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State v Ratuna [2013] FJMC 76; Criminal Case 315.2010 (13 February 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT NAVUA

Criminal Case : - 315/2010

THE STATE

V

ASESELA RATUNA

For Prosecution : - Sgt. Lenaitasi
For Accused : -Ms. Priya from the Legal Aid

RULING

[1] This is the ruling with regard to the motion filed by the Legal Aid on behalf of the accused on 07/03/2011.

[2] The accused was charged with Fail to confine animals Contrary to section 3[1] and 3[2] of the Trespass of Animals Act. The accused pleaded guilty and the Court delivered the sentence on 03/02/2011.

[3] Being unsatisfied with the above sentence the Legal Aid filed this motion asking this Court to take steps pursuant to section 266 of the Criminal Procedure Decree.

[4] This case was transferred from Suva to this Court on 13/08/2012 and the Legal Aid supported the motion on 16/01/2013.

[5] The learned counsel for the accused based her motion on following grounds.

(a) The learned magistrate erred in law in passing of a fine of $250.00 and compensation of $500.00 when the Trespass of Animal Act Section 3(2) and Section 4(1) provides for a maximum fine of $20.00 and compensation of 0.50 per animal.

(b) That the learned Magistrate acted in excess of jurisdiction.

[6] When the Counsel supported the motion this Court pointed out that this application was not filed within the stipulated time. Thereafter the Learned Counsel asked for extension of time for this application.

[7] The relevant section for this application is Section 266 of the Criminal Procedure Decree. That section states as follows.

— (1) After the hearing and determination by any Magistrates Court of any summons, charge or complaint, if either party to the proceedings is dissatisfied with the determination as being —

(a) erroneous in point of law; or

(b) in excess of jurisdiction, or

the party may make written application to the Magistrates Court within 1 month from the date of the determination, for the Magistrates Court to state and sign a special case setting forth the facts and the grounds of such determination for the opinion on the matter of the High Court.

(2) Upon receiving an application under sub-section (1), the magistrate shall promptly draw up the special case and transmit it to the Chief Registrar of the High Court together with a certified copy of the conviction, order or judgment appealed from and all documents referred to in the special case and the provisions of section 253 shall apply.

(3) If the Magistrates Court of its own motion wishes to refer any determination by it to the High Court on a point of law, the Magistrate may, within 1 month from the date of such determination, state and sign a special case setting forth the point of law for the opinion of the High Court,

(4) Where a Magistrate decides to act under sub-section (3), the Magistrate shall promptly transmit the special case to the Chief Registrar of the High Court together with a certified copy of the conviction, order or judgment appealed from and all documents referred to in the special case and the provisions of section 253 shall apply.

[8] Based on the above section I find that a party can make an application to this court to state a case to the high court if that party is unsatisfied with the determination as

(a) erroneous in point of law; or

(b) in excess of jurisdiction, or

[9] Section 266(1) specifically states that the party has to make that application with a 01 month from the date of the determination. The sentence in this case was delivered on 03/02/2011. According to the Court's record the Legal Aid filed this motion on 07/03/2011. Therefore clearly this application was not filed within the stipulated time period as mentioned in section 266(1).

[10] Therefore the only issue to be determined in this application is can this Court extend the time period for this application as requested by the learned counsel from the Legal aid.

[11] Section 53 of the Interpretation Act states as follows.

"Where in any written law a time is prescribed for doing any act or taking any proceeding, and power is given to a court or other authority to extend such time, then, unless a contrary intention appears, such power may be exercised by the court or other authority although the application for the same is not made until after the expiration of the time prescribed."

[12] Therefore under section 53 of the Interpretation Act the Court can extend a time if that power has been given to the Court. This section is consistent with the provisions regarding the appeal as contained in the Criminal Procedure Decree of 2009.

[13] Part XV of the Criminal Procedure Decree deals appeals from Magistrate courts. According to section 248 (1) of the Decree an appeal has to be filed within 28 days of the date of the decision appealed against. But the section 248(2) has given the Magistrate Court or High Court to extend this time period.

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

[14] On the other hand the section 266(1) states that a party has to make a written application within 01 month from the date of the determination.

[15] I can find no provision similar to section 248(2) of the Decree to extend the time for this kind of application as requested by the learned counsel for the Legal Aid.

[16] It is also very clear when reading the section 266(1) of the decree that this application has to be made within 01 month from the date of the determination. As noted above there is no provision which gives the power to this Court to extend that time.

[17] Therefore to extend the time period would be tantamount to exceeding the jurisdiction of this Court, the very wrong doing the learned counsel is canvassing against in this case.

[18] Therefore I held that this application is not filed within the stipulated time period. Accordingly I dismiss this application without cost.

13/02/2013

H. S. P. Somaratne
Resident Magistrate, Navua