code Cap. 17.
Particulars of Offence
SAKIUSA TUISOLIA on the 5th day of August 2009 at Suva in the Central Division gave false information to the Health Inspector of the Suva City Council that he would comply with the Public Health Regulations that he has not complied with since the 11th of July 2008, in order to avoid being prosecuted by the Health Inspector, but instead sold off the illegal business operation situated at shop 11, Victoria Corner, Gordon Street, Suva namely HOOK & CHOOK FISH AND CHIPS to one Richard Chow of Freshet International.
[2] This application has been made by the two applicants urging court that the charges laid against the Applicants be dismissed or permanently stayed upon the following grounds.
(a) The charges were statute barred pursuant to Section 219 of the Criminal Procedure Code at the time the charges were filed,
(b) The Prosecution was wrongly instituted in the name of FICAC and subsequently taken over by the Director of Public Prosecutions in its own name,
(c) That the charges if validly laid within time ought to have been prosecuted by the Local Authority in the Magistrate’s Court,
(d) The charges are contrary to Section 131 and 132 of the Public Health Act,
(e) The charges were laid contrary to Section 33(3) of the Food and Safety Act 2003,
(f) The charges have been brought contrary to Section 65(1) of the Food and Safety Act 2003,
(g) The charges against Ms. Jalal are brought contrary to Section 134 of the Public Health Act,
(h) The charges under Section 144 of the Penal Code are defective and statute barred, and
(i) Continued prosecution of the charges would be an abuse of process.
[3] The court carefully considered the submissions made by counsel on behalf of both parties.
The Law
[4] The inherent power to stay criminal proceedings to prevent abuse of process has long been recognised in common law. But it should only be employed in exceptional circumstances (State v Waisale Rokotuiwai HAC 0009 of 1995).
[5] In Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Mason CJ High Court of Australia said:
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial, “of such a nature that nothing that a trial Judge can do in the conduct of the trial can relieve against its unfair consequences……”
[6] The authorities also recognise that an abuse of court’s process could take a variety of forms. In Rogers v The Queen (1994) 181 CLR 181, Mason CJ commented:
“…..The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories. Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process”.
[7] The nature of the superior court’s power to stay its own proceedings was addressed by Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378, which was discussed in Zollo v National Australia Bank Ltd and Anor (2009) SASC 38, 23 February 2009
[8] The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.
[9] In Queen v John David Leece No. ACT G20 of 1995 FED. No. 268/96 Criminal Law-Appeal-Practice and Procedure in the Federal Court of Australia, citing Jago v District Court of New South Wales (1989)168 CLR 23, Gallop and hill JJ, said:
“Underpinning the Power of the Court to stay proceedings is the requirement that the court intervene where those proceedings constitute an abuse of process. As Brennan J said in Jago “An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amount to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process”.
[10] An example of a circumstance where the process of a criminal trial will be incapable of serving the purpose it is intended to serve will be where the proceedings are such that “they can clearly be seen to be foredoomed to fail” (Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 293).
[11] I bear in mind these principles to consider the grounds urged for stay in this case.
[12] By this application the Applicants move that the charges be dismissed or stayed permanently. It was submitted that the court could act in terms of Section 290 of the Criminal Procedure Decree 2009.
[13] Section 290 provides for Pre Trial orders, which is a new provision that was not in the Criminal Procedure Code Cap.21. The objectives of this part are mentioned in Section 289.
[14] Section 290 (1) reads as follows:
Prior to the trial of any criminal proceedings either party may make application to the court having control of the proceeding for any order necessary to protect the interests of either party or to ensure that a fair trial of all the issues is facilitated, and such applications may relate to:-
(a) any determination as to the most appropriate locality of the court at which the trial should take place, and the transfer of the proceedings to the most appropriate court;
(b) compelling the attendance of any witness or the production of any evidence at the trial;
(c) compelling the provision by the prosecution to the defence of any briefs of evidence, copies of documents or any other matter which should fairly be provided to enable a proper preparation of the defence case;
(d) a challenge to the use of any report or other evidence that may unfairly prejudice the defence case;
(e) a challenge to the validity of the charge, complaint or information as disclosing no offence under the law;
(f) a challenge to the proceedings on the grounds of the breach of any fundamental human right of the accused person, or any applicable human rights issue; and
(g) any matter concerning the giving of an alibi notice and the information to be provided in such a notice.
(h) the signing of agreed facts under section 135(1) of this Decree.
[15] It was submitted on behalf of the Applicants that the applicants have challenged the charges on number of grounds and that the charges are bad in Law.
[16] In terms of Section 290(1) (e) such applications may relate to a challenge to the validity of the charge, complaint or information as disclosing no offence under the Law.
[17] In this case clear offences are disclosed in all counts. Therefore Section 290(1) (e) has no application to this case.
[18] As mentioned earlier the Law on permanent stay is based on common Law principles, which is different from Section 290 applications of which objectives are given in Section 289 of the Criminal Procedure Decree.
[19] I will now deal with the application for permanent stay.
Ground (a)
The charges were statute barred pursuant to Section 219 of the Criminal Procedure Code at the time the charges were filed.
Section 219
Except where a longer time is specially allowed by law, no offence, the maximum punishment for which does not exceed imprisonment for six months….or a fine of one hundred dollars or both, shall be triable by a magistrates’ court, unless the charge or complaint relating to it is laid within six months from the time when the matter of such charge or complaint arose.
[20] Counsel for State (Respondent) submitted at the hearing that Section 187 of the Criminal Procedure Decree applies on limitation of time as the Criminal Procedure Decree has retrospective effect.
[21] This position cannot be accepted for following reasons.
Part XXII of the Criminal Procedure Decree 2009 provides transitional provisions.
[22] Section 301(1):-
A court hearing any proceeding for an offence which was commenced prior to the commencement of this Decree may apply the provisions of this Decree if no judgment has been made in the case and no sentence has been imposed on the offender prior to the commencement of this Decree.
[23] The words “this decree may apply” shows a discretion given to court.
Further Section 299(1) says:
Nothing in this decree affects the validity of any court proceedings commenced or conducted prior to the commencement of this Decree.
[24] Criminal Procedure Decree 2009 came into operation on 1/2/2010.
These proceedings commenced in the Magistrates Court prior to this date.
[25] Therefore, Part XXII of the Criminal Procedure Decree 2009 will not invalidate the proceedings which was filed prior to 1/2/2010. I accordingly find that limitation time given in Section 219 of Criminal Procedure Code Cap. 21 will apply to this case.
[26] The penal section of the Public Health (Hotels, Restaurant and Refreshment Bars) (Suva) Regulations Cap. 111, Section 16 reads as follows:
Any person convicted of an offence under the provisions of these Regulations shall be liable on conviction in the case of a first offence to a fine not exceeding $20, and in the case of a second offence to a fine not exceeding $40, and in the case of a subsequent offence to a fine not exceeding $100 or to imprisonment for a term not exceeding 6 months or to both such fine and imprisonment, and in the case of a continuing offence, to a further fine not exceeding $4 for each day during which the offence continues.
[27] In Count Nos.1 and 2 of the information, the period of the continuation of the offence is given as 11th July 2008 – 29th July 2008 which is 19 days (both days inclusive).Therefore the maximum fine specified as $20 for the first offence and further fines at the rate of $4 a day for 18 days during the continuance of the offence will add up to a total of $92 which is less than $100.00.
[28] Further, the charges were filed after the lapse of 6 months. Hence in terms of Section 219 of the Criminal Procedure Code, Count Nos. 1 and 2 are caught within the limitation given in the said Section 219 and are foredoomed to fail.
[29] As conceded by the counsel for the applicants in their submissions Section 219 0f the Criminal Procedure Code will not apply to counts 4 and 5 of the information.
I will deal with Grounds (b), (c), (d), (e) together.
[30] Counsel for Applicants contends that Section 2A (1) of the FICAC Promulgation 11 of 2007 makes provision where FICAC may prosecute in its own name before any court. It was submitted that the promulgation empowers the FICAC only to investigate and prosecute those offences mentioned therein. Therefore FICAC is not empowered to prosecute these offences in its own name. Counsel for Applicants acknowledges that cases could be transferred from FICAC to DPP but it was submitted that, that didn’t cure the fact that FICAC had no authority to institute these charges under its own name.
[31] Further, it was submitted on behalf of the applicants that defence did not accept the contention of the state, that anyone could commence prosecutions for regulatory offences or even Penal Code offences.
[32] Further, it was submitted that Justice Shameem’s general ruling in FICAC v Inoke Devo that any person could lay a complaint in the Magistrate’s Court and the court had no powers to refuse to accept such complaints was not acceptable.
[33] In the case of FICAC v Inoke Devo Criminal Case No. HAC. 177 of 2007 Justice Shameem referred to the case LTA v Ajay Singh (2003) FJCA 6AAU 00500.2002S where the Court of Appeal considered the right of the LTA to prosecute in the absence of any statutory provision where it said:
It is perfectly clear that any person has the right to bring and to prosecute a case in court. When a police officer brings a case and prosecutes it, he does not do so by virtue of his position of a police officer, but because he is exercising the right of any member of the public to lay an information and prosecute an offence; Lund v Thompson (1959) 1 QB 283.
[34] I am inclined to agree with Justice Shameem. The submission of the counsel for Applicants that the FICAC had no power to commence a prosecution other than what is conferred by Promulgation No.29 cannot sustain. Therefore, FICAC had the power to commence proceedings in this case.
[35] Certificate issued in terms of Section 33(3) of the Food Safety Act 2003 is filed of record. In terms of Section 67 of the Food Safety Act the said letter of appointment dated 17/12/2009 is in respect of a specific proceeding as mentioned in Section 67 of the Act.
[36] Therefore, the intentions of the Central Board of Health is clear and I find that in terms of Section 67, FICAC is empowered to institute and carry on proceedings under the Act.
Ground (f)
[37] Applicants submit that in terms of Section 65(1) of the Food Safety Act 2003 the charges against the two Applicants are misconceived, premature and they are brought in order to embarrass them. They submit that in terms of Section 65(1), the body corporate has to be convicted first before charges were laid against them.
[38] Section 65(1) of the Food Safety Act states:
If a body corporate is convicted of an offence under this act, the Managing Director or similar officer of the body corporate may also be charged with the same offence as if the act of the body corporate was a personal act of such Director of Officer.
[39] State submits that facts in the cases of Pacific Harbour International Hotel v Buttala (1995) FJHC 35 and Solomon v Solomon and Co. Limited which were brought to the notice of court by the applicants, were different from the facts of this case. It was submitted by the state that the law does not protect or shield the Director or Directors from criminal liability when it was their actions that resulted in direct breaches of the Law. I agree with the submission of the State.
[40] The involvements of the Applicants of the running of the restaurant in question is a question to be decided at the trial. But, when it comes to Count No. 6 of the information, court will have to consider the specific provision provided in the Food Safety Act. With regard to other Counts, in the absence of specific provision on the piercing of the veil of incorporation, it would not protect the Directors from criminal liability.
[41] In terms of Section 65(1) of the Food Safety Act it is a condition precedent that the prosecution gets a conviction against the body corporate before charging the Managing Director or a similar officer. In this case no charges were filed against the body corporate, that is Bottomline Investments Limited. Therefore the prosecution is prevented by charging the Applicants by Law (Section 65(1)) prior to getting a conviction against the body corporate. Hence, Count No. 6 is foredoomed to fail.
Ground (g) The charges against Ms. Jalal are brought contrary to Section 134 of the Public Health Act.
[42] In Counts 3 and 7 both the Applicants are charged for Disobedience of Lawful orders contrary to Section 144 of the Penal Code.
[43] Applicants argue that the notices in issue which were alleged to have been disobeyed were neither addressed nor served on the 2nd Applicant Imrana Jalal.
[44] State submits that operating a business without a licence is an absolute liability offence and not a strict liability offence and abatement notices are given in strict liability offences.
[45] In this case in Counts 3 and 7, both Applicants are charged for disobedience of Lawful orders. Only the 1st Applicant Sakiusa Tuisolia was addressed and served with such an order.
[46] The notices dated 21/7/2008 and 28/7/2009 which were marked and produced as Annexures 8 and 9 to the affidavit of Sakiusa Tuisolia which are relevant to Counts 3 and 7 are neither addressed no served on the 2nd Applicant Imrana Jalal. Having heard the submissions of learned Counsel for Applicants and Respondent, and upon an examination of the notices referred to above, I am of the view that a charge of disobedience of lawful orders cannot be framed against a person on whom no such order was made or served. Therefore, this court concludes that Counts 3 and 7 against the 2nd Applicant are foredoomed to fail.
[47] Further, it was submitted by applicants that the 2nd notice dated 28/7/2009 which was sent to the 1st Applicant was defective, and that it was submitted that in terms of Section 72(2) of the Food Safety Act, Sections 40 – 48 of the Public Health Act (Cap.111) were repealed.
[48] The Food Safety Act came into operation on 5th June, 2009 by commencement notice published in Supplementary Gazette No. 7 of 5/6/2009. The regulations made under the Public Health Act (Cap.111) are made in terms of Section 40 which were repealed on 5/6/2009. Therefore the 2nd notice which was sent to 1st Applicant dated 28/7/2009 under regulations of the Public Health Act is without a legal basis and it could not be acted upon. Therefore Count No.7 is foredoomed to fail.
[49] Counsel for State submitted that this could be cured by an amended information and, that reference to the wrong regulation would not affect the validity of the notice. I am unable to agree with this submission for the reasons stated above.
Ground (h) .The charges under Section 144 are defective and statute barred.
[50] On behalf of the Applicants it was submitted that in terms of Section 144 of the Penal Code a person could be charged only, unless any other penalty or mode of proceeding is expressly prescribed.
[51] It is clear from plain reading of section 144 of the Penal Code, that a person can be punished in terms of this section only if there is no other penalty or mode of proceeding is prescribed in respect of such disobedience.
[52] Counts 3 and 7 are offences contrary to Section 144 of the Penal Code. Contention of the applicants is that Section 141 of the Public Health Act provides a general penalty and that therefore the Applicants cannot be charged under Section 144 of the Penal Code.
[53] In terms of regulation 4(1) of the Public Health regulations, it is an offence to conduct a restaurant without a licence. Therefore, a person can be charged in terms of those regulations for operating a restaurant without a licence.
[54] Section 141 of the Public Health Act states:-
Any person who contravenes or fails to comply with any provision of this Act or any regulation, by-law, order or notice made or issued thereunder shall be guilty of an offence and shall, where no specific penalty is provided, be liable to a fine not exceeding ten dollars or in the case of a continuing offence to a fine not exceeding four dollars a day for each day during which the offence continues after conviction and in default of payment of any penalty under this section to imprisonment for any period not exceeding one month.
[55] Therefore it is clear that for disobedience of lawful orders or notices, a person can be charged under Section 141 of the Public Health Act. Therefore, as specific provision for penalty is provided in Section 141 of the Public Health Act, the complainants in this case cannot be charged for disobedience of lawful orders in terms of Section 144 of the Penal Code. Therefore Count Nos. 3 and 7 are misconceived and bad in Law.
[56] Permanent Stay should not be granted if there is a remedy, the State submits. But even if the court permits to charge for such disobedience in terms of Section 141 of the Public Health Act, limitation in Section 219 of the Criminal Procedure Code will apply. In terms of Section 141 of the Public Health Act for continuing offence penalty of $4 a day starts after conviction. Therefore the Counts 3 and 7 are clearly foredoomed to fail, even if the Applicants are charged in terms of Section 141 of the Public Health Act.
[57] Counsel for applicants further submitted that the alleged offences mentioned in Counts 2 and 5 can only be charged against the licencees. It was the position of the Prosecution that the 1st and 2nd Applicants were not in possession of a licence and it was on that basis that the Applicants were charged for operating a restaurant without a restaurant licence. In terms of Section 14(1) of the Public Health (Hotels, Restaurants and Refreshment Bars) Regulations, a licencee is obliged to display the licence. Therefore the Count Nos. 2 and 5 are clearly bad in law and foredoomed to fail.
[58] Making submissions on the background of the case Counsel for Applicants submitted that prosecution cannot be allowed to continue based on the doctrine of waiver and estoppel. The doctrine of estoppel does not operate in criminal proceedings in common law jurisdictions Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251.
[59] In view of the above reasoning charges in counts 1,2,3,5,6 and 7 are foredoomed to fail and intended proceedings in respect of these counts constitute an abuse of process, as complained by the applicants.
[60] In conclusion, I make order permanently staying proceedings in relation to counts 1,2,3,5,6,and 7 of the information.
[61] Prosecution may proceed with count 4 against both applicants and with count 8 against the 1st applicant.
[62] I make no order as to costs.
Priyantha Fernando
Puisne Judge.
At Suva
19th July 2010.
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URL: http://www.paclii.org/fj/cases/FJHC/2010/254.html
Pita,
Thank you for thorough response to my last posting and your help with making my point of regime interference in the judicary.
The cases that you have posted seem to do nothing to prove there is no interference in our justice system, in fact they do the very opposite.
The first case you present give Agnes Bulatiko her property back which was taken from her without a warrant. The police did not even give evidence for their relevance of these items to their case.
In terms of Khan’s cars the police were forced to give back something of no consequence to their case.
What point are you trying to make?
In case 2 Maika Vuniwawa was sentenced to 3 years imprisonement on 7th April 2009. By 7th May 2009 he was released having served less than 1 month of a 3 year sentence.
I think that is a clear case of the regime interfering in sentencing. They made sure one of the regime served very little of a sentence.
Thank you, I think you proved my point.
Case 3 Imrana Jalal.
Clearly this case should never have been moved into the high courts. All other such cases are dealt with by magistrates because the offense is deemed so petty. The regime used its influence to get the case moved to the high court.
Another case of interference.
You know nothing about me so please keep your accusations to the facts.
What I want for Fiji is contained in the Peoples Charter.
I don’t think you find that state interference in the judiciary is part of the People’s charter.
Under Gates and Pryde, since the abrogation of the constitution, we have seen an increase in interference by the regime in the judiciary. Instead of singing their praises Davis should be showing their shame to the world,
But I think Davis likes his weekly fee from the Fiji Sun for writing propaganda for the south Paicific’s only dictator.
Yawn. How many times do I have to point out that I don’t get paid for any of this, either from the Fiji Government or the Fiji Sun.
Reading your Articles Graham, it’s kind of understanding why no one would be paying you for them !
Chrissie
You seem to be very agitated with the judgments I have posted. Sometimes it hurts when lies are exposed. I guess I have to ask you to first tell us what is your understanding of interefence with the judiciary. My understanding of the concept is that the judges must be independent and impartial in their judgments and that their judgments must be based on law, and facts proven by evidence led in court. You gave Mac’s case as an example to support your contention that there is interference in the judiciary. You say according to DFAT(unqualified experts in judgment writing) Goundar’s judgment in Mac’s case was written by Shameem. Your example of interference defies common sense. My contention is that if Shameem has the ability to write judgments for judges, when she no longer is a judge, how come she did not interfere with Goundar’s judgments convicting and imprisoning soldiers (when she was still a judge), especially when you say she is also a coup plotter. Mac was a great supporter of the regime. Yet he got convicted and imprisoned. To me the judgment shows independence of the judiciary.
Bless you.
Chrissie
You seem to be missing Pita’s point. In Ballu’s case, you say the properties were illegally seized by the police, and therefore, had to be returned. But what triggerred the return of the properties? It was the court’s decision. The decision shows that the judge made his decision based on the law, without any interference. If the regime had interfered with the judge, do you think Ballu and his mistress would have got her properties back?
You say that the soldier was released by the prison after he was sentenced – shows interference with the judiciary. As far as I know, judges don’t run the prisons. Once punishment is imposed on an offender, the court has no jurisdiction over the matter. If the prisoner applies for extra mural (based on the prison regulations), then the prisoner could be released from prison. The courts have no say in that decision of the prison becuase it is an executive decision. But the point here is that the regime was not able to interfere with the judge’s decision to imprison the soldier.
Your response on Imrana is interesting. Imrana was accused of committing crimes. You say they were petty offences (should it matter – a crime is a crime) and so the regime should have kept the case in the Magistrates’ Court. But by having the case transfered to the High Court, who ultimatley benefited? Imrana. The High Court stayed her prosecution. So to me it shows the regime was not able to direct the judge to convict her. The case is a perfect example that courts in Fiji are independent.
I can’t wait to see what person like you will come up after the verdict in Qarase’s trial. I am searching the net for Imrana’s press statements to the international media saying Judge Fernando (now presiding over Qarase’s trial) was a brave and principled judge.
And by the way if you contact your friend Mac, ask him why he absconded to Sydney when his second criminal case is pending. Shows gulity conscience.
Prophetic words indeed from Chris !
One should ask perhaps, was he referring to himself when he spoke them ?
@Andi and Pita
Interference in the judiciary takes many forms. It is also sensible to allow small victories that do not matter.
Balu Khan’s property is one such case. It made no difference to the case whether his property was returned or not. But in the Grand Scheme of things it allows people like you to show give an example of justice at work.
In the Maika Vuniwawa case it is clear interference in the judiciary. The judge passed a sentence of 3 years which he thought was appropriate for killing a person. But the regime interfered with his decision and released the soldier after less than 1 month. The judge passed a sentence that said if you kill even when carrying out the orders of the dictator you will be punished. The dictator said no that’s not right if you kill someone for me you get off scot free. That is interference in my book and in the eyes of everyone except for a few Bainimarama flunkeys.
In Imrana’s case FICAC spent 100s of thousands of dollars pursuing her for not having a business license. They moved an offence which normally carries a $20 fine in a magistrate’s court to the high court. Why did they do this purely because she was an opponent of the regime and FICAC had failed to prove that her husband was corrupt? OK in the end the judger let her off but only after she herself had spent tens of thousands of dollars on her defense. She also felt obliged to leave the country.
This is a clear case of the regime using FICAC to do their dirty work.
Isn’t useful that the regime does not just have to rely only judges to help them pervert the course of justice they have many avenues.
They can use all of the following:
Magistrates Courts
High Courts
Appeal Courts
FICAC
Police
DPP
And let’s not forget Decrees, Christopher Pryde’s way of taking justice away from the people of Fiji.
The trouble with dfat is that they have not reviewed their recruitment policies for a long time. The ignorance and naivety of the department are obvious from Chrissies postings. The evidence of interference is that some other person ( Judge Shameem) is writing Judge Goundar’s judgments? Every law student knows that judges cut and paste from other judges’ judgments. It is not plagiarism, it is the practice of model directions. So if an earlier judgment on a legal issue was upheld in the Court of Appeal or Supreme Court, the other judges will use the same words and the same direction. It is the doctrine of not reinventing the wheel! ( joke) If there are similarities between judgments, it doesn’t mean someone else is writing the judgments! So if this ‘theory’ and analysis fails, what evidence is there of interference? None. Judge Goundar was a very brilliant prosecutor specializing in fraud. He is now a brilliant judge. His judgments posted above show he needs no help to write his judgments.