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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
[APPELLATE JURISDICTION]
MISCELLANEOUS APPLICATION NO. HAA 48 OF 2023
IN THE MATTER of an Application by the Director of Public Prosecutions in terms of Section 248 (2) and (3) of the Criminal Procedure Act 2009.
AND IN THE MATTER of an Appeal from the decision of the Magistrate’s Court of Nadi, in respect of Traffic Case No. 4219 of 2017.
BETWEEN:
THE STATE
APPLICANT
AND:
YI WEN
RESPONDENT
Counsel : Mr. Joeli Nasa for the Applicant
Mr. Rupesh Singh with Ms. Arthi Swamy for the Respondent
Dates of Hearing : 14 October and 14 November 2024
Date of Judgment: 12 February 2025
JUDGMENT
[1] This is an Application filed by the Director of Public Prosecutions (DPP) seeking an enlargement of time for the lodging of a Petition of Appeal against the decision made by the Magistrate’s Court of Nadi, in Traffic Case No. 4219 of 2017.
[2] By way of an Amended Charge (filed in the Magistrate’s Court of Nadi on 10 June 2020), the Respondent was charged with the following offences:
FIRST COUNT
Statement of Offence (a)
DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97 (2) (c), (5) (d) and 114 of the Land Transport Act No. 35 of 1998.
Particulars of Offence (b)
YI WEN, on the 10th day of December 2017, at Nadi, in the Western Division, drove a motor vehicle registration number IY 459 along Queens Road Bavu, which was involved in an impact occasioning the death of YUN CHANG WAN and at the time of the impact, drove in a manner dangerous to YUN CHANG WAN.
SECOND COUNT
Statement of Offence (a)
DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c), (5) (d) and 114 of the Land Transport Act No. 35 of 1998.
Particulars of Offence (b)
YI WEN, on the 10th day of December 2017, at Nadi, in the Western Division, drove a motor vehicle registration number IY 459 along Queens Road Bavu, which was involved in an impact occasioning grievous bodily harm to LING WAN and at the time of the impact, drove in a manner dangerous to LING WAN.
THIRD COUNT
Statement of Offence (a)
DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c), (5) (d) and 114 of the Land Transport Act No. 35 of 1998.
Particulars of Offence (b)
YI WEN, on the 10th day of December 2017, at Nadi, in the Western Division, drove a motor vehicle registration number IY 459 along Queens Road Bavu, which was involved in an impact occasioning grievous bodily harm to LU XU and at the time of the impact, drove in a manner dangerous to LU XU.
FOURTH COUNT
Statement of Offence (a)
DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c), (5) (d) and 114 of the Land Transport Act No. 35 of 1998.
Particulars of Offence (b)
YI WEN, on the 10th day of December 2017, at Nadi, in the Western Division, drove a motor vehicle registration number IY 459 along Queens Road Bavu, which was involved in an impact occasioning grievous bodily harm to KAI GUO and at the time of the impact, drove in a manner dangerous to KAI GUO.
FIFTH COUNT
Statement of Offence (a)
DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c), (5) (d) and 114 of the Land Transport Act No. 35 of 1998.
Particulars of Offence (b)
YI WEN, on the 10th day of December 2017, at Nadi, in the Western Division, drove a motor vehicle registration number IY 459 along Queens Road Bavu, which was involved in an impact occasioning grievous bodily harm to XIRU WAN and at the time of the impact, drove in a manner dangerous to XIRU WAN.
SIXTH COUNT
Statement of Offence (a)
DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c), (5) (d) and 114 of the Land Transport Act No. 35 of 1998.
Particulars of Offence (b)
YI WEN, on the 10th day of December 2017, at Nadi, in the Western Division, drove a motor vehicle registration number IY 459 along Queens Road Bavu, which was involved in an impact occasioning grievous bodily harm to NANCY HAPKINS and at the time of the impact, drove in a manner dangerous to NANCY HAPKINS.
[3] The Respondent pleaded not guilty to the charges and the matter proceeded to trial.
[4] At the conclusion of the case for the prosecution, a No Case To Answer application was made by the Learned Counsel for the Respondent. On 2 June 2023, the Learned Resident Magistrate found that the No Case To Answer application had merit and accordingly acquitted the Respondent of the charges.
[5] Aggrieved by this Order the State has filed this instant Application by way of a Notice of Motion to Appeal out of Time. The Notice of Motion, which was filed on 3 August 2023, is supported by an Affidavit in Support, filed on the same day, by Maciu Nacaucaulevu, the Senior Litigation Officer, of the Office of the DPP.
[6] On 12 September 2023, the Respondent, Yi Wen, filed an Affidavit in Opposition to the Affidavit in Support filed by Maciu Nacaucaulevu.
[7] This matter was taken up for hearing before me on 14 October 2024 and 14 November 2024. Counsel for both the Applicant and the Respondent were heard. Both parties filed written submissions, and referred to case authorities, which I have had the benefit of perusing.
THE AFFIDAVIT IN SUPPORT FILED BY MACIU NACAUCAULEVU
[8] The Notice of Motion to Appeal out of Time, is supported by an Affidavit in Support filed by Maciu Nacaucaulevu, the Senior Litigation Officer, in the Office of the DPP. Therein, he deposes that he has been a Senior Litigation Officer with the Office of the DPP for the past 22 years. He is currently based in Lautoka since April 2014.
[9] He submits that the prosecution against the Respondent in the Magistrate’s Court of Nadi was handled by the Office of the DPP. The Respondent was charged in the Magistrate’s Court with one count of Dangerous Driving Occasioning Death, contrary to Section 97 (2) (c) read with (5) (d) and 114 of the Land Transport Act No. 35 of 1998 (Land Transport Act) and five counts of Dangerous Driving Occasioning Grievous Bodily Harm, contrary to Section 97 (4) (c) read with (5) (d) and 114 of the Land Transport Act.
[10] The Respondent pleaded not guilty to the charges and the matter proceeded to trial before the then Learned Resident Magistrate, Ms Nirosha Kannangara, in the Magistrate’s Court of Nadi, on 9 July 2018, 27 and 28 February 2023 and 23 and 24 March 2023.
[11] By her Ruling dated 2 June 2023, the Learned Resident Magistrate acquitted the Respondent at the end of the case for the prosecution (at No Case To Answer stage). A copy of the Ruling, dated 2 June 2023, has been annexed as EXHIBIT MN 1.
[12] It is further deposed that on 2 June 2023, the Ruling was only verbally delivered and that no written copy of the said Ruling was issued to the Applicant (The State). On 5 June 2023, the Registry of the Magistrate’s Court of Nadi served a copy of the written Ruling to our office situated at Ratu Naulianano Building, Nadi.
[13] The Officer further deposes that the appeal period for this matter lapsed on 29 June 2023.
[14] As per the procedure set out in the ODPP Appeal Guidelines 2018, all legal opinions relating to appeals must be sent to the Appeals Division in Suva to be vetted by a Senior Officer in the Appeals Division.
[15] Due to this internal administrative process, coupled with the delay in service of the written Ruling to our office, the appeal proceedings were instituted 26 days after the appeal period had lapsed.
[16] The decision to appeal against the Learned Magistrate’s Ruling was endorsed by the Acting Director of Public Prosecutions. [The formal Sanction to Appeal pursuant to Section 246 (2) of the Criminal Procedure Act No. 43 of 2009 (Criminal Procedure Act), was filed in Court on 9 November 2023, by the Acting Director of Public Prosecutions].
[17] A copy of the proposed Petition of Appeal has been annexed as EXHIBIT MN 2. Therein it is stated that the Appellant (Applicant) prays that this Court quash the acquittal by the than Learned Magistrate Nirosha Kannangara and order a new trial before a different Learned Resident Magistrate.
[18] The Officer submits that he verily believes that the delay in filing the appeal proceedings against the Ruling of the Learned Magistrate is not unreasonable in the circumstances and that this appeal has a reasonable prospect of success.
[19] Therefore, the Officer prays that leave be granted to the State to appeal this matter out of time.
THE AFFIDAVIT IN OPPOSITION FILED BY THE RESPONDENT, YI WEN
[20] In his Affidavit in Opposition the Respondent deposes that he resides at Lot 11 Ram Deo Street, Martintar, Nadi.
[21] The Respondent states that the Magistrate’s Court of Nadi had permitted skype evidence to be led of three prosecution witnesses namely: Ling Wan, Kai Guo and Lu Xu, who were residing in China and gave evidence from China. It is deposed that the Counsel for the Respondent had objected to the said three witnesses giving evidence via skype. However, the Magistrate’s Court of Nadi had orally ruled against this objection.
[22] The Respondent deposes that he is not aware of the proceedings of the Applicant’s Office on the process of appeal and approving the filing of an appeal. However, the Respondent submits that the filing of any appeal ought to be achieved within the timelines as set by the relevant laws.
[23] The Respondent further deposes that the delay is unreasonable and that he will be prejudiced if permission is granted to file an appeal out of time as prayed for, since there has been substantial delay in the conclusion of this matter, as the alleged incident had occurred on the 10th of December 2017 some 6 years ago.
[24] Accordingly, the Respondent prays that this application be dismissed.
PROPOSED GROUNDS OF APPEAL AGAINST THE ORDER OF THE RESIDENT MAGISTRATE
[25] Following are the proposed Grounds of Appeal filed by the Applicant:
(i) That the Learned Resident Magistrate erred in law and in fact by failing to adequately assessed all material descriptive evidence of key prosecution witnesses pertaining to the dangerous manner in which the Respondent had driven vehicle Registration No. IY 459 at the time.
(ii) That the Learned Resident Magistrate’s erred in law and in fact by failing to sufficiently evaluate the evidence of prosecution witness one Mr Navneet Dutt Sharma, prosecution witness two Mr Shakeel Hussein Naidu (actually he was prosecution witness seven) and prosecution witness ten Ms Nancy Hapkins, which were relevant and admissible to implicate the Respondent as to the dangerous manner in which he drove vehicle Registration No. IY 459, at the material time.
(iii) That the Learned Resident Magistrate’s erred in law and in fact by needlessly placing significant weight on the perceived contradictory evidence of prosecution witness one, Mr Navneet Dutt Sharma and prosecution witness two, Mr Lin Wan, when such inconsistency was not fatal as to disturb the collective and wholesome nature of evidence presented by the Appellant (Applicant).
THE LAW
[26] Section 246 of the Criminal Procedure Act deals with Appeals to the High Court (from the Magistrate’s Courts). The Section is re-produced below:
“(1) Subject to any provision of this Part to the contrary, any person who is dissatisfied with any judgment, sentence or order of a Magistrates Court in any criminal cause or trial to which he or she is a party may appeal to the High Court against the judgment, sentence or order of the Magistrates Court, or both a judgement and sentence.
(2) No appeal shall lie against an order of acquittal except by, or with the sanction in writing of the Director of Public Prosecutions or of the Commissioner of the Independent Commission Against Corruption.
(3) Where any sentence is passed or order made by a Magistrates Court in respect of any person who is not represented by a lawyer, the person shall be informed by the magistrate of the right of appeal at the time when sentence is passed, or the order is made.
(4) An appeal to the High Court may be on a matter of fact as well as on a matter of law.
(5) The Director of Public Prosecutions shall be deemed to be a party to any criminal cause or matter in which the proceedings were instituted and carried on by a public prosecutor, other than a criminal cause or matter instituted and conducted by the Fiji Independent Commission Against Corruption.
(6) Without limiting the categories of sentence or order which may be appealed against, an appeal may be brought under this section in respect of any sentence or order of a magistrate's court, including an order for compensation, restitution, forfeiture, disqualification, costs, binding over or other sentencing option or order under the Sentencing and Penalties Decree 2009.
(7) An order by a court in a case may be the subject of an appeal to the High Court, whether or not the court has proceeded to a conviction in the case, but no right of appeal shall lie until the Magistrates Court has finally determined the guilt of the accused person, unless a right to appeal against any order made prior to such a finding is provided for by any law.
[Emphasis is mine].
[27] Section 248 (1) of the Criminal Procedure Act provides that “Every appeal shall be in the form of a petition in writing signed by the appellant or the appellant’s lawyer, and (filed) within 28 days of the date of the decision appealed against.”
[28] However, Section 248 (2) of the Criminal Procedure Act sets out that “The Magistrates Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.”
[29] Section 248 (3) of the Criminal Procedure Act stipulates:
“For the purposes of this section and without prejudice to its generality, "good cause" shall be deemed to include —
(a) 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;
(b) any case in which a question of law of unusual difficulty is involved;
(c) 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;
(d) 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.”
[30] Section 256 of the Criminal Procedure Act refers to the powers of the High Court during the hearing of an Appeal. Section 256 (2) and (3) provides:
“(2) The High Court may —
(a) confirm, reverse or vary the decision of the Magistrates Court; or
(b) remit the matter with the opinion of the High Court to the Magistrates Court; or
(c) order a new trial; or
(d) order trial by a court of competent jurisdiction; or
(e) make such other order in the matter as to it may seem just, and may by such order exercise any power which the Magistrates Court might have exercised; or
(f) the High Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the Appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(3) At the hearing of an appeal whether against conviction or against sentence, the High Court may, if it thinks that a different sentence should have been passed, quash the sentence passed by the Magistrates Court and pass such other sentence warranted in law (whether more or less severe) in substitution for the sentence as it thinks ought to have been passed.”
PRINCIPLES RELATING TO ENLARGEMENT OF TIME FOR FILING OF APPEALS
[31] It has now been well established that there are several factors that an Appellate Court needs to take into consideration when dealing with such applications.
[32] In (Kamlesh) Kumar v. State; (Mesake) Sinu v. State [2012] FJSC 17; CAV0001.2009 (21 August 2012), His Lordship Chief Justice Anthony Gates has elaborated on the principles to be applied or considered by the Appellate Courts when exercising its discretion in such matters. These factors are:
(i) The reasons for the failure to file within time;
(ii) The length of the delay;
(iii) Whether there is a ground of merit justifying the appellate court’s consideration;
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the respondent be unfairly prejudiced?
ANALYSIS
[33] In this case the Respondent was acquitted of all the charges by the Learned Magistrate of Nadi, on 2 June 2023. In terms of Section 248 (1) of the Criminal Procedure Act, an appeal against this decision had to be filed within 28 days of the decision. The appealable period lapsed on 30 June 2023.
[34] Furthermore, since this was an order of acquittal, in terms of Section 246 (2) of the Criminal Procedure Act, the filing of an appeal required the sanction in writing of the Director of Public Prosecutions.
[35] This application was filed in the High Court of Lautoka on 3 August 2023. Thus, these proceedings have been instituted about 34 days after the appeal period had lapsed (although the Applicant has computed the delay as 26 days).
[36] The reasons provided by the State for the delay in filing the appeal is that it was due to internal administrative processes, coupled with the delay in the service of the written Ruling to their Office.
[37] In terms of Section 248 (2) of the Criminal Procedure Act it is stated that the Magistrates Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this Section for filing of an appeal. Section 248 (3) of the Criminal Procedure Act broadly sets out as to what good cause shall deem to include. In terms of Section 248 (3) (b) this includes cases where the sanction of the DPP is required in terms of the law.
[38] In (Kamlesh) Kumar v. State; (Mesake) Sinu v. State (supra), the Supreme Court has elaborated on the principles to be applied or considered by the Appellate Courts when exercising its discretion in such matters.
[39] In the instant case, although the reasons for the failure to file the appeal within time may be acceptable, the length of the delay is a period of 34 days. The said length of delay must be considered in light of the usual appealable period, which in this instance is 28 days. The State has taken 62 days to institute these proceedings, which is more than double the time of the usual appealable period. Therefore, the length of the delay in instituting these proceedings, in my view, is not reasonable.
[40] However, in terms of the principles set out in (Kamlesh) Kumar v. State; (Mesake) Sinu v. State (supra), even where there has been substantial delay, nonetheless the Appellate Court has to consider whether there are grounds of appeal that will probably succeed. In other words, whether there is a ground of merit justifying this Court’s consideration.
[41] Therefore, it is necessary for this Court to go into the proposed Grounds of Appeal filed by the State to determine this fact.
The Grounds of Appeal
[42] There are three Grounds of Appeal filed by the State. It is my opinion that the said three Grounds of Appeal are all inter-connected. The Grounds of Appeal relate to the manner in which the Learned Resident Magistrate had assessed and evaluated the evidence of prosecution witnesses led during the trial. Thus, the three Grounds of Appeal will be discussed together.
[43] In this case, the Respondent has been charged in the Magistrate’s Court of Nadi, with one count of Dangerous Driving Occasioning Death, contrary to Section 97 (2) (c) read with Section (5) (d) and 114 of the Land Transport Act and five counts of Dangerous Driving Occasioning Grievous Bodily Harm, contrary to Section 97 (4) (c) read with (5) (d) and 114 of the Land Transport Act. For ease of reference, Section 97 of the Land Transport Act is re-produced below:
97. - (1) A person commits the offence of aggravated dangerous driving occasioning death if the person commits the offence under subsection (2) in circumstances of aggravation.
(2) A person commits the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle -
(a) under the influence of intoxicating liquor or of a drug;
(b) at a speed dangerous to another person or persons; or
(c) in a manner dangerous to another person or persons.
(3) A person commits the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence under subsection (4) in circumstances of aggravation.
(4) A person commits the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle -
(a) under the influence of intoxicating liquor or of a drug;
(b) at a speed dangerous to another person or persons; or
(c) in a manner dangerous to another person or persons.
(5) For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following -
(a) the vehicle overturning or leaving a public street while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise);
(b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise);
(c) an impact between the person and the vehicle;
(d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact;
(e) an impact with anything on, or attached to, the vehicle;
(f) an impact with anything that is in motion through falling from the vehicle.
(6) For the purposes of this section, a vehicle is also involved in an impact occasioning the death of, or grievous bodily harm to, a person if -
(a) the death or harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a public street; and
(b) the prosecution proves that the first-mentioned vehicle caused the impact.
(7) In this section, "circumstances of aggravation" means any circumstances at the time of the impact occasioning death or grievous bodily harm in which -
(a) more than the prescribed concentration of alcohol was present in the accused's blood; or
(b) the accused was driving the vehicle concerned on a public street at a speed that exceeded, by more than 45 kilometres per hour, the prescribed speed limit (if any) applicable to that length of public street; or
(c) the accused was driving the vehicle to escape pursuit by a police or authorised officer.
(8) A person who commits an offence under subsection (1), (2), (3) or (4) is liable on conviction to the prescribed penalty.
[Emphasis above is my own].
[44] The prescribed penalty for the offence is found at Section 114 of the Land Transport Act.
[45] Therefore, in order to prove the first count of Dangerous Driving Occasioning Death, the prosecution must establish beyond reasonable doubt that;
(i) The accused (The Respondent);
(ii) On the specified day (in this instance on 10 December 2017);
(iii) At Nadi, in the Western Division;
(iv) Was driving a vehicle bearing registration number IY 459;
(v) The said vehicle was involved in an impact;
(vi) The impact occasioned (or caused) the death of the deceased Yun Chang Wan; and
(vii) At the time, the accused was driving the said vehicle in a dangerous manner to Yun Chang Wan.
[46] In order to prove the second count of Dangerous Driving Occasioning Grievous Bodily Harm, the prosecution must establish beyond reasonable doubt that;
(i) The accused (The Respondent);
(ii) On the specified day (in this instance on 10 December 2017);
(iii) At Nadi, in the Western Division;
(iv) Was driving a vehicle bearing registration number IY 459;
(v) The said vehicle was involved in an impact;
(vi) The impact occasioned (or caused) grievous bodily harm to Ling Wan; and
(vii) At the time, the accused was driving the said vehicle in a dangerous manner to Ling Wan.
[47] Similarly, in order to prove the third count of Dangerous Driving Occasioning Grievous Bodily Harm, the prosecution must establish beyond reasonable doubt that;
(i) The accused (The Respondent);
(ii) On the specified day (in this instance on 10 December 2017);
(iii) At Nadi, in the Western Division;
(iv) Was driving a vehicle bearing registration number IY 459;
(v) The said vehicle was involved in an impact;
(vi) The impact occasioned (or caused) grievous bodily harm to Lu Xu; and
(vii) At the time, the accused was driving the said vehicle in a dangerous manner to Lu Xu.
[48] Similarly, in order to prove the fourth count of Dangerous Driving Occasioning Grievous Bodily Harm, the prosecution must establish beyond reasonable doubt that;
(i) The accused (The Respondent);
(ii) On the specified day (in this instance on 10 December 2017);
(iii) At Nadi, in the Western Division;
(iv) Was driving a vehicle bearing registration number IY 459;
(v) The said vehicle was involved in an impact;
(vi) The impact occasioned (or caused) grievous bodily harm to Kai Guo; and
(vii) At the time, the accused was driving the said vehicle in a dangerous manner to Kai Guo.
[49] Similarly, in order to prove the fifth count of Dangerous Driving Occasioning Grievous Bodily Harm, the prosecution must establish beyond reasonable doubt that;
(i) The accused (The Respondent);
(ii) On the specified day (in this instance on 10 December 2017);
(iii) At Nadi, in the Western Division;
(iv) Was driving a vehicle bearing registration number IY 459;
(v) The said vehicle was involved in an impact;
(vi) The impact occasioned (or caused) grievous bodily harm to Xiru Wan; and
(vii) At the time, the accused was driving the said vehicle in a dangerous manner to Xiru Wan.
[50] Similarly, in order to prove the sixth count of Dangerous Driving Occasioning Grievous Bodily Harm, the prosecution must establish beyond reasonable doubt that;
(i) The accused (The Respondent);
(ii) On the specified day (in this instance on 10 December 2017);
(iii) At Nadi, in the Western Division;
(iv) Was driving a vehicle bearing registration number IY 459;
(v) The said vehicle was involved in an impact;
(vi) The impact occasioned (or caused) grievous bodily harm to Nancy Hapkins; and
(vii) At the time, the accused was driving the said vehicle in a dangerous manner to Nancy Hapkins.
[51] In terms of Section 97 (5) of the Land Transport Act it is stated that for the purposes of this Section, the circumstances in which a vehicle is involved in an impact occasioning the death of a person or grievous bodily harm to a person include if the death or harm is occasioned through any of the means stipulated in the said sub-section.
[52] In the Statement of Offence, reference is made to Section 97 (5) (d), which is a reference to the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact.
[53] As stated previously, the trial at the Magistrate’s Court of Nadi was held on 9 July 2018, 27 and 28 February 2023 and 23 and 24 March 2023. During the trial the prosecution had called 10 witnesses in support of their case. The witnesses were as follows:
(i) Navnit Dutt Sharma - [Transcripts of the evidence found at pages 23 to 29]
(ii) Ling Wan (Wan Ming) - [Transcripts of the evidence found at pages 53 to 74]
(iii) Kai Guo (Guo Kai) - [Transcripts of the evidence found at pages 75 to 81]
(iv) Lu Xu (Xu Lu) - [Transcripts of the evidence found at pages 82 to 87]
(v) Dr. Niraj Lal - [Transcripts of the evidence found at pages 88 to 94]
(vi) Dr. Arun Murari - [Transcripts of the evidence found at pages 94 to 108]
(vii) Shakir Hussein Naidu - [Transcripts of the evidence found at pages 108 to 116]
(viii) Petero Vuniwaqa - [Transcripts of the evidence found at pages 116 to 119]
(ix) Dr. Avikale Mate - [Transcripts of the evidence found at pages 121 to 125]
(x) Nancy Hapkins (Nancy Jaitun Hopkins) - [Transcripts of the evidence found at pages 125 to 139]
[54] It must be stated that the above page numbering is as per the proper sequence of page markings that should have been followed. In the Magistrate’s Court Record (Volume 1) submitted to Court and to the parties, the page numbering is only found from pages 1 to 18. Thereafter, there is a lapse of several pages where no page numbering has been given. Thereafter, the page numbering recommences from page 19 and continues there from. If the proper sequence is to be followed, the marked page 19 should correspond to page 141 and continue there from.
[55] At the close of the prosecution case, the No Case To Answer application was made by Counsel on behalf of the Respondent.
[56] The Learned Magistrate’s No Case To Answer Ruling, is found from pages 141 to 154 of the Magistrate’s Court Record. Although reference has been made to the relevant provisions of the Land Transport Act, the Learned Magistrate has not specifically identified and referred to the elements the prosecution has to prove to establish the six charges.
[57] The Learned Magistrate has briefly summarized the evidence of the said prosecution witnesses from paragraphs 15 - 25 of her Ruling [pages 150 – 153 of the Magistrate’s Court Record].
[58] The Learned Magistrate had then gone on to briefly analyse the available evidence led by the prosecution from paragraphs 26 - 32 of her Ruling [pages 153 – 154 of the Magistrate’s Court Record].
[59] The Learned Magistrate has concluded by stating (at paragraph 32) as follows:
“After analysing overall evidence of the witnesses, I believe I have no concrete evidence to find that the Accused made a fault and committed the alleged offences. Therefore, I acquit and discharge the Accused from all seven counts in the Charge Statement.”
[60] Having examined the testimony of all the prosecution witnesses led during the trial, I find that the Learned Magistrate has failed to adequately evaluate their evidence in relation to the elements of the offences. There is no dispute that the Respondent was driving vehicle bearing registration number IY 459 at the time of the alleged incident, on 10 December 2017, and that it was involved in an impact. A crucial element that the prosecution has to prove in this case is as to whether the said impact occasioned (or caused) the death of the deceased Yun Chang Wan (In respect of Count 1); and whether the said impact occasioned (or caused) grievous bodily harm to Ling Wan, Lu Xu, Kai Guo, Xiru Wan and Nancy Hapkins, respectively (In respect of Counts 2-6). Another fundamental element that the prosecution has to establish is as to whether the Respondent was driving the said vehicle in a dangerous manner at the time.
[61] I find that the Learned Magistrate has failed to give her mind to the above. It is an error of law and of fact for the Learned Magistrate to merely state that in her opinion there is no concrete evidence to find that the accused made a fault and committed the alleged offences, without properly evaluating all the evidence led by the prosecution in this case.
[62] Therefore, I am of the opinion that the proposed Grounds of Appeal have merit.
[63] As stated before, in terms of the principles set out in (Kamlesh) Kumar v. State; (Mesake) Sinu v. State (supra), even where there has been substantial delay in filing of an appeal, nonetheless the Appellate Court has to consider whether there are grounds of appeal that will probably succeed. In other words, whether there is a ground of merit justifying this Court’s consideration.
[64] Considering the facts of this case in its totality, I am of the opinion that an enlargement of time should be allowed for the State to file their Petition of Appeal out of time.
[65] I am conscious of the fact that the alleged incident took place on 10 December 2017 and now over 7 years has lapsed since that day. I am also conscious of the fact that by permitting the State to file this Appeal Out of Time, some amount of prejudice would be caused to the Respondent. However, the interest of justice must prevail over and above any prejudice that may be caused to the Respondent.
[66] For all the reasons aforesaid, I conclude that enlargement of time to file this Appeal out of time should be granted and that the appeal should be allowed.
[67] I am aware that the Learned Resident Magistrate who heard the case is no longer in service. Therefore, this matter will now have to be handled by another Magistrate in the Magistrate’s Court of Nadi. In the circumstances, I believe it is pertinent for this Court to make reference to Section 139 of the Criminal Procedure Act.
[68] Section 139 of the Criminal Procedure Act which deals with conviction or commitment on evidence partly recorded by one magistrate and partly by another is reproduced below:
(1) Subject to sub-sections (1) and (2), whenever any magistrate, after having heard and recorded the whole or any part of the evidence in a trial, ceases to exercise jurisdiction in the case and is succeeded (whether by virtue of an order of transfer under the provisions of this Decree or otherwise), by another magistrate, the second magistrate may act on the evidence recorded by his or her predecessor, or partly recorded by the predecessor and partly by second magistrate, or the second magistrate may re-summon the witnesses and recommence the proceeding or trial.
(2) In any such trial the accused person may, when the second magistrate commences the proceedings, demand that the witnesses or any of them be re-summoned and reheard and shall be informed of such right by the second magistrate when he or she commences the proceedings.
(3) The High Court may, on appeal, set aside any conviction passed on evidence not wholly recorded by the magistrate before whom the conviction was had, if it is of opinion that the accused has been materially prejudiced, and may order a new trial.
[69] Section 139 (1) of the Criminal Procedure Act permits a Magistrate who is succeeding another Magistrate or taking over the case from another Magistrate to act on the evidence recorded by his or her predecessor, or partly recorded by the predecessor and partly by the succeeding Magistrate. The succeeding Magistrate has the option to re-summon the witnesses and recommence the proceeding or trial (a trial de-novo).
[70] In terms of Section 139 (2) of the Criminal Procedure Act when the succeeding Magistrate commences the proceedings, the Accused has the right to demand that the witnesses or any of them be re-summoned and reheard. The Section also stipulates that the Accused shall be informed of such right by the succeeding Magistrate when he or she commences the proceedings.
FINAL ORDERS
[71] In light of the above, the final orders of this Court are as follows:
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
At Lautoka
This 12th Day of February 2024
Solicitors for the Applicant: Office of the Director of Public Prosecutions, Suva.
Solicitors for the Respondent: Messrs Patel & Sharma, Barristers & Solicitors, Nadi.
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