State v Chand [2014] FJCA 29; AAU0062.2012 (6 March 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU0062 OF 2012
CRIMINAL APPEAL NO. AAU0085 OF 2012
(Lautoka High Court Case No. HAM 77/12)

BETWEEN:

THE STATE
Appellant

AND:

1. VISHAL CHAND
2. RONIL RAM
Respondents

Coram : Goundar JA

Counsel : Mr. M. Delaney for the Appellant
First Respondent in Person
Mr. S. Sharma for the second Respondent

Date of Hearing : 28 February 2014
Date of Ruling : 6 March 2014

RULING

[1] The respondents and a third accused (Shiu Prasad) were charged with abduction and defilement in the same charge sheet. Shiu Prasad faced one count of abduction of girl under 18 years of age with intent to have carnal knowledge (Count 1). The first respondent faced a charge of abduction (Count 2) and a charge of defilement (Count 3). The second respondent faced a charge of defilement (Count 4). The same girl was subject of counts 2-4 but count 1 concerned a different girl. At the time the alleged offences arose, the respondents were employed as police officers.

[2] On 1 August 2011, the prosecution withdrew the charges against the respondents and Shiu Prasad under section 169(2)(b)(ii) of the Criminal Procedure Decree. The prosecutor informed the learned Magistrate that they were withdrawing the charges because the complainant in count 1 could not be located and the complainant on counts 2-4 did not want to proceed with the case. The learned Magistrate granted leave to withdraw and discharged the respondents. However, after discharging the respondents, the learned Magistrate retained jurisdiction over the case and called it for mention before him on 21 November 2011. On this date, the prosecutor informed the learned Magistrate that he needed further time to get advice from the Director of Public Prosecutions. The nature of the advice that the prosecutor was seeking from the DPP was not disclosed.

[3] On 13 March 2012, the respondents appeared in court with counsel and applied for an acquittal. By this time, a new Magistrate had taken over the case. The learned Magistrate told the respondents' counsel that he could not make any further order because the respondents were discharged on 1 August 2011.

[4] Counsel for the respondents then filed a motion supported by affidavits from the respondents in the High Court to have an order of acquittal entered against them. The reason the respondents gave in their affidavits for seeking an acquittal was that they wanted to rejoin the Fiji Police Force.

[5] The learned High Court judge in his judgment stated that there was no express provision in the Criminal Procedure Decree to deal with the respondent's motion. This statement of the learned judge is an arguable error because the respondents could have appealed against the order of discharge to the High Court.

[6] In his judgment, the learned judge concluded that the motion could be dealt with under the inherent jurisdiction of the High Court. After considering the merits of the motion, the learned judge acquitted the respondents. The State seeks leave to appeal against the order of acquittal by the High Court.

[7] At the hearing, counsel for the second respondent raised a preliminary issue regarding the appeal being out of time.

[8] The High Court delivered its judgment on 17 July 2012. The State filed its Notice of Appeal on 16 August 2012. The Notice was filed within the 30-day appeal period provided by section 26(1) of the Court of Appeal Act. However, the State did not serve the Notice on the respondent until 12 September 2012. A certificate of service was filed in the Court of Appeal Registry on 18 September 2012. By the time the State filed the certificate of service, the Registrar of the Court of Appeal had marked the appeal as being abandoned under Rule 44(13) of the Court of Appeal Rules.

[9] Rule 44(13) provides:

"If Rule 43 or this Rule (except the provisions relating to preparation of the record by the Registrar) is not complied with, the notice of appeal or application for leave to appeal is deemed to be abandoned, but a fresh notice of appeal or application for leave to appeal may be filed before the expiration of 3 months from the date the notice of appeal or application for leave to appeal is deemed to be abandoned."

[10] Rule 43(1) provides:

"The appellant must –

(a) upon filing the notice of appeal or application for leave to appeal pay the filing fee prescribed in Part II of the First Schedule; and

(b) within 7 days after service of the notice of appeal or application for leave to appeal, file a copy endorsed with a certificate of the date the notice was served."

[11] Rule 43(1) outlines two requirements that the appellant must comply. Firstly, the appellant, unless is exempted from the filing fee, must pay the filing fee. Secondly, the appellant must file a certificate of service within 7 days after the respondent is served.

[12] The Rules are silent in relation to the time period within which the Notice of Appeal is to be served on the respondent in criminal appeals. Thus, it is not clear on what basis the appeal was marked as being abandoned by the Registrar.

[13] It is trite law that the right of appeal is a statutory right. If there is a lacuna in the law regarding the time period within which the Notice of Appeal has to be served on the respondent, then such lacuna can only be fixed by amendments to the Act or the Rules. Appellate courts have no power to amend statues and rules made by the legislature by implying a time-period for service on the respondent.

[14] So far as this appeal is concerned, the certificate of service was filed within 7 days from the actual date of service of the Notice of Appeal on the respondents as required by Rule 43(1). I therefore conclude that the State has complied with Rule 43(1) and the abandonment of appeal under Rule 44(13) was made in an error by the Registrar. The initial appeal filed by the State is within time and is valid.

[15] In the present case, the High Court made the order of acquittal under its original jurisdiction. The order of acquittal is a final judgment. The State's appeal falls within the general jurisdiction of the Court of Appeal as provided by section 3(3) of the Court of Appeal Act:

"Appeals lie to the Court as of right from final judgments of the High Court given in the exercise of the original jurisdiction of the High Court."

[16] The sole ground of appeal advanced by the State is that:

"The learned Judge erred in law in interfering with the orders of discharge that had been imposed by the Magistrates' Court of Fiji at Lautoka in the proper exercise of its judicial discretion".

[17] The gist of the State's complaint is that the inherent jurisdiction of the High Court cannot be invoked to interfere with a discretionary final order made by the Magistrates' Court. In other words, the High Court can only set aside a discretionary final order of a Magistrate if there is an appeal or a review against that order under the provisions of the Criminal Procedure Decree. At this stage, the merit of the order of acquittal is not a relevant consideration. The issue is jurisdiction. If there is no inherent jurisdiction to enter an order of acquittal, then the order is a nullity.

[18] The State's appeal raises a question of law regarding the High Court's powers to enter an acquittal using inherent jurisdiction when no appeal was filed against the Magistrate's order of discharge. For these reasons, I find the appeal is arguable.

[19] The State may proceed with this appeal. Leave is not required because the appeal raises a question of law alone.

........................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL