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State v Waqa [2016] FJHC 787; HAM116.2016 (5 September 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

MISCELLANEOUS JURISDICTION

HAM NO. 116 OF 2016

THE STATE

V

KALIVATI WAQA
SAVENACA NAROBA

ILIESA BAVIA

Counsel: Ms. L. Latu for Appellant
Mr. K. Tunidau for Respondent

Date of Hearing: 28th of July 2016
Date of Ruling: 5th of September 2016

RULING

Introduction

1. The State files this Notice of Motion seeking an order to extend the time to appeal against the sentence imposed by the learned Magistrate of Ba on the 30th of December 2015. The Notice of Motion is being supported by an affidavit of Ratnesh Kumar, stating the grounds of this application. Pursuant to service of the notice of motion, the Respondents filed an affidavit of the third Respondent in opposition for this application. Subsequently, the matter was set down for hearing on the 28th of July 2016. The learned counsel for the Appellant and the Respondents informed the court that they wish to conduct the hearing by way of written submissions. I accordingly directed them to file their respective written submissions, which they filed as per the directions. Having carefully considered the respective affidavits and written submissions, and the record of the proceedings of the magistrates’ court, I now proceed to pronounce my ruling as follows.

Background

2. The three Respondents were charged in the Magistrates’ court of Ba for six counts of Assault Causing Actual Bodily Harm contrary to Section 275 of the Crimes Decree and two counts of Common Nuisance, contrary to Section 376 (1) (b) of the Crimes Decree. On the 30th of December 2015, the three Respondents pleaded guilty for all of these eight counts on their own free will. They then admitted the summery of fact, read over to them by the prosecution. The learned Magistrate then imposed each of the Respondents to pay a fine of $100 for each of the eight counts, in default 14 days of imprisonment for each of the counts. The learned Magistrate has not convicted the three Respondents pursuant to Sections 15 and 16 of the Sentencing and Penalties Decree.
3. Mr. Kumar in his affidavit states that this matter was prosecuted in the Magistrates’ court by the police prosecution office and the police docket was received by the Director of Public Prosecution on the 19th of January 2016, that was twenty days after the sentence was delivered. That delay has prevented the State to file this appeal within the prescribed time as required under Section 248 (1) of the Criminal Procedure Decree. The filing of this application to obtain leave to file appeal out of time was then further delayed by the Tropical Cyclone Winston. The State admits the delay is more than two months, which is actually misconceived. The State filed this Notice of Motion on the 19th of April 2016, that is more than four months after the sentence was imposed.
4. The third named Respondent in his affidavit states that the delay is unreasonable and the excuses of the state for such delay should not be considered.
5. According to Section 248 (1) (a) of the Criminal Procedure Decree as amended by the Criminal Procedure (Amendment) Decree 2014, any petition of appeal against any Judgment, sentence or order of the Magistrates’ court must be filed at the Registry of the High Court within 28 days of such decision. Section 248 (2) of the Criminal Procedure Decree has conferred the High Court with discretionary power to enlarge the limitation of the time of appeal on the ground of any good cause. Section 248 (3) has provided some of the factors that the court is allowed to consider in order to determine the good cause as stated under Section 248 (2). Section 248 (2) and (3) of the Criminal Procedure Decree states that,
   1. The High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.
   2. For the purposes of this section and without prejudice to its generality, "good cause" shall be deemed to include —
      1. A case where the appellant’s lawyer was not present at the hearing before the Magistrates Court, and for that reason requires further time for the preparation of the petition;
      2. Any case in which a question of law of unusual difficulty is involved;
      100. A case in which the sanction of the Director of Public Prosecutions or of the commissioner of the Fiji Independent Commission Against Corruption is required by any law;
      4. The inability of the appellant or the appellant’s lawyer to obtain a copy of the judgment or order appealed against and a copy of the record, within a reasonable time of applying to the court for these documents.
6. Justice Shameem in Buka v The State ( 2002) FJHC 110, HAA0013D.2002S ( 14 May 2002) while dealing under the Section 310 (1) of the Criminal Procedure Code ( equivalent to Section 248 of the Criminal Procedure Decree) held that;

“Under Section 310 (1) of the Criminal Procedure Code, the High Court may enlarge the 28 days appeal period for a good cause. Good causes includes a case where a question of law of unusual difficulty is involved, and where the Appellant has been unable to obtain a copy of the court record.

In considering an application for leave to appeal out of time, a court generally considers the length of delay, the reasons for the delay, whether the appeal has any prospects of success and whether an injustice will arise if leave is refused”

7. The Supreme Court of Fiji in Kumar v State; Sinu v State [2012] FJSC 17; CAV0001.2009 (21 August 2012) has discussed the factors that the court should consider in an application of this nature, where His Lordship the Chief Justice Gates held that;
   1. The reason for the failure to file within time.
   2. The length of the delay.
   3. Whether there is a ground of merit justifying the appellate court's consideration.
   4. Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed,
   5. If time is enlarged, will the Respondent be unfairly prejudiced?
8. Having reaffirmed the above grounds as stipulated in Kumar v State, Sinu v State (Supra), the Supreme Court of Fiji in Rasaku v State [2013] FJSC 4; CAV0009, 0013.2009 (24 April 2013) held that;

“These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargement of time. Ultimately, it is for the court to uphold its own rules, while always endeavouring to avoid or redress any grave injustice that might result from the strict application of the rules of court”

9. In view of the observation made by the Supreme Court of Fiji in Rasaku (supra), the court must always exercise the discretionary power given under Section 248 (2) of the Criminal Procedure Decree in order to ensure the fairness and justice to the proceedings and to the parties involved.

The Reason for the delay

10. The reason for the delay as claimed by the Appellant is attributed to the obtaining of the police docket of this case. It was brought into the office of the Director of Public Prosecution on the 19th of January 2016, that was twenty days after the pronouncement of the sentence. The Appellant did not provide any explanation for the failure to file the petition of appeal within the remaining eight days’ time. The learned counsel for the Appellant submitted in her written submissions that this case was not the only file that her office handles as they received large number of files each day with complicated legal issues to be dealt with. This is an unacceptable explanation, given by the state to justify the delay of four months. I want to believe that this is not an official explanation given by the Director of Public Prosecution and it only resembles the personal opinion of the counsel of the Appellant. Otherwise it would create a grave concern about the rule of law of this jurisdiction. Hence, I do not find there is a valid reason for the delay of four months in failing to file this petition of appeal.
11. I now draw my attention to determine whether there is merit to justify the intervention of this court into the sentence imposed by the learned Magistrate.
12. The proposed grounds of appeal of the Appellant are mainly founded on the ground that the sentence imposed by the learned magistrate is founded on wrong sentencing principles and guidelines. Furthermore, the Appellant submits that the sentence is manifestly lenient having regards to all the circumstances of the case.
13. The learned Magistrate in his sentence has not convicted the three Respondents on the grounds of their careers and previous good character pursuant to Sections 15 and 16 of the Sentencing and Penalties Decree. They were then fined with $100 in default fourteen days of imprisonment for the each of the eight counts.
14. Having carefully considered this impugned sentence and the record of the proceedings of the Magistrates’ court, it is my opinion that there is merit in intervening into this sentence in order to determine whether the sentence imposed by the learned Magistrate is founded on applicable sentencing principles and guidelines.
15. In view of these reasons, I grant the leave to the Appellant to file the petition of appeal out of time.
    

R. D. R. Thushara Rajasinghe
JUDGE

Solicitors : Office of Director of Public Prosecution

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