State v Gautam [2010] FJHC 387; HAM100.2009 (9 September 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO. 100 OF 2009

BETWEEN:

STATE
APPLICANT

AND:

SAILESH PRASAD GAUTAM
RESPONDENT

Counsel: Ms. J. Cokanasiga for Applicant
Mr. S. Kumar for Respondent

Date of Hearing: 18th August 2010
Date of Ruling: 09th September 2010

RULING

1. This is an application by the State to enlarge time to appeal.
   

Background

2. The accused Respondent Sailesh Prasad Gautam was charged on the following grounds before the Magistrate of Nausori.
   

"Statement of offence (a)

RAPE: Contrary to Sections 149 and 150 of the Penal Code Cap 17

Particulars of offence (b)

SAILESH PRASAD GAUTAM s/o Kampta Prasad between 1st day of August 2005 and 31st day of October 2006 at Nausori in the Central Division had unlawful carnal knowledge of a girl namely FARISHA HUSSEIN d/o SIYAD WAJIB HUSSEIN without her consent.

3. The above charge was amended on 12.02.2009 as follows:
   

"Statement of offence (a)

RAPE: Contrary to Sections 149 and 150 of the Penal Code Cap 17

Particulars of offence (b)

SALESH PRASAD GAUTAM s/o Kampta Prasad between 1st day of August 2005 and 31st day of August 2005 at Nausori in the Central Division had unlawful carnal knowledge of a girl namely FARISHA HUSSEIN d/o SAIYAD WAJIB HUSSEIN without her consent.

4. The State appealing against the order of acquittal of the accused Respondent. Now I peruse the said order.
   

"28 September 2009

Prosecution: Insp. Ali for DPP

Accused: Present Mr. Kumar

Prosecution: Subpoena not served.

Investigating Officer present Constable Kaium:

Cannot get Complainant and mother. Went to 4 addresses and made numerous attempts. Want to withdraw order.

Prosecution: Section 201 (2) (b) (ii) – we cannot locate the victim and mother. Cannot guarantee that accused will be recharged.

Mr. Kumar: Discharge under Section 201 (2) (b) (i). Case almost completed. Trial De novo. Complainants are not interested. Accused has been turning up. Matter hanging on Accused's head for sometime. The charge is not specific to raise specific defence. Finishing expedition. Seek acquittal.

Prosecution: We just used the section. Leave to Court to decide.

Court: The Court having heard the Prosecution and the Counsel of the accused has noted their respective submission. The accused is charged with a serious offence which he is alleged to have been committed in 2005. It is some (9) years since the alleged offence. The accused is still on trial. The Court notes the Prosecution's position and their application. They have attempted to locate the victim and her mother. They cannot be located. The Court notes the attempt made by the prosecution to locate the complainant. They seemed to have made considerable efforts to locate the complainant. They could not locate her. The Court notes the need to bring some matters to finality. In this case the Court cannot let the charge hanging and the accused to be under the impression that one day they might again take him to Court. The Prosecution has made considerable attempt to locate the complainant without success. The accused needs justice as well.

The Court acquits the accused for the charge under Section 201 (2) (b) (1). 28 days to appeal."

5. As per the above order the learned Magistrate has acquitted the accused on the 28th September 2009. Aggrieved with the said order the State filed an appeal on 27th October 2009 on a mere calculation. The appeal was filed out of time. The State moves Court an explanation that the appeal out of time be accepted and the order of the Magistrate should be subjected to an appeal.
   
6. Now I consider the appeal out of time. The law provides that the appeal should be filed within 28 days from the date the order of the Magistrate.
   

Leave to Appeal out of time

7. The relevant Legislation is found in Section 310 of the Criminal Procedure Code. That Section was discussed at length in The State v Patel [2002] FJCA 13; AAU0002U.2002S (15 November 2002) where their Lordships adopted criteria detailed by the New Zealand Court of Appeal in R v Knight [1995] 15 CR NZ 332 at 338.
   
8. In Knight the court observed that the strength of the proposed appeal, the practical utility of the remedy sought, the length of any delay, the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice together with the absence of prejudice to the respondent were all relevant considerations.
   
9. In Chandra Kant Umaria v Rauhanisi Ofa Albert, Civil Appeal HBA 9 and 10/2000 and HBM 0024 of 1999L Justice Gates describes the applicable principles for civil appeal enlargement applications. The same principles describe the application of Section 310(2) of the Criminal Procedure Code:
   

(1) The reason for the failure to comply

(2) The length of the delay

(3) Whether there is a question which justifies serious consideration

(4) If there has been substantial delay, whether any grounds of appeal have such merit that they will probably succeed?

(5) The degree of prejudice to the respondent in enlarging time.

10. I wish to add one more to the above list that is whether the appellant will succeed in the proposed appeal. Otherwise we will be wasting time and money in this process of enlarging the time of appeal.
    
11. In this application to enlarge the time of appeal the State has filed an affidavit from Seini Korosaya Puamau, Acting Principal Legal Officer of the Director of Public Prosecution.
    
12. She explains the delay, among other reasons she states as follows:
    

"20. That due to my lack of experience, I directed that the Petition of Appeal be filed in the Magistrate's Court of Fiji at Suva"

"21. That in fact, the Petition of Appeal ought to have been filed in the Magistrate's Court of Fiji at Nausori".

13. The office of Director of Public Prosecution is one of the Prime departments of the Government and they are maintained by the public fund and officers are professionals. They are answerable and they should be more careful and cautious towards dealing with public, especially in criminal cases and appeals where the public are directly affected. I consider reasons stated above by the State are unacceptable. I presume that they have a proper line of supervision and if not the DPP is answerable.
    
14. Before I consider granting leave to enlarge the time to appeal, I would like to consider whether the appellant, State will succeed in the proposed appeal.
    

The Strength of the proposed appeal

15. Now I consider the proceedings in the Magistrate Court. After preliminary procedures followed the trial was fixed against the accused Respondent to be on 12th and 13th February 2009. On the 12th February 2009 the trial commenced. The virtual complainant and her mother gave evidence. The State Counsel had move for a date to summon two more witnesses on 25.02.2009.
    
16. On the 25.02.2009 the trial was adjourned to 25th March 2009 and on the 11th March 2009 Prosecution moved to vacate the trial date on 25.03.2009 due to unsuitable to the medical doctor. Trial was postponed to 13th May 2009.
    
17. On the 13th May 2009 further trial proceeded and the prosecution called DC Ami Chand, DC Abdul K Ali and prosecution moved one month to bring the medical officer who was away in Australia. Defence Counsel had objected for the adjournment. But the Learned Magistrate had given an adjournment till 01.07.2009.
    
18. Due to the elevation of the learned magistrate to the High Court, a new Magistrate was appointed to the Magistrate Court of Nausori. On the 1st July 2009, the accused was absent but represented by his Counsel. It was observed that the Prosecution witness was not available on that date. Magistrate considering all ordered a trial de novo and fixed a date on 28.09.2009.
    
19. On the 28th September 2009, Prosecution informed the Court that summons were not served and moved to withdraw the matter under Section 201 (2) (b) (ii) of the Criminal Procedure Code. The Prosecutor had informed the Court that they cannot locate the victim. (Emphasis added). Further the Prosecution cannot guarantee that the accused will be recharged.
    
20. Considering the submission of the State Counsel before the High Court and the proceedings before the Magistrate, I find that the submission of State Counsel is incorrect. I reproduce the submission of the State and the relevant proceedings in the Magistrate's Court.
    

State submission:

21. "On the 28th of September 2009 Police Prosecution upon instruction asked for an adjournment under Section 202 of the Criminal Procedure Code as summons were not served. The prosecutions application was denied and the accused was acquitted under Section 201 (2) (b) (1) of the Criminal Procedure Code".
    

Proceedings of the Magistrate's Court states as follows:

"28 September 2009

Prosecution: Insp. Ali for DPP

Accused: Present Mr. Kumar

Prosecution: Subpoena not served.

Investigating Officer present Constable Kaium:

Cannot get Complainant and mother. Went to 4 addresses and made numerous attempts. Want to withdraw order.

Prosecution: Section 201 (2) (b) (ii) – we cannot locate the victim and mother. Cannot guarantee that accused will be recharged".

Counsel who appeared for the accused have objected and submitted as follows:

"Mr. Kumar: Discharge under Section 201 (2) (b) (i). Case almost completed. Trial De novo. Complainants are not interested. Accused has been turning up. Matter hanging on Accused's head for sometime. The charge is not specific to raise specific defence. Finishing expedition. Seek acquittal".

22. The Learned Magistrate has considered the submission and decided under Section 201 (2) (b) (1) and acquitted the accused from the proceedings.
    
23. Now I consider Section 201 of the Criminal Procedure Code. Section 201 states as follows:
    

"(1). The Prosecutor may with the consent of the court at any time before a final order is passed in any case under this Part withdraw the complaint.

(2) On any withdrawal as aforesaid –

(a) where the withdrawal is made after the accused person is called upon to make his defence, the court shall acquit the accused;

(b) where the withdrawal is made before the accused person is called upon to make his defence, the court shall subject to the provisions of section 210, in its discretion make one or other of the following orders:-

(i) an order acquitting the accused;

(ii) an order discharging the accused.

(3) An order discharging the accused under paragraph (b) (ii) of subsection (2) shall not operate as a bar to subsequent proceedings against the accused person on account of the same facts".

24. Section 210 states as follows:
    

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused".

25. The Learned Magistrate after considering the fact that the virtual complainant and her mother who are crucial witness to the Prosecution cannot be traced. State Counsel submits that the Prosecution is ready for the trial.
    
26. Now I peruse the affidavit of D.C. 2090 Kaium filed by the State. He submits that he is the investigating officer in this case (Nausori Criminal Case No. 504/07). I refer to the last paragraph.
    

"22. That as of today, we have information that she may be residing in Toorak, Suva but we have yet to ascertain the exact address in Toorak".

27. The above situation clearly shows that the State is not ready with the Prosecution witnesses.
    
28. Consider the following factors:
    

(a) The case was delayed in the Magistrate's Court because of the Prosecution.

(b) Submitting incorrect facts to the High Court.

(c) Even at this stage the Prosecution is unable to find out the where about of the virtual complainant and her mother.

I am reluctant to believe that the Prosecution will take sufficient interest in continuing with the trial.

29. State Counsel who appeared in the High Court submits that the offence of Rape is a serious crime and the accused cannot just get away. I agree with learned State Counsel that the offence of Rape is a serious crime but the Prosecution has not taken reasonable interest in prosecuting the case against the accused. If they have considered this as a serious offence as stated by State Counsel they could have taken more interest and brought their witnesses without dragging the case for a longer period.
    
30. I am mindful of the gravity of the offence but in the same time the accused person's interest also considered as stated by the Learned Magistrate. The accused needs justice as well.
    
31. After careful considering all available factors I refuse to grant an enlargement of time.
    

S Thurairaja
Judge

At Suva

Solicitors
Office of the Director of Public Prosecution for State
Mr. S. Kumar for the Respondent