IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA0018 OF 2004LAB

BETWEEN:

LAND TRANSPORT AUTHORITY

v.

DAVID SATYA ANAND CHETTY
s/o John Krishna

Hearing: 24th May 2005
Judgment: 27th May 2005

Counsel: Mr. T. Romanu for State
In Person- for Appellant

JUDGMENT

The Land Transport Authority appeals the acquittal of the Respondent on the following charge:

Statement of Offence

IMPROPER OPERATION FROM STAND: Contrary to Regulation 32(1) and 58 of Land Transport (Traffic) Regulations 2000.

Particulars of Offence

David Satya Anand Chetty on the 19th of February 2003 at Labasa in the Northern Division being the driver of a Taxi registration number DH201 on Nasekula Road (R. B. Patel) operated the said vehicle other than from its approved stand at the market.

The Respondent was charged by Traffic Infringement Notice. He pleaded not guilty on the 6th of May 2003. the matter was adjourned for several mention dates until the hearing was set for formal proof (the Respondent having failed to appear) on the 29th of September 2003. On that date, the prosecutor told the Court:

“This case falls under Your Worship’s ruling in Traffic Case No 1142/02 State vs Kamalu Din s/o Rafiu Din delivered on 05/09/03. Accused was acquitted. There leave it to Court.”

The learned Magistrate then ruled:

“To reasons given in the above quoted case the accused is acquitted. Right of appeal 28 days.”

The Land Transport Authority appeals against this acquittal on the following grounds:

a)	That the learned magistrate erred in law and procedure by acquitting the accused and not allowing the prosecution to adduce their evidence to assert their case.

b)	That the learned magistrate erred in law and fact when upholding a decision that was not based on the merits of prosecution evidence.

At the hearing of this appeal counsel fairly and properly submitted a copy of the Director of Public Prosecution’s sanction to appeal against acquittal. It is dated the 22nd of February 2005. Section 308(1) of the Criminal Procedure Code provides that no appeal against acquittal shall lie except with the consent of the Director of Public Prosecution. The appeal was filed on the 21st of October 2003, about a year and a half before sanction was filed in Suva City Council v Ramesh Kumar Cr App HAA0040 of 1996 Scott J held. That where no sanction to appeal against acquittal is obtained from the director the appeal must fail. In the King v Waller [1910] KB 364 the Court of Criminal Appeal considered the validity of an indictment which included a charge for which the Director of Public Prosecution’s consent was required, but in respect of which no oral proof of such consent had been led by the prosecution. Instead an inspector of police had produced a written consent purporting to have been signed by the Director. On appeal it was argued that consent had to be properly proved. The Court disagreed saying that if no objection was raised at the trial, a court could assume that consent had been granted. However in the course of judgment, (per Alverstoke J), it was said that it is the duty of the clerk of the Court to ensure that any such consent has been filed at the time that the indictment is filed and that where objection is taken to the existence of such consent the prosecution must prove such consent.

In Price v Himphries [1958] 2 ALL ER 725 the Queen’s Bench Divunen accepted the same principles and said that consent must be filed at the time that the proceedings are instituted and that it is the clerk’s duty to ensure such failing.

Although section 308 does not specify when the consent of the DPP must be filed, I read the word “lies” as similar to the word “exits” or “is permitted.” Thus no appeal against acquittal is permitted without the Director of Public Prosecution’s sanction, and in order to grant the court jurisdiction to hear the appeal, the sanction must exist at the time of the filing of the petition of appeal no clerk of the Magistrates’ Court should accept such a petition without the written sanction of the Director of Public Prosecution. Without such sanction the appeal is incompetent and invalid.

As it is in this case I accept that the Authority seeks to clarify an important point of law for future cases. However such clarification must await the filing of a competent appeal. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Labasa
27th May 2005