State v Cakacaka [2012] FJHC 1356; HAA014.2012 (5 October 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA 014 OF 2012

BETWEEN

STATE
[Appellant]

AND:

JOAPE CAKACAKA
[Respondent]

Counsel : Mr Babitu for the Appellant
Ms Q.Vokanavanua for the Respondent

Date of Judgment : 05th October 2012

JUDGMENT

1. This is an appeal filed by the State.
   
2. The Respondent was originally charged before the Magistrate of Sigatoka for Careless Driving punishable under Section 99(1) and 114 of the Land Transport Act 35 of 1998.
   
3. Prosecution called the investigating officer PC Rohit and tendered 4 documents and closed the case for the Prosecution. Defence made an application to not to call for the defence because there is no case to answer. After hearing submissions from both sides the Magistrate decided that there is no case to answer and the Accused was acquitted.
   
4. Being aggrieved with the order of acquittal by the Magistrate the State had preferred an appeal to this Court.
   
5. The State submits following grounds of appeal:
   

"THAT being dissatisfied with the decision of the Magistrates' Court of Fiji at Sigatoka, the Director of Public Prosecutions hereby gives you notice that he wishes to appeal against the order of acquittal as follows: (sic)

That the Learned Magistrate erred in law in that he misapplied the test for "no case to answer" pursuant to Section 178 of the Criminal Procedure Decree 2009 when he found the presence of a defence in the Respondent's caution interview to mean that a prima facie case was not made out."

"Therefore the Appellant prays that this Honourable Court be please to quash the order of Acquittal and have the matter set for re-trial."

6 Section 249 of the Criminal Procedure Decree 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."

7. It is noted that in most of the appeal the State files a 'General' grounds of appeal. Hence I decided to consider the grounds of appeal in the light of Section 249 of the Criminal Procedure Decree.
   
8. This issue was discussed in many cases, recently in HAA004 of 2012 by me I quote some of the authorities cited in the said judgment.
   
9. 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.
   
10. 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."

11. 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."

12. 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......"

13. The law is very clear when an appeal is filed, the Appellant should make a concise statement of the grounds upon which it is alleged that the decision of the Magistrate.
    
14. Further in this appeal the Appellant is praying for a re-trial at the stage of no case to answer decision. This Court is of the view if the appeal is successful it should be sent back for continuation of trial not re-trial.
    
15. Unlike the laymen preferring an appeal the State should be more precise on the grounds of appeal and the law.
    
16. Considering the grounds of appeal before the Court this Court finds that the State had not complied with Section 249 of the Criminal Procedure Decree.
    
17. Considering the decision made by the Magistrate in the substantive matter I find that the Magistrate had very little evidence before him, the Prosecution had not submitted sufficient evidence to prove the case. Among other matter the defence suggested that there was a mechanical fault in the vehicle. The Investigator had not checked the vehicle for mechanical faults and no evidence led in this regard.
    
18. At the end of the Prosecution there was an application by the defence for no case to answer. Both parties made submission. I perused both submissions and the Ruling of the Magistrate carefully.
    
19. The Learned Magistrate had fairly considered the submissions made by the parties and decided that there is no case established by the Prosecution for the Accused to answer.
    
20. The Magistrate had stated reasons for his decision. I find the conclusion of the Magistrate is just and fair hence I endorse the decision made by the Learned Magistrate and decide that the Prosecution had not established a case for the Accused to answer. Accordingly I find there is no merit in this appeal.
    
21. For the reasons stated above I dismiss the appeal.
    

S. Thurairaja
Judge

At Lautoka
5th October 2012

Solicitors: The Office of the Director of Public Prosecution for Appellant
Messrs Iqbal Khan & Associates for the Respondent