Devi v State [2015] FJHC 1025; HAA26.2015 (23 December 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAA 26 OF 2015

BETWEEN:

VIJAY LATCHMI DEVI
APPELLANT

AND:

THE STATE
RESPONDENT

Counsel : Ms. Nasedra for the Appellant
Mr. J. Niudamu for the Respondent

Date of Hearing : 13th of November 2015
Date of Judgment : 23rd of December 2015

RULING

1. This is an application by the Appellant for an order to extend the time to appeal against the conviction entered by the learned Magistrate of Rakiraki on the 10th of December 2014.
   
2. The Appellant filed an affidavit, stating the grounds for this application. She deposed in the affidavit that the family circumstances that were prevailed after the judgment of the learned Magistrate prevented her to file her appeal on time. She further stated that her husband was not supporting to this appeal as the victim in the proceedings of the Magistrates court is her father-in-law. The change of lawyers in the legal aid office of Rakiraki also contributed the delay of filing her appeal.
3. This application was set down for hearing on 13th of November 2015, where both counsel informed the court that they agreed to conduct the hearing by way written submissions. I then directed the parties to file their respective written submissions, which they filed as per the direction. Having carefully considered the affidavit of the appellant, respective submissions of the parties, I now proceed to pronoun my ruling as follows.
   
4. The Appellant was charged in the Magistrates court for one count of Assault Causing Actual Bodily Harm, contrary to Section 275 of the Crimes Degree. The Appellant pleaded not guilty, wherefore the matter was proceeded for hearing. The learned Magistrate delivered his judgment on 10th of December 2014, where he found the Appellant is guilty for the offence. The Appellant intends to appeal against the conviction.
   
5. Having briefly considered the background of this application, I now proceed to discuss the applicable laws in respect of application in this nature.
   
6. Section 248 (2) and (3) of the Criminal Procedure Code states that;
   
   1. The Magistrates Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.
      
   2. For the purposes of this section and without prejudice to its generality, "good cause" shall be deemed to include —
      
      1. A case where the appellant's lawyer was not present at the hearing before the Magistrates Court, and for that reason requires further time for the 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 of the commissioner of the 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.
         
7. Fiji Court of Appeal in The State v Ramesh Patel (Criminal Appeal No AAU 002 of 2002S) held that;
   

"The principles or criteria to be applied were considered by the Court of Appeal in New Zealand in R v Knight 1995 15 CRNZ 332 at 338. Relevant to whether the application should be granted 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 justices, that is floodgates consideration, and the absence of prejudice to the crown".

8. Justice Shameem in Tome Beuka v The State (2002) FJHC 110; HAA0013D.2002S (14 May 2002) held that;
   

"In considering an application for leave to appeal out of time, a court generally considered 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".

9. Having considered the affidavit and the written submissions of the Appellant, I find the reasons given for the delay are not compelling. The Appellant was represented by a counsel from Legal Aid Commissions. She was properly informed about her right of appeal by the learned Magistrate in his sentence. I am mindful of the fact that the dispute in this action is between the Appellant and her father-in-law. It is a dispute of domestic nature. However, she had legal representation. Her family commitment and the circumstances after the judgment could not be considered as a compelling factor to justify the delay of nearly six months.
   
10. The learned counsel for the Appellant made no submissions to satisfy the court that the appeal has a prospect of success apart from merely stating the grounds for the appeal. A party who seeks the court intervention to extend the time for appeal is required to satisfy the court that the appeal has a prospect of success. Hence, it is my opinion that the Appellant has failed to satisfy the court that the appeal has a prospect of success if the leave is granted.
    
11. In conclusion, having considered the reasons discussed above, I refuse this application to extend the time for appeal of the Appellant.
    
12. 30 days to appeal to the Fiji Court of Appeal.
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
23rd of December 2015

Solicitors: Office of the Director of Public Prosecutions
Office of Legal Aid Commission