State v Napolione [2016] FJHC 315; HAM142.2015 (19 April 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION
CRIMINAL MISCELLANEOUS CASE NO.: HAM 142 OF 2015

BETWEEN:

STATE
APPLICANT

AND:

SAMUELA NAPOLIONE
RESPONDENT

Counsel : Ms. Kiran for Applicant
: Ms. S. Nasedra for Respondent

Date of Hearing : 5th April 2016
Date of Ruling : 19th April 2016

RULING

1. The State filed an application for leave to appeal out of time in respect of Criminal Case No. 724/2013 from the Lautoka Magistrates Court.
   
2. The Respondent was charged with a count of Common Assault contrary to Section 274 of the Crimes Decree, 2009. This matter was handled by the Police Prosecution at the Magistrates Court.
   
3. The Respondent pleaded not guilty to the charge and the matter proceeded to trial before the Learned Magistrate, Mr. Raramasi on the 07th of April 2015.
   
4. For the prosecution case, only the victim gave evidence whilst her medical report was tendered in by consent thus the prosecution case was concluded.
   
5. At the end of the prosecution case, it was ruled that there is a case to answer hence called the Respondent for his defence. The Respondent opted to remain silent thus the end of defence case.
   

Law

6. Section 248 of the Criminal Procedure Decree lays down the procedure to be followed in filing appeals in the high Court:

248.-(1) 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 lodged.

(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.

(2) The Magistrates Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.

(3) For the purposes of this section and without prejudice to its generality, "good cause" shall be deemed in include –

(a) 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;

(b) any case in which a question of law of unusual difficulty is involved;

(c) 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;

(d) 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. The principles for an extension of time to appeal are settled. The Supreme Court in Kumar v State; Sinu v State [2012] FJSC 17; 2 CAV0001.2009 (21 August 2012) summarized the principles at paragraph [4]:

"Appellate courts examine five factors by way of a principled approach to such applications. These factors are:

(i) The reason for the failure to file within time.

(ii) The length of the delay.

(iii) Whether there is a ground of merit justifying the appellate courts consideration.

(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?

(v) If time is enlarged, will the respondent be unfairly prejudiced?"

8. More recently, in Rasaku v State [2013] FJSC 4; CAV0009, 0013.2009 (24 April 2013), the Supreme Court confirmed the above principles and said at paragraph [21];

"These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargement of time. Ultimately, it is for the court to uphold its own rules, while always endeavoring to avoid or redress any grave injustice that might result from the strict application of the rules of court."

Appeal against acquittal

9. The Applicant (State) intends to file its appeal on following grounds:

1. That the learned Magistrate erred in law in failing to properly identify the elements of the charge before him;
   
2. The learned Magistrate erred in law and in fact in failing to properly consider and evaluate the evidence relevant to the elements of the charges before him, when he found the Respondent not guilty;
   
3. That the learned Magistrate erred in law and in fact in making a finding that the conduct of the accused could be proven by the investigation officer who had interrogated the accused;
   
4. That the learned Resident Magistrate erred in law and in fact in concluding that the due process of the law was not complied for the reason that the case was a charge and summons case and the accused was not warned for prosecution before the charge is laid;
   
5. The learned Magistrate erred in law and in fact in acquitting the Respondent who did not mount a defence in the defence case, having found that all elements of the offence were met at the stage of No Case To Answer.
   

Analysis

Length of Delay

10. This application was filed on the 28th of July, 2015. The Respondent was acquitted on the 11th of May 2015. Therefor the delay is about 43 days.

Cause of Delay

11. Applicant cites various reasons for the delay. Police Prosecutors had handled the case at the Magistrates Court. After being dissatisfied with the decision of acquittal by the learned Magistrate, the Divisional Prosecution Officer/West had referred the file to the DPP's office. DPPs office had received the file on the 1st of June 2015. Once the file reached the DPPs Office, it is allocated to a legal officer to advice DPP on the merits of appeal who had then decided that the matter be appealed.

12. Unlike appeals filed by ordinary private citizens, delays in the process of filing appeals by the State may be inevitable and reasons for them are quite understandable. Office of the DPP receives large number of files, sometimes with complicated legal issues, to be dealt with within short time and with limited number of officers. Police prosecutors cannot be expected to keenly attend to files in the same way a private aggrieved party would do. The decision to appeal is ultimately taken in the interest of the state or the public. In these circumstances, delay of 43 days' is not unreasonable.

Prejudice

13. No prejudice will be caused to the Respondent by granting the application for an enlargement of time. The delay is only 43 days. The right to a fair trial should be available equally to both parties.

Likely Success on Appeal

Ground 1 -That the learned Magistrate erred in law in failing to properly identify the elements of the charge before him.

14. In light of the above passage, the learned Magistrate had concluded that there was no evidence adduced to prove that the accused had acted intentionally or recklessly. The learned Magistrate further stated that this (intention/ recklessness) could be proved by the investigating officer who had interrogated the accused.

15. The elements prosecution needs to prove are as follows:-

(a) A person;

(b) Unlawfully;

(c) Assault;

(d) Another person.

16. To establish the offence of Common Assault, prosecution is not burdened to prove that the accused acted either intentionally or recklessly. These are not elements of the offence as per the provision of Section 274. Learned Magistrate erred in law in finding that the Prosecution has to prove the intention or recklessness when the law does not require that it be elements of the offence. Furthermore, there is no requirement in law that complainant's testimony shall always be corroborated. If the learned Magistrate had reasons to believe the Complainant, he could have acted upon her evidence alone to bring about a conviction. There is merit in this ground and hence there is very high likelihood of this ground succeeding if leave is allowed.

Ground II – The learned Magistrate erred in law and in fact in failing to properly consider and evaluate the evidence relevant to the elements of the charges before him, when he found the Respondent not guilty.

17. The identity of the accused is not an issue in this case. The complainant stated that the accused had pushed and punched her. She had reported the matter immediately thereafter. The fact that she was pushed and punched shows that the accused had applied/used unlawful force.

18. In this case, the complainant stated that when she enquired about the phone calls from the accused, he responded that she should mind her own business. She stated that "she followed the accused through the door as she was trying to know the caller when the accused pushed her. She sat down beside the door and the accused punched her on the head." There is no apparent reasonable justification to push the complainant and punch her head.

19. When the Complainant was medically examined, there was no abrasions/laceration or bruises seen. However, there was tenderness noted in the occipital area. There was swelling noted at the back of Complainant's head which could have been used to corroborate the Complainant's evidence. In light of the above, I find that there is prima facie evidence to prove the charge of common assault. The learned Magistrate had apparently failed to properly evaluate the evidence before him. Therefore, in appeal, he could be found at error in law and applying the facts to the law.

Ground III– That the learned Magistrate erred in law and in fact in making a finding that the conduct of the Accused could be proven by the investigation office who had interrogated the Accused.

20. The conduct or acts of the accused could be established by evidence of the complainant or any other independent witnesses (there were none in this case) who would give evidence to describe the actions of the accused at the time of the alleged offence. In this case, the complainant gave evidence of what had transpired on the day of the alleged incident which describes the conduct of the accused; pushing and punching her head. Therefore, there is no need for prosecution to call the investigation officer to prove the conduct of the accused.

Ground IV – That the learned Magistrate erred in law and in fact in concluding that the due process of the law was not complied for the reason that the case was a charge and summons case and the Accused was not warned for prosecution before the charge is laid.

21. The fact that there is a complaint made is sufficient to lay or file charges after considering the evidence of a particular case. The accused was caution interviewed on 14/11/13 and the charging summons was filed on 16/12/13 for the matter to be called on 10/2/14. This shows that due process of the law was complied with in the filing of the charges against the accused.

Ground V – The learned Magistrate erred in law and in fact in acquitting the respondent who did not mount a defence in the defence case, having found that all elements of the offence were met at the stage of No Case to Answer.

22. To find that there is a case to answer, the learned Magistrate, at the closure of the prosecution case, must have come to the conclusion that there was sufficient evidence for a reasonable tribunal to convict and there was evidence on each element of the offence. By holding that there is a case to answer, he had basically accepted that the offence was proved unless the accused otherwise discredited the prosecution version or valid defence is set up, which in this case did not happen. However, Magistrate found the accused not guilty.

Conclusion

23. There is no right to appeal when the time limit stipulated by the Criminal Procedure Decree has expired. However, the delay is not unreasonable. And, also, there is merit in the grounds raised by the Applicant that will most probably be successful in appeal. Therefore, application for leave to appeal out of time in respect of Criminal Case No. 724/2013 from the Lautoka Magistrates Court is granted.

Aruna Aluthge
Judge

AT LAUTOKA
On 19th April, 2016

Solicitors: Office of the Director of Public Prosecution for State (Applicant)
Office of the Legal Aid Commission for Respondent