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Bibi v State [2010] FJHC 306; HAM090.2009S (13 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

MISCELLANEOUS CASE NO. HAM 090 OF 2009S

SHARINA BIBI

V

STATE

Counsels: Mr. R. Singh for the Applicant
Ms. R. Drau for the Respondent

Hearings: 27th May and 30th June 2010
Judgment: 13th August 2010

JUDGMENT

1. On 2nd December 2004, at the Suva Magistrate Court, the applicant waived her right to counsel, and pleaded guilty to the following charge:

Statement of Offence

LARCENY BY SERVANT: contrary to Section 274 (a) (i) of the Penal Code, Act 17.

Particulars of Offence

SHARINA BIBI d/o Karim Buksh, between 29th day of December, 2003 to the 18th day of May, 2004 at Nabua in the Central Division, being employed as a Receptionist and Clerk to Goal Distribution Limited stole $6,652.13 cash, the property of Gosal Distributors Limited.

2. The prosecutor then read his summary of facts to the court. Briefly, the applicant (accused) worked for Gosal Distributors Limited, between the 29th December 2003 to 18th May 2004, as a receptionist and clerk. Her duties include receiving orders from two salesmen, filling out the required invoices, give the same to the salesmen to deliver the goods and receive the payments, receive and tally the payments, and give the same to the company finance controller. During the time, the applicant doctored the books, and underpaid the company by $6,652.13. She used the $6,652.13 on herself. The deceit was later discovered, and she was sacked by the company. The matter was reported to the police, and she was later charged for the present offence. The applicant admitted the above facts in court.

3. The case was then adjourned to 23rd December 2004 for sentencing. It would appear from the record, that the learned sentencing Resident Magistrate prepared a written sentence, for delivery on 23rd December 2004. Somehow, the case was not called on 23rd December 2004, but two years later on 20th December 2006. No reason was given on the record on why the matter was not called on 23rd December 2004, and why it was called two years later on 20th December 2006. The case was adjourned to 9th February 2007.

4. On 9th February 2007, it was recorded in the record, that the applicant had migrated to New Zealand. The case was next adjourned to 16th April 2007. On that date, the prosecution asked the court to sentence the applicant in her absence. It was again adjourned to 30th April 2007. On that date, the prosecution advised the court again that the applicant had migrated to New Zealand. The court then sentenced the applicant in her absence. The 28 days appeal period expired on 28th May 2007.

5. On 7th October 2009, approximately 2 years 5 months later, the applicant filed a notice of motion, with an affidavit in support, asking for leave to appeal out of time. The State replied with an affidavit on 6th November 2009. Section 310 (1) of the Criminal Procedure Code Chapter 21 then became applicable.

6. Section 310 (1) of the Criminal Procedure Code reads as follows:

"Every appeal shall be in the form of a petition in writing signed by the appellant or his barrister and solicitor and shall be presented to the Magistrates' Court from the decision of which the appeal is lodged within twenty-eight days of the date of the decision appealed against:

Provided that the Magistrates' Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section."

7. In the Criminal Procedure Decree 2009, the equivalent of the above section is section 248(1) and (2), which reads as follows:

248.(1) Every appeal shall be in the form of a petition in writing signed by the appellant or the appellant' lawyer, and within 28 days of the date of the decision appealed against—

(a) it shall be presented to the Magistrates Court from the decision of which the appeal is lodged;

(b) a copy of the petition shall be filed at the Registry of the High Court; and

(c) a copy shall be served on the Director of Public Prosecutions or on the Commissioner of the Fiji Independent Commission Against Corruption.

(2) The Magistrates Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.

8. Both parties have filed written submissions. I have carefully read and considered the applicant's application and all the papers submitted by the parties. A preliminary point in the applicant's application in her willingness to personally submit to the jurisdiction of this court. As noted in the Magistrate Court record, she pleaded guilty in court on 2nd December 2004. The case was adjourned to 23rd December 2004 for sentencing and her bail was extended. But, out of her own free will, she migrated to New Zealand and never bothered to inform the court of her whereabouts, until the filing of this present application. As of today, we still don't have an address of the applicant, save through her lawyers.

9. In John Yogendra Singh v The State, Criminal Appeal No. AAU 0025/99S, the Court of Appeal asked the question that needed to be asked in this case,

"...Should the court entertain an appeal from a person who is deliberately evading its jurisdiction and thereby flouting its orders? The answer can be found in the following statement of the practice of the Court of Criminal Appeal in R v Flower [1996] 1 QB 146 –

"...The practice of this court where an appellant escapes, and for that reason is not present when an appeal is called on, is either to adjourn the appeal or dismiss it, according to the justice of the case..."

We adopt this as appropriate practice in the present circumstances, and are not persuaded to the contrary by Mr. Mishra's invocation of the Constitutional right to appeal to a higher Court in s28 (1) (1). That right is always available to citizens, but to avail themselves of it they must be prepared to subject themselves to the lawful jurisdiction of duly established Courts. Where that jurisdiction is rejected, the right must be taken to have been waived or abandoned..."

10. In this case, the applicant evaded the 23rd December 2004 sentencing in the Magistrate Court. The Magistrate Court postponed sentencing to 30th April 2007, to sentence her. In other words, the court gave her 3 years 4 months to front up in court to be sentenced, to no avail. On 2nd December 2004, she promised the court that she will repay the $6,652.13 she stole from the complainant. As of today, not a single cent has been repaid. The 28 days appeal period long expired on 28th May 2007. In lodging her application, she has not submitted herself personally to court. Perusing her grounds of appeal, the chance of success was pretty slim. Case authorities seemed to show that cases of this type often attract a short sharp prison sentence, even for first offenders. She was lucky to get away with a suspended prison sentence, given that she had not repaid a single cent of the $6,652.13 she stole. Three years has passed when the appeal period expired on 28th May 2007. She has shown no good cause to extend the time to appeal. In my view, the justice of the case, required this court to dismiss the application for leave to appeal out of time, simply because no good cause was shown. I order so accordingly.

Salesi Temo
ACTING JUDGE

AT Suva
13th August 2010