Ratunarukutabu v State [2012] FJCA 85; AAU0054.2010 (12 November 2012)

IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. AAU0054/10

BETWEEN:

IRIMAIA RATUNARUKUTABUA
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in Person
Mr. M. Korovou for Respondent

Date of Hearing: 11 October, 2012
Date of Ruling: 12 November, 2012

RULING

1. This is an application for leave to appeal against the order of the learned High Court Judge ordering a retrial where he set aside the conviction and sentence imposed on the Appellant by the Magistrate's Court.
   
2. The Appellant was charged for Robbery with Violence contrary to Section 293(1) (a) of the Penal Code (Cap.17) and for Unlawful Use of Motor Vehicle contrary to Section 292 of the Penal Code (Cap.17).
   
3. The Appellant was convicted after a full trial and was sentenced to 4 and ½ years imprisonment on 31st of March 2009.
4. The Appellant appealed against his conviction on the ground that learned Magistrate erred in law in not pronouncing his judgment after the termination of the trial.
   
5. The High Court set aside the conviction and sentence of the Appellant and ordered a re-trial.
   
6. The Appellant in his appeal has raised the following grounds:
   
   1. That the learned Judge erred in law in ordering a re-trial when the entire physical evidence has already been returned to the Complainant.
      
   2. That the Learned Judged erred in law in directing a re-trial when there was no direct evidence on the face of the Court Record to place the appellant in or at the scene of the crime.
      
   3. That the learned Judge's retrial order prejudiced the appellant and is a clear sign of an abuse of process due to the above grounds.
      
7. The State in their written submissions have submitted that the appeal of the Appellant is arguable and concede the granting of leave.
   
8. The State has not however addressed Court on the issue as to whether the appeal of the Appellant rests on a question of law only which is necessary in relation to an appeal in terms of Section 22(1).
   
9. The first ground urged by the Appellant regarding the physical evidence being returned to the Complainant is not borne out by any supporting evidence and therefore cannot be accepted, especially in view of the direction by the learned High Court Judge in his judgment at paragraph 12 to the effect that the prosecution is directed to uplift their exhibits from the court as soon as possible and prepare for trial accordingly.
   
10. The second ground urged by the Appellant relates to the evidence before Court which will have to be considered at the re-trial.
    
11. An appeal lies from the judgment of the High Court exercising appellate jurisdiction to the Court of Appeal in terms of Section 22 of the Court of Appeal Act (Cap.12)which provides as follows:
    

"22(1) Any party to an appeal from a magistrate's court to the High court may appeal under this part against the decision of the High Court in such appellate jurisdiction to the Court of Appeal on any ground of law which involves a question of law only."

12. There is an abundance of authority in relation to Section 22(1) that since it is a second appeal, appeal is allowed only when there is a question of law. Sze Wail Alice, Fong Pak Hung & Ho Kwok On v State (1998) AAU 0013 of 1997; Kuruka Bogiwalu & Ifereimi Nakauta v State (1998) AAU 0006 of 1996.
    
13. The second ground of appeal urged by the Appellant is one which relates to the reviewing of the evidence before the Magistrate's Court. It will then be an appeal on a point of fact and law, which would preclude the ambit of Section 22(1) as was held in Chandra Shekar & Bimal Sankar v State (2005) AAU 0056 of 2004 which was a case relating to the appeal of an order of the High Court ordering a re-trial.
    
14. In view of the above reasoning, the Appellant's application for leave to appeal is refused.
    

Suresh Chandra
Resident Justice of Appeal