Judge sets aside costs

The High Court has set aside a Labasa Magistrate Court order for the Office of the Director of Public Prosecutions to pay $600 in costs for not appearing in court.

The ruling involves a case in which six Police officers are charged with assault. It was called on May 24, 2018, for their plea to be heard. However, the ODPP lawyer had to attend a training session in Suva on that day so she instructed a Police prosecutor to appear on her behalf to fix a new date for plea.

The magistrate in the matter refused to hear the prosecutor because he was a Police officer and the six accused persons were also Police officers.

Accordingly, the magistrate made an ex-parte order for costs against the ODPP pursuant to Section 150 of the Criminal Procedure Act 2009. He awarded costs of $600 to cover travel expenses of three of the six accused officers.

The ODPP appealed against the magistrate’s order pursuant to Sections 246 (6) and (7) of the Criminal Procedure Decree.

In his judgment, Justice Paul Madigan said unfortunately the record

kept by the magistrate was deficient. “He has not noted why he has refused to hear the Police prosecutor,” Justice Madigan said.

“He notes in the record that ‘we will issue cost as a result on the nonappearance of Criminal Procure (sic) Decree’.

“This is a record that the magistrate has signed as correct.”

In an earlier ruling made on an application to dismiss charges for the non-appearance of the prosecution the same magistrate found the application premature, but did pre-warn the parties that an award for costs would be made if the prosecution “failed to turn up” again.

Justice Madigan said it was interesting that in that ruling the same magistrate referred to the need for the court to “exercise its discretion judiciously by balancing the inter-

ests of the prosecution and the defence” a direction that he had not heeded on the May 24, 2018. “The award is very unfair to the State prosecutor. She obviously knew that the case was being called below on that date and having to be in Suva for training, she arranged for a Police prosecutor to apply for an alternative date,” he said.

“Without inquiring of the Police prosecutor why he was appearing, he just assumed that there would be a conflict of interest and refused to hear him.”

Justice Madigan said it was also unfair of the magistrate to make the order without hearing representations from the State as to why such an order should not be made.

“To act so precipitously was contrary to due process and unjust. The State had every right to be heard,” he said.

Justice Madigan allowed the ODPP’s appeal and set aside the magistrate’s order for costs.

Edited by Epineri Vula

In his judgment, Justice Paul Madigan said unfortunately the record kept by the magistrate was deficient.