State v Khan [2012] FJHC 1351; HAA04.2012 (3 October 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAA 004 OF 2012

BETWEEN

STATE

AND:

MOHAMMED ILIYAZ KHAN

Counsel : Mr Babitu for the Appellant
Mr. Tunidau for the Respondent

Date of Judgment : 03rd October 2012

JUDGMENT

1. This is an appeal by the State.
   
2. The Respondent above named was originally charged at the Magistrate Court on one Count of Larceny by Servant under Penal Code and one Count of Theft under Crimes Decree.
   
3. At the conclusion of the trial the learned Magistrate had acquitted the Accused on both charges, being aggrieved with the said order State had preferred an appeal to this Court.
   
4. The Counsel for the Respondent raised an objection that the Appellant State had not complied with Section 249 (1) of the Criminal Procedure Decree.
   
5. State Counsel moved time to file amended papers and filed Amended Petition of Appeal.
   
6. Counsel for the Respondent objected for the same and submitted that the Prosecution, even with amended papers had not complied with the legal requirements as stated in 249 (1) of the Criminal Procedure Decree.
   
7. State moved time to respond to the Preliminary Objection but till the date of hearing have not filed any response. Even at the hearing the State was unable to reply to the Objection raised by the Counsel for the Respondent.
   
8. Considering Section 249 (1) of the Criminal Procedure Decree and states as follows:
   

249. — " (1) Every petition shall contain a concise statement of the grounds upon which it is alleged that the decision of the Magistrates Court has erred on the facts of the case or the applicable law."

9 State had filed a single ground of appeal in the original and the amended Petition of Appeal. It reads as follows:

"THAT the learned Trial Magistrate erred in law and in fact by failing to adequately consider and apply the law relating to circumstantial evidence during the course of his analysis of the evidence led at the trial".

10. The question before the Court is whether the Appellant State had complied with the mandatory requirements stated in Section 249 (1) of the Criminal Procedure Decree.
    
11. In R v Kalia and Others (1974) 60 Cr. App R.20 Lord Justice Roskill held that proper compliance with the Rules and procedure regarding the giving and amending grounds of appeal is essential.
    
12. In R v Upton, R v Hendry (1973) 3 All ER 318, Lawton LJ said:
    

"It is important from the point of view of the proper administration of this court that grounds of appeal should be drafted carefully and accurately."

13. Further the Court observed in R v Upton (Supra):
    

"The court also wishes to call attention to the fact that the grounds of appeal mean something and counsel ought not to assume that any ground of appeal which is not set out will be entertained by this court. It follows that having given leave for these grounds of appeal to be varied,the appellants will have to keep to the grounds of appeal now before the court."

14. Lawton LJ gave practice direction in (1973) 53 Cr. App. R. 838"
    

"It is important from the point of view of the proper administration of this court that grounds of appeal should be drafted carefully and accurately."

Further his Lordship had stated:

"The court also wishes to call attention to the fact that the grounds of appeal mean something and counsel ought not to assume that any ground of appeal which is not set out will be entertained by the court......"

15. Considering the ground of appeal filed by the State this court is of the view that it has not complied with the Section 249 of the Criminal Procedure Decree.
    
16. When an appeal filed especially by the State the grounds should clearly defined and precise if not it will amount to violation of the requirements of Section 249 of the Criminal Procedure Decree.
    
17. Anyhow considering the judgment pronounced by the learned Magistrate and the evidence at the trial I find the Prosecution had not proved the elements of the offence hence I agree with the learned Magistrate.
    
18. Considering all the appeal is dismissed.
    

S. Thurairaja
Judge

At Lautoka
3rd October 2012

Solicitors: The Office of the Public Prosecution for the Appellant
Kevueli Tunidau Lawyers for the Respondent