Fiji Independent Commission Against Corruption v Sekitoga [2013] FJCA 127; AAU061 of 2012 (5 December 2013)

IN THE COURT OF APPEAL
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: AAU0058 OF 2012

BETWEEN:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
Appellant

AND:

APOLOSI PIO SEKITOGA
Respondent

Coram : Hon. Mr. Justice William Calanchini, President, Court of Appeal
Hon. Mr. Justice Daniel Goundar, Justice of Appeal
Hon. Mr. Justice Prabaharan Kumararatnam, Justice of Appeal

Counsel : Mr. V. Perera for FICAC
Mr. R. Prasad for Respondent

Date of hearing : 20 November 2013
Date of judgment : 5 December 2013

JUDGMENT OF THE COURT

Calanchini P

I have had the advantage of reading the draft judgment by Goundar JA and agree with his conclusion that the appeal should be allowed.

Goundar JA
Background

[1] The respondent was charged with one count each of abuse of office and false pretence under the Penal Code by the Fiji Independent Commission Against Corruption (FICAC). Following a trial in the Magistrates' Court at Sigatoka, the respondent was acquitted of both charges.

[2] On 4 May 2012, FICAC filed a timely appeal against the respondent's acquittal in the High Court at Lautoka. The Petition of Appeal raised three grounds of appeal and was signed by the Deputy Commissioner of the Fiji Independent Commission Against Corruption. The Deputy Commissioner is authorized to perform the functions of the Commissioner by virtue of section 7(1) of the Fiji Independent Commission Against Corruption Promulgation No. 11 of 2007.

[3] On 19 July 2012, FICAC's appeal was dismissed without hearing on merits on the ground that the appeal was filed without a sanction in writing by the Commissioner of the Independent Commission Against Corruption as required by section 246(2) of the Criminal Procedure Decree. The brief judgment of the High Court reads:

1. The Appellant has not complied with Section 246 (2) of the Criminal Procedures (sic) Decree.
   
2. This is patent error hence the appeal is dismissed.
   

[4] Although the learned judge did not expressly state the nature of non-compliance by FICAC, it is clear from the court record of the proceedings in the High Court, the judge was concerned about the lack of written sanction to appeal by FICAC. This appeal is against the High Court's judgment dismissing FICAC's appeal against the respondent's acquittal for want of written sanction.

Jurisdiction
[5] Since this appeal is against a judgment of the High Court in its appellate jurisdiction, FICAC's right of appeal is restricted to question of law only (s22(1) of the Court of Appeal Act). Section 22(1) provides:

"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 appeal which involves a question of law only: (Amended by 38 of 1998)

Provided that no appeal shall lie against the confirmation by the High Court of a verdict of acquittal by a magistrate's court."

[6] In our judgment, the proviso to section 22(1) restricting an appeal against confirmation by the High Court of a verdict of acquittal by a Magistrates' Court does not apply to this appeal. FICAC's appeal was not heard on merits and therefore the High Court deprived itself of an opportunity to confirm or reverse the verdict of acquittal by the Magistrates' Court. If FICAC succeeds in this appeal, the case will have to be remitted to the High Court for determination of FICAC's appeal on merits.

[7] We are further satisfied that the ground of appeal proposed by FICAC raises a question of law only, namely, what is the correct construction of section 246(2) of the Criminal Procedure Decree. Construction of a statute is a point of law alone (Simeli Bili Naisua v The State Cr. App. No. CAV0010 of 2013).

Consideration of ground of appeal

[8] Appeals against acquittals by the Magistrates' Court to the High Court are governed by section 246(2) of the Criminal Procedure Decree. Section 246(2) provides:

"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."

[9] Section 246(2) is in identical terms with the repealed section 309(1) of the Criminal Procedure Code.

[10] The word 'sanction' is not defined in the Criminal Procedure Decree. Nor was it defined in the Criminal Procedure Code. The ordinary meaning of the word 'sanction' according to the Black's Law Dictionary (9th ed) is 'official approval or authorization'.

[11] The question is whether FICAC or the DPP is required to provide official approval in writing to prosecute appeals against acquittals filed by them? FICAC argues that written sanction is not required if they are prosecuting an appeal against acquittal. Counsel for the respondent submits that written sanction is required in all the appeals against acquittals including those prosecuted by FICAC or the DPP. The High Court authorities on the requirement for written sanction considered under the Criminal Procedure Code are not consistent. Earlier authorities suggest that the requirement for written sanction to appeal against an acquittal only applied to persons or institutions other than the DPP or FICAC.

[12] In Suva City Council v. Ramesh Kumar Cr. App. HAA40 of 1996, an appeal against acquittal by the Magistrates' Court was filed by the Suva City Council in the High Court without the written sanction of the DPP. Scott J held that where no sanction had been obtained, the appeal against acquittal must fail.

[13] In Land Transport Authority v. David Chetty Cr. App. HAA0018 of 2004LAB, the Land Transport Authority appealed against an acquittal by the Magistrates' Court to the High Court without the written sanction of the DPP. Shameem J dismissed the appeal saying without sanction the appeal was incompetent and invalid.

[14] In Prices and Incomes Board v. Vijay Narayan Cr. Mis. No. HAM039 of 2008S, the Prices and Incomes Board filed an appeal against acquittal without the DPP's sanction. The appeal was dismissed as being incompetent and invalid.

[15] Subsequent authorities in the High Court extended the requirement for written sanction to appeals brought by the DPP. In DPP v. Simione Senibua Rabaka Cr. App. No. HAA013 of 2008, the respondent was acquitted of a charge of larceny by servant by the Magistrates' Court. The DPP filed an appeal against the acquittal without attaching a written sanction. The High Court found the appeal to be incompetent and dismissed it. Similarly, in State v. Ratu Epeli Bogitibau Osborne Cr. App. No. HAA78 of 2007S and State v. Asish Amit Ram Cr. App. No.002 of 2006(Lab), the DPP's appeals against acquittals were held to be incompetent for failure to file written sanction at the time the petitions for appeals were filed.

[16] We are not persuaded that the subsequent judgments of the High Court have correctly construed the requirement for written sanction to appeal against an acquittal by the Magistrates' Court. It is clear that the purpose of section 246(2) is to have some control over appeals to the High Court against acquittals by the Magistrates' Courts. While anyone who was a party to the proceedings in the Magistrates' Court can appeal against an acquittal, the two institutions that have been given the responsibility to sanction in writing an appeal against acquittal are the DPP and the Commissioner. The rational for the written sanction is to prevent frivolous or vexatious appeals against acquittals. To impute the requirement for sanction in an appeal by the DPP or FICAC is indeed absurd.

[17] If FICAC or the DPP files an appeal against acquittal by the Magistrates' Court in compliance with their statutory right, then there is a presumption that the official decision to prosecute an appeal is made in a principled manner. In those circumstances, there is no logic in requiring a written sanction to validate your own appeal. Written sanction is only required if an appeal against acquittal is brought in the High Court by a person or institution other than FICAC or the DPP. Based on these reasons, we hold that the High Court erred in law in dismissing FICAC's appeal for want of written sanction.

Kumararatnam JA

I agree with the reasons and conclusions of Goundar JA.

Result

Appeal allowed. Dismissal of FICAC's appeal by the High Court is set aside. FICAC's appeal to the High Court is re-instated. The case is remitted to the High Court for hearing of FICAC's appeal against the respondent's acquittal on merits. The case is listed for mention in the High Court at Lautoka on 11 December 2013, 9.30am to fix a hearing date.

......................................................
Hon. Justice William Calanchini
President, Court of Appeal

......................................................
Hon. Justice Daniel Goundar
Justice of Appeal

......................................................
Hon. Justice Prabaharan Kumararatnam
Justice of Appeal

Solicitors:
Office of the Fiji Independent Commission Against Corruption for Appellant
Messrs. Robinson K. Prasad Lawyers for Respondent