IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT SUVA

Criminal Appeal Case No :HAA 140 of 2007

BETWEEN

RAVINDRA RAJ
Appellant

AND

THE STATE
Respondent

Ms Resina Senikuraciri for the Appellant
Ms. Ratakele for the respondent

RULING

1.	Ravindra Raj, you were charged three counts of Incest by Male, contrary to section 178 of the Penal Code Cap 17. After a trial lasting 10 days in the Nausori Magistrates Court you were convicted on all three counts as charged.
 
2.	On 17 September 2007, you were sentenced to 3 years imprisonment on each count. The Court ordered that the 3 years imprisonment sentence for count 2 be served consecutively with the 3 years for count 1, thus making the total imprisonment term of 6 years. The 3 years sentence for count 3 was to be concurrent to the 6 years.

3.	On 7 November 2007 you submitted your petition of appeal against conviction and sentence. 

4.	On the advise of this court you applied for LAC assistance and you were granted counsel. On 3 April 2008, your counsel advised the Court that on their advise you were willing to withdrawn your appeal against conviction and to pursue only the appeal against sentence. Your appeal against conviction was therefore dismissed. 

5.	The hearing of your appeal against sentence was to be heard on 11 April 2008. On that day, State Counsel advised the court that in reviewing their records of the trial in the Magistrates Court, it became evident that the sanction of the Director of Public Prosecution, a requirement under section 181 of the Penal Code Cap 17, was not obtained or filed in court before prosecutions started against the appellant in this matter. This is a clear requirement for charges preferred under sections 178 and 179 of the Penal Code Cap 17.

6.	The court check confirms from the Court’s records, that there was no sanction file before or at the time the charges under section 178 against the appellant were laid and when prosecution commenced. This was fatal because it meant that the charges against the appellant were prosecuted without proper due process under our law. Section 181 states:

‘No prosecution for an offence under sections 178 and 179 shall be commenced without the sanction of the Director of Public Prosecution’

7.	The plain meaning of section 181, is that ‘ no prosecution for an offence under section 178 shall be commenced’ unless the Director of Public Prosecution has sanctioned it. The wording is in mandatory term. The sanction is a mandatory pre-requisite for starting the prosecution, without that sanction, as in this instance, it is unlawful because it violates the clear terms of section 181 above.

8.	 All that took place in the magistrates Court was void ab initio and the position in law is, as it was before the charges were laid.
 
9.	The next issue for the court to consider is whether in fairness the appellant should be acquitted and therefore cannot be retried or it may be retried once the sanction of the Director of Public Prosecution is granted.

10.	I have come to the conclusion that the court cannot acquit someone who was in law not properly charged and convicted. The procedure in the Magistrates Court was a nullity.

11.	The interest of justice in this case, in my view, favour re-trial. In reaching that conclusion the court has considered the following:

•	Would retrial cause undue delay in the disposal of this case;
•	Lack of any real prejudice to the appellant/accused for a proper trial to be held;
•	Seriousness of the charges;
•	Nature of the charges and the public interest factor in ensuring that person’s who are alleged to have committed serious criminal offences, against young children, will not be stopped from answering those charges in a court of law due to an oversight or honest mistake of a public official;
•	Need to protect the minor who is the victim in this case, to her rights 

12.	I would therefore set aside the conviction and sentence in the Magistrates Court. The matter may be re-tried, subject to the DPP filing his sanction with the charges if he decides accordingly. The appellant is to be released from prison immediately. 

ORDERS

13.	I make the following orders:

i)	The conviction and sentence in the Magistrate Court is set aside;

ii)	The case may be re-tried subject to the Director of Public Prosecutions filing the appropriate sanction;

iii)	The appellant is to be released from prison immediately.

Isikeli Mataitoga
JUDGE

At Suva
18 April 2008