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Faiyaz v The State [2004] FJHC 178; HAM0052J.2003S (20 February 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS ACTION NO: HAM0052 OF 2003

Between:

MOHAMMED FAIYAZ
Applicant

And:

STATE
Respondent

Counsel: Mr. S. Qica for State
No appearance for Applicant

JUDGMENT

The Applicant filed an application for leave to appeal out of time on the 30th December 2003. Thereafter he has shown no interest in the application. Nor can he be traced at the address he gave the Court. I have proceeded to consider the matter in his absence.

The Applicant was convicted on the 21st of October 2003 on three counts of offences under the Land Transport Act. They were, Dangerous Driving, Failing to Stop after an Accident and Failing to Report an Accident. He was fined $500.00, $200.00 and $200.00 on each count respectively, and disqualified from driving for 6 months. He was convicted after a trial. He appealed against conviction and sentence but was 9 days out of time. The application was to be heard on that day but according to the affidavit of the Applicant, dated 29th December 2003, he was delayed because the vehicle he was travelling in, broke down. He did not arrive in Nausori Court until 11am by which time his application was dismissed.

He now applies for leave to appeal out of time in this Court. He may not make a second application, but because he is unrepresented I have treated this application as an appeal from the Magistrate’s refusal.

The grounds of appeal, and the affidavit of the Applicant, suggest that his application was based on a submission that the appeal has merits and that he had good reason to be out of time.

The learned Magistrate refused leave on 28th November 2003. He said that the application failed to specify the grounds of complaint. Indeed the petition of appeal only alleges that the case had not been proved beyond reasonable doubt.

His ground of appeal is that the learned Magistrate erred in failing to consider contradictions in the evidence of the first prosecution witness. However a perusal of the court record shows that PW1, one Sariya Wati, said that she was bumped on Adi Davila Road and that she was bumped by a closed white van. She was only asked one question in cross-examination by the Applicant.

Another witness Rameshwar identified the registration number of the vehicle, LR467. There was no cross-examination.

A police officer PC Vilikesa gave evidence that he visited the scene, saw broken glass and drew a sketch plan. He located the Applicant and interviewed him. He was not cross-examined.

The Applicant gave sworn evidence and said he was driving in Suva at the time of the accident. He said the van had been parked at the time and “somebody may have driven that van.” Under cross-examination he said he had been driving a van in the Nakasi area at the time of the accident and had gone to the Davuilevu area.

The learned Magistrate, in considering the evidence found that the Applicant had made inconsistent statements to the police and in his evidence. He did not believe him. He found that the Applicant had driven in a way which was dangerous in that his manner of driving fell below the standard expected of a competent driver and thereby created a dangerous situation. He also found that the Applicant had failed to stop after the accident and had failed to report it. He convicted the Applicant on all counts.

I see nothing on the court record which might suggest that the appeal has merits. Nor do I consider that the Applicant has cause for complaint in respect of sentence. I consider that the application for leave to appeal out of time was rightly refused by the learned Magistrate.

As for his reason for his tardiness in failing his appeal that the learned Magistrate told him he had only 21 days to appeal, I find it unacceptable. Firstly he was 9 days out of time in respect of the 28 day time limit. Secondly, if he had been told he had only 21 days to appeal, that would logically have spurred him on to file his appeal within 21 days. Lastly his claim is not substantiated by the court record, although he was told that he had to pay his fine within 21 days which is another issue.

In all the circumstances this appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
20th February 2004