State v Nisha [2006] FJHC 30; HAM0082D.2005S (27 January 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 82 of 2005S

Between:

THE STATE
Applicant

And:

RESHMUN NISHA
Respondent

Hearing: 20th January 2006
Ruling: 27th January 2006

Counsel: Mr. D. Prasad for State
Respondent in Person

RULING

The State applies for enlargement of time to lodge a petition of appeal, against an order for termination of proceedings by the Suva Magistrates’ Court. The application is made by motion and affidavit. The affidavit of Inspector Mekemeke states that the Respondent was charged with assault occasioning actual bodily harm. The offence was allegedly committed on the 25^th of April 2005.

Charges were filed on the 15^th of June 2005, and the case was adjourned to the 6^th of July 2005 to encourage reconciliation. The alleged victim was one Mary Joseph Sharif. On the 6^th of July, in the presence of the complainant, the Respondent told the court that they had reconciled. The learned Magistrate then terminated proceedings under section 163 of the Penal Code. I was told from the bar table that the alleged assault was a single punch.

On the 20^th of July 2005, the complainant wrote to the DPP’s Office saying she had not reconciled. The docket was called for on the 5^th of September 2005. It arrived at the DPP’s Office on the 26^th of October. A decision was made to appeal the order on the 22^nd of November. On that day, an appeal would have been 98 days out of time.

The attached Petition of Appeal states that the order for termination was an error in law because the impact of the offence on the victim was not considered.

The grounds for the enlargement of time application are that counsel for the DPP did not conduct the prosecution in the lower court, the appeal has merits, and the delay is due to unavoidable administrative hurdles.

The Respondent, who appeared in person, objected to the application. She filed an affidavit saying that the appeal lacked merit because the Magistrate had asked the victim if she had reconciled. The victim had confirmed reconciliation. The Respondent further said that the reason for the delay was unacceptable and that since she and the victim were now living in peace, there was no purpose in pursuing the appeal. The victim is a close relative of the Respondent.

In the absence of the court record, it is impossible to say whether the victim agreed to the reconciliation or not. If she did not, the appeal would be meritorious. Even if I were to accept that however, I cannot accept the reasons given by the State for the delay. A delay of three months to obtain the docket and advise on appeal is not acceptable in a case where the docket came only from Valelevu. This is so, despite the DPP’s absence in the lower court hearing. The case is now 9 months old, and the parties appear to have forged some sort of peace. This is conceded by the State. I see no advantage in enlarging time to allow the dispute to be re-ventilated.

This application is refused.

Nazhat Shameem
JUDGE

At Suva
27^th January 2006