Director of Public Prosecutions v Rabaka [2008] FJHC 43; HAA013.2008 (19 March 2008)

IN THE HIGH COURT OF FIJI
AT SUVA

APPELLATE JURISDICTION

Criminal Appeal Case No.: HAA 013 of 2008

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

AND:

SIMIONE SENIBUA RABAKA
Respondent

Counsel: Mr. S. Vodokisolomone for the State
Respondent in Person

Date of Hearing: Friday 14th March, 2008
Date of Ruling: Wednesday 19th March, 2008

RULING

Background

[1] On 23rd November 2007, the respondent was acquitted after a trial in the Magistrates’ Court at Nausori, of the following charge:

Statement of Offence

LARCENY BY SERVANT: Contrary to section 274(a)(1) of the Penal Code, Act 17.

Particulars of Offence

SIMIONE SENIBUA RABAKA between the15th day of January 2005 and 27th day of October 2005 at N.G. Patel Road, Nausori in the Central Division whilst being employed as a Court Officer by the Ministry of Justice stole $2,881.10 property of Republic of Fiji Islands.

[2] On 14th December 2007, the State filed an appeal against the acquittal, on the following grounds:

(a) That the learned Magistrate misdirected himself on the elements of the offence of Larceny by Servant contrary to section 274(a)(1) of the Penal Code Act Cap. 17.

(b) That the learned Magistrate erred in law and in fact for failing to consider section 214(2) of the CPC Cap.21 that value and ownership is not material and charge need not be amended.

(c) That the learned Magistrate erred in law for misdirecting himself on the evidence and acquitted the accused.

[3] On 18th January 2008, the Court Record was filed and served on the parties.

[4] On 8th February 2008, the matter came before this Court and I enquired with the counsel for the State about the written sanction of the Director of Public Prosecutions which is required by law to appeal an acquittal. I was advised by the counsel that the sanction was in his file in his office.

[5] On 25th February 2008, the State filed the sanction of the Director of Public Prosecutions, which is dated 14 December 2007.

The Issue

[6] The issue is whether the State’s appeal is valid?

[7] Section 308 of the Criminal Procedure Code provides:

"Save as hereinafter provided, any person who is dissatisfied with any judgment, sentence or order of a magistrates court in any criminal cause or matter to which he is a party may appeal to the High Court against such judgment, sentence or order.

Provided that no appeal shall lie against the order of acquittal except by, or with the sanction in writing of, the Director of Public Prosecutions."

[8] The legal requirement of written sanction of the Director of Public Prosecutions to appeal an acquittal has been subject of consideration in Suva City Council v Ramesh Kumar [1996] HAA 40/96S, Prices and Incomes Board v Vijay Narayan [2005] HAM 039/05S, Land Transport Authority v David Satya Anand Chetty [2004] HAA 0018/04(Lab), State v Ratu Epeli Bogitibau Osborne [2007] HAA 78/07S and recently in State v Asish Amit Ram, Criminal Appeal No. 002 of 2006 (Lab).

[9] Shameem J in LTA v Chetty (supra) said:

"Although section 308 does not specify when the consent of the DPP must be filed, I read the word "lies" as similar to the word "exists" or "is permitted." Thus no appeal against acquittal is permitted without the Director of Public Prosecution’s sanction, and in order to grant the court jurisdiction to hear the appeal, the sanction must exist at the time of the filing of the petition of appeal. No clerk of the Magistrates’ Court should accept such a petition without the written sanction of the Director of Public Prosecutions. Without such sanction, the appeal is incompetent and invalid."

[10] In State v Ram (supra), Mataitoga J held:

"Under section 308(1) of the Criminal Procedure Code, Cap.21 [CPC], an appeal against acquittal must be filed with the sanction of the Director of Public Prosecutions". (underlining mine).

[11] In State v Osborne (supra), I held that the untimely filing of the sanction to appeal against acquittal was an incurable defect.

[12] The State attempts to overcome the hurdle of filing timely sanction by saying that the sanction did exist at the time of the filing of the Petition of Appeal but for some unknown reason their clerk who was given the sanction chose not to file it when the Petition of Appeal was filed.

[13] The State further submits that the Court Clerk at the Nausori Court Registry should not have accepted the Petition of Appeal without the sanction. I cannot accept the State’s submissions.

[14] Firstly, there is no legal obligation on a court clerk to guide the State how to file an appeal against acquittal. Secondly, it is the duty of the counsel for the State to ensure that a Petition appealing against acquittal is accompanied with a written sanction of the Director of Public Prosecutions when it is filed in court. The Criminal Procedure Code bestows the duty on the Director of Public Prosecutions to file a competent appeal and every prosecutor in the Office of the Director of Public Prosecutions should know the Code well.

[15] The State’s argument fails to appreciate that it is the timely filing of a written sanction of the Director of Public Prosecutions that validates the Petition of Appeal. Without a valid Petition of Appeal, there is no right of appeal and the Court has no jurisdiction over the matter.

[16] Thus, if a sanction exists but was not filed at the time the Petition of Appeal was filed, the appeal is incompetent and invalid. For these reasons, this appeal is incompetent and invalid and must be struck out.

Result

[17] The appeal is struck out.

Daniel Goundar
JUDGE

At Suva
Wednesday 19th March, 2008

Solicitors:
Office of the Director of Public Prosecutions, Nausori for the State
Respondent in Person