State v Nasevani [2010] FJHC 253; HAA015.2010 (19 July 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 015 OF 2010

BETWEEN:

THE STATE
Appellant

AND:

1. ALIPATE NASEVANI
2. SAULA NAVUKA
Respondents

Mr. M. Korovou for the State
Respondents in Person

Date of Hearing: 15 July 2010
Date of Judgment: 19 July 2010

JUDGMENT

[1] On the 25th March 2010 in the Magistrates Court at Sigatoka, the two respondents pleaded guilty to two offences of assault occasioning actual bodily harm. The victim of the assaults is the sister of the first accused and the daughter of the second accused.

She was visiting from Australia, where she lives and the two accused being unhappy with her lifestyle "beat her". She returned to Australia on the same day of the hearing in the Sigatoka Court.

[2] The two accused, both farmers, told the Court that they had tried to reconcile with the victim. In response the learned Magistrate said this: "it is hoped that you will all reconcile over time given the family situation. Terminate proceedings". Nothing less, nothing more.

[3] The Director of Public Prosecutions ("DPP") now appeals that decision by the Magistrate on one ground alone, namely –

"That the learned Magistrate erred in law in terminating the proceedings after the guilty plea as the termination of the proceeding contravened the requirements of section 154 of the Criminal Procedure Decree of 2009."

[4] Whatever the merits of the application, the DPP himself "errs in law" on two counts:

(i) An appeal against an order for acquittal (if the accused were in fact acquitted) can only be appealed with the sanction in writing of the DPP pursuant to section 246(2) of the Criminal Procedure Decree. The DPP in this case purports to sanction the appeal by virtue of section 308(1) of the Criminal Procedure Code which at the time of the purported sanction (20 April 2010) was a section no longer applicable, the Code having been repealed.

(ii) Section 246(7) of the Criminal Procedure Decree clearly states that no right of appeal shall lie until the Magistrates Court has finally determined the guilt of the accused persons and therefore the DPP has no right of appeal.

[5] In this case proceedings were "terminated" and no decision was given by the Magistrate as to whether the accused persons, having pleaded guilty, were acquitted or not. The question therefore is: does termination of proceedings equate with an acquittal?

[6] In dealing with this exact question, Winter J said in Savou v State – HAA 111 of 2004 "a stay or termination of proceedings should be deemed an acquittal because it is as if the prosecution was (sic) never commenced. In appropriate circumstances where genuine reconciliation has promoted a just result the parties should be allowed to settle their differences, reconcile and move on without the baggage of accusation and conviction". This must be correct. Despite the guilty plea, dismissal of a case must mean just that: proceedings are dismissed – the "slate wiped clean". Given the wide range of sentencing provisions now imported into our legal system by the Sentencing and Penalties Decree 2009 and the explicit guideline in section 4(1) (d) of that Decree ("to establish conditions so that rehabilitation of offenders may be promoted or facilitated"), then the Magistrate obviously was intending to give effect to those provisions by dismissing the two charges.

[7] The point of the DPP’s appeal (were it validly sanctioned) is that the Magistrate did not follow the provisions of section 154 of the Criminal Procedure Decree, 2009 in dealing with reconciliation. By section 154(2) a Court can only proceed to promote reconciliation after "ensuring that the victim of violence does not submit to any proceedings being undertaken...by reason of pressure being exerted in any form". Such requirement obviously requires hearing from the victim; her consent as it were; and this was not done. The victim had left the jurisdiction when the case was called and the accused persons merely said that they had tried to reconcile, which suggested that their attempts had been rebuffed.

[8] To be fair to the learned Magistrate, the section does not insist on effected reconciliation; it is a section that promotes reconciliation and it is quite clear that the Magistrate had such promotion in mind when he purported to terminate proceedings. It was in this Court’s view a perfectly proper and merciful intent; sadly however he fell into error by (1) not having the consent of the victim and (2) using the word "terminate" rather than "dismiss".

[9] Under the old law (section 163 Criminal Procedure Code) the Court was empowered to order proceedings to be stayed or terminated, and it is obvious that this experienced Magistrate had these powers in mind and not the new provision which had only been in effect for 6 weeks prior to this hearing: the new powers being to stay or dismiss.

[10] It is a point of interest that these proceedings should have rung the "Domestic Violence" bell in the Magistrate’s head – and under the provisions of the Domestic Violence Decree 2009 reconciliation is very much secondary to the wellbeing of the victim. If for this reason alone, the views of the victim should have been sought before an order of dismissal was made.

[11] It is ironical that such a seemingly simple case in which the Magistrate was obviously trying to effect justice with mercy, should lead to so many interesting questions of law namely, validity of consent, errors in terminology, the effect of a "dismissal", the bringing into play of the Domestic Violence Decree, the absence of victim’s consent etc.

[12] The power of the DPP to appeal an acquittal is an awesome power and one therefore that should be exercised with the utmost thoughtful discretion. Although the Magistrate in this case did fall into procedural errors, his evident motives were merciful and just and the result not one that would be called into question by any right minded member of the community. The decision of the DPP to appeal in such a trivial case is heavy-handed and pedantic, but that is his discretion which will not be interfered with by the Courts.

[13] Given that the DPP obviously intended to sanction the appeal, albeit not done by relevant authority, I allow the appeal to proceed.
There is merit in the ground advanced by the DPP but pursuant to section 256(2)(f) of the Criminal Procedure Decree, I dismiss the appeal because there has been no substantial miscarriage of justice.

[14] For the removal of doubt, I order that the respondents be acquitted and discharged and encouraged to reconcile with their sister and daughter respectively, no matter what they think of her lifestyle.

Paul K. Madigan
Judge

At Lautoka
19 July 2010