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Radrodro v State [2000] FJLawRp 67; [2000] 1 FLR 289 (17 November 2000)

[2000] 1 FLR 289

IN THE COURT OF APPEAL OF FIJI

PAULA MALO RADRODRO

v

STATE

Court of Appeal Criminal Appellate Jurisdiction
Casey, Kapi and Handley, JJ
17 November, 2000
AAU0032/95 (on appeal from HAA0098/98L)

Rape - appeal against conviction and sentence - whether Magistrate erred in not granting appellant's request to have his case tried in the High Court - circumstances in which an appeal against sentence can be entertained by the Court - Court of Appeal Act (Cap 12) s22(1) and (1A) - Electable Offences Decree 1988 s3 - Criminal Procedure Code (Cap 21) ss7(a), 308, 319(2); Penal Code ss149, 150

The appellant elected trial in the Magistrates' Court and after several adjournments, sought unsuccessfully to change his initial election and requested to try his case in the High Court. Prosecution did not elect to try the case in the High Court. The trial proceeded in the Magistrates' Court and the appellant was convicted and sentenced to 5 years imprisonment. On appeal, the High Court increased the sentence to 6 years.

Held - (1) Where the accused was represented by counsel for some time and counsel did not request case to be tried in the High Court, there was no error in the exercise of discretion by the magistrate to refuse a change of election to the High Court.

(2) The High Court could not increase a sentence on appeal to greater than Magistrates' Court maximum sentence of 5 years for rape.

appl Eri Mateni v State [1999] AAU0021/98S Judgment of 14 May, 1999.

Increase in sentence was unlawful and in consequence an error of law. Appeal against conviction dismissed. Conviction confirmed. Sentence of 6 years set aside and sentence of 5 years restored.

No other cases referred to in judgment

Appellant in person
Josaia K Naigulevu for the respondent

17 November, 2000.

JUDGMENT

Casey, Kapi and Handley, JJ

The appellant was convicted of the offence of rape contrary to sections 149 and 150 of the Penal Code (Cap 17) by the Magistrate's Court at Lautoka and sentenced to 5 years imprisonment. He appealed in person to the High Court against his conviction only under s 308 of the Criminal Procedure Code (Cap. 21). The High Court dismissed his appeal against conviction but varied the sentence by increasing it to 6 years imprisonment.

The appellant appealed in person to this Court under s 22 of the Court of Appeal Act (Cap. 12)) against the dismissal of his appeal on conviction and sentence imposed by the High Court.

Appeal against Conviction

It is not necessary to set out the grounds of appeal against conviction as the appellant did not pursue these grounds in the hearing before us. We have examined the grounds of appeal and find that they raise questions of fact alone or mixed questions of fact and law and therefore do not come within the ambit of permissible grounds of "questions of law only" under s 22(1) of the Court of Appeal Act (Cap. 12) (as amended).

The appellant however, raised a new ground of appeal in the hearing before us, namely, that the Magistrate erred in not granting the request to have the case tried in the High Court (see s.3 Electable Offences Decree 1988). Counsel for the respondent pointed out that the appellant did not raise this ground of appeal before the High Court and therefore he should not be permitted to raise it before us. The appellant in his brief written submissions argued that he did not raise this point in the High Court because he was not represented by counsel and as a layman, he did not appreciate the point and therefore he was not able to raise it.

He has been refused legal aid by the Legal Aid Commission and is not represented by counsel before us. In the circumstances, we should not determine the result of appeal against conviction on this point alone.

Counsel for the respondent in the alternative, submitted that it was within the discretion of the Magistrate to grant or not to grant the application to try the case in the High Court on the second application. He further submitted that the Magistrate did not commit any error in refusing to grant the application in all the circumstances.

The relevant facts on this point are these when this matter first came before the Magistrate's Court on 20th June 1995, the appellant elected the Magistrate's Court for the trial of his case. When the appellant next appeared in Court on 3rd July 1995 he was represented by counsel. After several adjournments (at the request of the appellant's counsel), counsel for the appellant withdrew from the case on 19th August 1996. The appellant was directed by the Court to instruct another counsel. The appellant did not get new counsel and after many adjournments over a period of 14 months, the matter was finally listed for hearing on 27th November 1997. At the hearing, the appellant changed his initial election and requested to try his case in the High Court. The Magistrate ruled:

"Change denied. This case has been delayed due to accused's Counsel and then withdrawal of Counsel. The Prosecution have been ready for trial, which has been adjourned due to accused not having Counsel. It will be unfair on Complainant and Prosecution if matter is further adjourned for P.I. If Prosecution wish to request for PI then Court will have no discretion. Court does not at this stage see the need for committal (S224)"

The Prosecution did not elect to try the case in the High Court and the case proceeded to trial in the Magistrate's Court.

Counsel for the respondent submitted that having regard to the long delay caused by the appellant in having this matter listed for trial, the Magistrate correctly exercised his discretion in denying the application. There is no suggestion by the appellant that he did not understand the nature of his choice when he first elected trial in the Magistrate's Court. He had legal representation in the Magistrate's Court and at no stage did his counsel request for the case to be tried in the High Court. In the circumstances, we cannot find any error in the exercise of discretion by the Magistrate. In the result we would dismiss this ground of appeal.

Sentence

Section 22(1A) of the Court of Appeal Act (Cap. 12) (as amended by s 4 of the Court of Appeal (Amendment) Act 1998) provides that "no appeal lies in respect of a sentence imposed by the High Court in its appellate jurisdiction unless the appeal is on the ground that the sentence was unlawful one or was passed in consequence of an error of law".

In the present case, the High Court on appeal from the Magistrate's Court increased the sentence of 5 years to 6 years. Counsel for the respondent has conceded that while the High Court has jurisdiction to increase a sentence on appeal from the Magistrate's Court, it is limited to the imposition of sentence to the maximum applicable to the Magistrate's Court under s 319(2) of the Criminal Procedure Code (Cap 21). The maximum sentence a Magistrate may impose for rape is 5 years (see sections 7(a) of the Criminal Procedure Code (Cap. 21). This same point was conceded by the Director of Public Prosecutions in similar circumstances in Eri Mateni v The State (Unreported Judgment of the Fiji Court of Appeal dated 14th May 1999).

We find that the sentence of 6 years was an unlawful one passed in consequence of an error of law. We allow the appeal in respect of sentence.

Orders

Appeal against conviction dismissed and conviction confirmed.

Sentence of 6 years set aside as being unlawful.

Sentence of 5 years restored in lieu thereof.

Appeal dismissed but Magistrates' Court sentence restored.

MARIE CHAN