Kean v State [2012] FJCA 88; AAU0026.2011 (30 November 2012)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU 0026 of 2011
(High Court Criminal Action No. HAM 33 of 2011)

BETWEEN:

GUSTON FREDRICK KEAN
Appellant

AND:

THE STATE
Respondent

Coram : Chitrasiri JA
Chandra JA
Kumararatnam JA

Counsel : Appellant in Person
Ms S K Puamau for the Respondent

Date of Hearing : 6 November 2012
Date of Judgment : 30 November 2012

JUDGMENT

Chitrasiri JA

1. I agree with the reasons and findings of Chandra JA.
   

Chandra JA

2. The Appellant was charged in the Magistrate's Court of Lautoka with one count of Resisting Arrest, contrary to Section 247(b) of the Penal Code, Cap.17.
   
3. He was found guilty by the learned Magistrate on 3rd September 2010 of the said charge.
   
4. On 26 October 2010 he was sentenced to 12 months imprisonment to run consecutively to any prison term he was currently serving.
   
5. The appellant had submitted a letter dated 4th November 2010 appealing against his conviction and sentence which letter had been submitted to Court on the 19 November 2010 by the Officer in Charge of the Medium Security Prison.
   
6. On 21 January 2011 when the matter (HAM 33/2011) was called before Justice Madigan in the High Court of Fiji at Lautoka, the application was refused stating that the appeal was out of time.
   
7. On 25 March 2011 the Appellant filed an application for leave to appeal against his conviction and sentence regarding Criminal Appeal No. HAM 33/2011.
   
8. On 16th February 2012 the Appellant filed a further notice of appeal amending his grounds of appeal against conviction and sentence.
   
9. On 12 October 2012 the Appellant filed a further notice being an application for leave to file further fresh evidence and further amendments.
   
10. The present appeal was taken up for hearing on 6th November 2012 before this Court and then it was revealed that the appeal of the Appellant dated 4 November 2010 but filed by the Prison Authorities on 19 November 2010 was well within the appealable time of 28 days from the date on which the Appellant was sentenced in the Magistrate's Court which was 26 October 2010.
    
11. The decision of the learned High Court Judge refusing the application for leave on the basis that it was out of time is erroneous and is set aside.
    

Kumararatnam JA

12. I also agree with the reasons and findings of Chandra JA.
    

Chandra JA
Order of the Court

13. The case is sent back to the High Court of Lautoka to re-hear the appeal filed by the Appellant on 19 November 2010 together with the additional grounds he has filed subsequently.
    

Hon. Justice K Chitrasiri
JUSTICE OF APPEAL

Hon. Justice S Chandra
JUSTICE OF APPEAL

Hon. Justice P Kumararatnam

JUSTICE OF APPEAL