State v Chand [2004] FJHC 198; HAM0013D.2004S (6 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO: HAM0013 OF 2004S

Between:

THE STATE
Applicant

And:

ESHWAR CHAND
Respondent

Hearing: 4th May 2004
Ruling: 6th May 2004

Counsel: Mr. D. Prasad for State
Mr. C. Latchman for Respondent

RULING

This is an application by the State to enlarge time for appeal. It is made by notice of motion and affidavit filed on the 26th of March 2004. An earlier application was made before me but was struck out on the 15th of March 2004 on the ground of the non-appearance of State counsel.

The Respondent was charged as follows:

Statement of Offence

DRIVING MOTOR VEHICLE UNDER THE DRUG INFLUENCE OF INTOXICATING LIQUOR OR ANY DRUG: Contrary to section 102(1) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

ESHWAR CHAND s/o Ram Prasad, on the 17th day of August 2003, at Navua in the Central Division, drove a motor vehicle registered number BN743 on Queens Road, Tokotoko, Navua whilst under the influence of intoxicating liquor or any drug to such an extent as to be incapable of having proper control of the said motor vehicle.

The Respondent pleaded guilty to the charge on the 21st of January 2004. He was fined $200 and awarded 3 demerit points. The proposed grounds of appeal are:

(a) that the learned Magistrate erred in law when he failed to impose the maximum provided period of disqualification in that there were no sufficient reasons for not doing so; and

(b) that the learned Magistrate erred as a matter of law in awarding 3 demerit points in circumstances in which there was no or no sufficient reason for the exercise of the discretion not to impose the maximum period of disqualification.

Counsel for the Respondent opposes enlargement of time. He submits that the court had a discretion not to disqualify the Respondent from driving, that there were no merit in the appeal, and that the Applicant had failed to show good grounds to justify enlargement of time.

In Kester Yee & Others v. The State HAM0047 of 2002S I summarised the grounds relevant in considering applications to enlarge time for appeal. They are that counsel was not present at the Magistrates’ Court hearing, that a difficult question of law was involved, the sanction of the DPP was required, the inability of the Applicant to get a copy of the court record, lack of legal knowledge and an obviously meritorious appeal.

In this case I do not consider that the State has shown good cause under section 310 of the Criminal Procedure Code. According to the affidavit of David George Toganivalu, the police docket recommending appeal had arrived at the DPP’s Office by the 9th of February 2004, 8 days before the expiry of the appeal period. Although an application to enlarge time was first filed only 6 days after the period for appeal expired, that application was never heard solely because of the failure of State counsel to appear in court to argue it.

The appeal, if filed today, will be 3½ months after the date of conviction. I cannot accept that the administrative delays alluded to in the affidavit of David Toganivalu, satisfactorily explain such delay.

Nor can I say that the grounds of appeal are so compelling that I should allow enlargement of time. Although it is difficult to assess merit without the court record, several judgments have now been delivered by the High Court about the disqualification provisions of the Land Transport Act, and I see no public interest reason why the court should clarify the point further with this appeal, out of time as it is.

In all the circumstances I do not consider that the State has shown sufficient grounds for enlargement of time to appeal. This application is dismissed.

Nazhat Shameem
JUDGE

At Suva
6th May 2004