Singh v State [2002] FJHC 240; HAR0003J.2002S (10 December 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

REVISIONAL CASE NO: HAR 003 OF 2002S

Between:

AVINESH ATIL SINGH
Applicant

And:

THE STATE
Respondent

Hearing: 9th December 2002
Judgment: 10th December 2002

Counsel: Mr A. Seru for Applicant
Mr S. Leweniqila for State

JUDGMENT

On 1st March 2000, the Applicant was convicted of the following offence in the Navua Magistrate’s Court:

Statement of Offence

LARCENY: Contrary to Section 259(1) and 262(1) of the Penal Code, Act 17.

Particulars of Offence

AVINESH ATIL SINGH s/o Satendra Singh and RAVINESH RANIL SINGH s/o Satendra Singh, between the 8th day of August, 1999 and the 9th day of August, 1999 at Navua in the Central Division, stole one generator valued at $500.00, the property of PREM CHAND s/o Chandar Jeet.

The Applicant and his brother, the co-accused, both pleaded guilty. The facts were that between the 8th and 9th of August 1999 the complainant went to sleep after switching his Suzuki generator off. The Applicant and his co-accused went to his house, and carried it away. The Applicant then sold the generator. It was valued at $500. And was recovered. The facts were admitted. The accused were first offenders. The Applicant’s counsel in mitigation said that the Applicant was 22 years old, and a salesman with a Diploma in Business Studies. He said there was no pre-meditation and asked for an absolute discharge.

The Court bound both accused over in the sum of $200 for 12 months.

The Applicant was given 28 days to appeal. He did not appeal. However, according to the affidavit he has filed (without leave) in support of this application for revision, he has now got married and wishes to join his wife who lives in the United States of America. He has been told that his conviction is a bar to obtaining a visa for the U.S.

Section 323 of the Criminal Procedure Code, provides:

“The Supreme Court may call for and examine the record of any criminal proceedings before any magistrates’ court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such magistrates’ court.”

Section 325(5) of the Code provides:

“(5) Where an appeal lies from any finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”

In this case, it is very clear that the Applicant could have appealed against his conviction and sentence but did not do so. For this reason, this application should not be entertained. The revisionary jurisdiction of the High Court should not be available to those who might have appealed but are hopelessly out of time for such appeal.

Further, there is nothing in the court record to suggest that the sentence passed was incorrect, unlawful or improper. The affidavit of the Applicant (which ought not to have been filed) contains material which was not before the Magistrate’s Court when sentence was passed. If it had been, I doubt that it would have made any difference to the learned Magistrate’s decision.

In all the circumstances, this application for revision of sentence is dismissed.

Nazhat Shameem
JUDGE

At Suva
10th December 2002