Seavura v State [2010] FJHC 376; HAM007.2010 (2 September 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAM 007 OF 2010

BETWEEN:

KELEMEDI SEAVURA

AND:

STATE

Counsel: Mr. Lee - for the Applicant
Mr. Qica - for the Respondent

Date of Hearing: 13.08.2010, 30.08.2010
Date of Sentencing: 02.09.2010

RULING

1. The appellant has preferred an appeal against his conviction by the Learned Magistrate of Labasa in case number 426/07.

2. The appellant was charged in the Magistrates Court as follows:

(COMPLAINT BY PUBLIC OFFICER)

FIRST COURT

Statement of Offence

DEFILEMENT OF GIRL UNDER 13 YEARS OF AGE: Contrary to Section 155(1) of the Penal Code, Cap 17.

Particulars of Offence

KELEMEDI SEAVURA on the 28th day of March 2007 at Dreketi in the Northern Division has unlawful carnal knowledge of LOSALINI LEWAKULATI, a girl age 12 years and 16 days old.

SECOND COUNT

Statement of Offence [a]

DEFILEMENT OF GIRL UNDER 13 YEARS OF AGE: Contrary to Section 155 (1) of the Penal Code, Cap 17.

Particulars of Offence

KELEMENI SEAVURA on the 29th day of March 2007 at Dreketi in the Northern Division had unlawful knowledge of LOSALINI LEWAKULATI, a girl age 12 years and 17 days old.

3. The appellant was found guilty after a full trial on the 4/11/08 and on the 7/11/2008 the Learned Magistrate imposed 3 years imprisonment on each count and ordered sentence to run concurrently. It is clearly mentioned in the sentence that he has 28 days to appeal.

4. Throughout the trial the appellant was represented by a counsel from the Legal Aid Commission. On perusing the Magistrates Court record, I find the case was fully contested, where the counsel for the accused appellant filed written submission to no case to answer and written submission to mitigate the sentence.

5. The appellant filed an appeal on the 5th March 2010.

Leave to Appeal Out of Time

6. The applicant made his request to appeal out of time on 5th March 2010 which is 1 year 4 months and 24 days after the sentence. He therefore seeks leave of the court to appeal out of time, of his sentence of 3 years imprisonment.

7. The applicant states that the reason he appealed late was because he had the honest belief that until he received a copy of the Court record then he would appeal after perusing and stating his ground(s) of appeal.

8. Now I consider the law.

Section 248 (1) of the Criminal Procedure Decree states that every petition of appeal must be lodge within 28 days of the date of the decision appealed against. Every appeal shall be in the form of a petition in writing signed by the appellant or the appellant's lawyer, and within 28 days of the date of the decision appealed against-

(a) it shall be presented to the Magistrates Court from the decision of which the appeal is lodge;

(b) a copy of the petition shall be filed at the registry of the High Court; and

(c) a copy shall be served on the Director of Public Prosecutions or on the Commissioner of the Fiji Independent Commission Against Corruption.

9. Nonetheless section 248(2) of the Criminal Procedure Decree states:

"The ... High Court may at any time, for good cause, enlarge the period of limitation prescribed by this section.

Section 248(3) of the same decree states that "For the purpose of this section and without prejudice to its generality, "good cause" shall be deemed to include-

1. a case where the appellants lawyer was not present at the hearing before the Magistrates Court and for that reason requires further for preparation of the petition;
   
2. any case in which a question of law of unusual difficulty is involved;
   

100. a case in which the sanction of the Director of Public Prosecutions or the Commissioner of Fiji Independent Commission Against Corruption is required by any law;
     

4. The inability of the appellant or the appellant's lawyer to obtain a copy of the judgment or order appealed against and a copy of the record, within a reasonable time of applying to the court for these documents.
   

10. In the case of Tome Beuka v State [2002] FJHC 110; HAA0013D.2002S, Shameem J stated at paragraph 3 "In considering an application for leave to appeal out of time, a court general considers the length of the delay, the reasons for the delay, whether the appeal has any prospects of success and whether an injustice will arise if leave is refused."

11. In the Court of Appeal case of State v Patel [2002] FCA 13; AAU0002U.2002S, the Court stated the following while determining the issue of an application to appeal out of time.

"[4] The principles to be applied when considering an application for leave to appeal out of time are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for the delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates consideration, and the absence of prejudice to the other party."

Appellant's Ground of Appeal

12. The applicant appeals conviction solely on the ground that:

(i) The learned Magistrate erred in law by conviction applicant without correctly and fairly warning himself of the dangers by selectively accepting victims evidence as more credible and reliable and further totaling disregarding applicants testimony.

13. Considering the period of delay in appeal is one year and 4 months. The appellant has given the reason as follows:

"Appellant was given 28 days to appeal the Court's decision. However, he did not appeal until 1 year after he was sentenced. This is because he had the honest belief that until he received a copy of the Court record then he would appeal after perusing and stating his ground(s) of appeal."

14. Considering the above, the reason for the delay in appeal for 1 year and 4 months in a sentence of 3 years is unacceptable in any standards.

15. Further as a matter of precaution, I considered the merit of the appeal, I find no reason to shock the conscious of the appellate court.

16. Considering all above factors, I refuse to enlarge the period of appeal.

17. Application to enlarge the time of appeal is refused accordingly. Appeal also dismissed.

S. THURAIRAJA
JUDGE

At Labasa
2 September 2010