Gounder v State [2015] FJCA 38; AAU0049.2013 (11 March 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO: AAU 0049 OF 2013
[High Court Case No. MISC. HAM74/12]

BETWEEN:

1. LOG NADAN GOUNDER
2. SHAILENDRA DUTT
Appellants

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. M. Raza for the Appellants
Mr. L. Fotofili for the Respondent

Date of Hearing : 21 July 2014
Date of Ruling : 11 March 2015

RULING

[1] This is a timely appeal against a judgment of the High Court in its appellate jurisdiction. The procedural background is relevant.

[2] The appellants were jointly charged on one count of rape contrary to sections 149 and 150 of the Penal Code, Cap. 17. Following a trial in the Magistrates' Court at Nasinu, on 1 March 2012, they were acquitted of the charge at no case to answer stage. Acting upon an oral application for costs, on 10 April 2012, the learned Magistrate ordered the State to pay $2,000.00 costs to each appellant.

[3] On 9 May 2012, the State filed an appeal against the acquittals and costs order in the High Court. Since the State's appeal was late by one day, the State applied for an extension of time to appeal by way of a Notice of Motion supported by an Affidavit. Attached to the Affidavit was the Petition of Appeal. This procedure is provided by section 249 (7) of the Criminal Procedure Decree 2009. The matter was then listed for first call on 4 June 2012.

[4] Thereafter numerous adjournments were granted for the State to serve the Notice on the respondents [now the appellants]. On 20 February 2013, the respondents appeared in court with their respective counsel. The court record states:

Prosecution :	A Hearing (H) could be set.
J. Savou :	Agree.
Mr. Raza :	Agree. Two (2) applications 1st Appeal out of time.
	2nd appeal against cost.
Mr. Raza :	1st and 2nd could be heard on the same day.
Court :	Adjourned 14.13.12 2.15 pm for Hearing (H).

[5] On 14 March 2013, all parties appeared and informed the court that they were relying on
their written submissions. On 19 April 2013 the learned High Court Judge delivered a judgment in which he granted the State an extension of time and allowed the State's appeal.

[6] This appeal was then filed against the High Court's judgment on the following grounds:

"THAT the Learned Hon. Appellant (sic) Judge erred in law for the following reasons:

(a) THAT the Application before the Learned Appellate Judge was for an extension of time to appeal against the no case to answer Ruling. Whereas, the Learned Appellate Judge made orders as if he was presiding over the substantive appeal, which was not even filed.

(b) THAT the orders made by the Learned Appellate Judge are in breach of the Principles of Natural Justice."

[7] This being a second tier appeal, the right of appeal is governed by section 22 of the Court of Appeal Act Cap. 12. Section 22 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...".

[8] In the present case, the learned High Court judge in his written judgment gave clear reasons why he considered the extension of time and the substantive appeal together at para. [10]:

"In this case, I will deal with the application to appeal out of time, and the merits of the appeals together. This is because, if the State succeeds on the merits of the appeal, it will obviously mean an extension of time to appeal will be granted. If the merits of the appeal is not strong, the State's application for an extension of time will be refused. So in a sense the two matters are inter-related."

[9] Perusal of the appellants' written submissions shows that their counsel responded to the State's grounds of appeal in detail. The appellants were accorded an opportunity to be heard on the State's appeal against their acquittals. The law did not prevent the learned High Court judge from hearing the extension of time and the substantive appeal together. In these circumstances, no question of law alone arises from the manner in which the learned High Court considered the State's appeal against the respondents' acquittals and costs order.

[10] Section 35(2) of the Court of Appeal Act Cap. 12 gives a single judge power to dismiss an appeal that is bound to fail because there is no right of appeal. For the reasons given I am satisfied that the appellants do not have a right of appeal under section 22 of the Court of Appeal Act Cap. 12.

Result
Appeal dismissed under section 35(2) of the Court of Appeal Act. Cap. 12.

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

Solicitors:
Mehboob Raza & Associates for Appellant Appellant
Office of the Director of Public Prosecutions for State