Mototabua v State [2022] FJHC 115; HAA01.2021 (16 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 01 of 2021

ELIKI MOTOTABUA

vs

THE STATE

Counsels: In person - for Applicant

Ms. Shameem S - for Respondent/State

Date of Ruling: 16 March 2022

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RULING

1. In this matter the Accused, ELIKI MOTOTABUA, was charged in the Magistrates Court of Nausori under the following counts:
   
   1. Dangerous driving punishable under Section 98 (1) read with Section 114 of the Land Transport Act of 1998; and
      
   2. Failing to supply sufficient samples of blood for breath analysis as required to do so by a police officer punishable under Section 103 (1) (b) read with Section 114 of the Land Transport Act of 1998.
      
2. After trial, the Learned Magistrate of Nausori had acquitted the Accused on the first count and convicted him on the second count on 15/12/2020. Being dissatisfied with the conviction the Accused had filed a timely appeal to the High Court against the conviction before the sentence was passed by the Learned Magistrate.
   
3. Though the initial appeal papers had been amended by the Accused (Applicant), now he Applicant relies on the amended grounds of appeal filed on 18/01/2022.
   
4. When this matter came up for hearing in the High Court on 02/03/2022 and when both parties made submission, this Court noticed that this appeal had been filed by the Applicant before the final sentence was pronounced by the Learned Magistrate. Thereby, by this application the Applicant has halted the finality been reached in the Magistrate Court.
   
5. On observing the status quo of this proceedings in the Magistrate Court, this Court requested the parties to file their submissions to this Court on the jurisdiction of this Court to hear this appeal, while the matter is still pending in the Magistrate’s Court.
   

Submissions of the Applicant

6. Applicant submits that, as he sees, under Section 246 (1) of the Criminal Procedure Act of 2009, any person dissatisfied with any judgement, sentence or order of a Magistrate’s Court in any Criminal cause or trial may appeal to the High Court against the judgement, sentence or order or both the judgement and sentence pronounced by the Magistrate’s Court. Applicant further states that this position is affirmed by Section 14 (2) (O) of the Constitution of Fiji. On these legal provisions, Applicant reiterates that this Court has the jurisdiction to hear this appeal.
   

Submissions of the Respondent

7. Counsel for the Respondent submits that the Learned Magistrate had wrongfully differed the sentence after finding the Applicant guilty of the second count. Therefore, in the absence of any provisions conferring the Learned Magistrate the jurisdiction to defer the pronouncement of the sentence pending the determination in the appeal against the conviction by the High Court, it is submitted that this Court should reverse the order of the Learned Magistrate and direct the Magistrate to pronounce the sentence before hearing this appeal.

The Law and Analysis of arguments of parties

ApplicantRt’s right to appeal under Section 246 of the Criminal Procedure Act of 2009

8. Section 2ion 246 (1) of the Criminal Procedure Act of 2009 states that a person has a right to appeal to the High Court against any judgment, sentence or order of a Magistrate’s Court made in any criminal case. This section reads;

9. Section 246 (7) of the Criminal Procedure Act 2009 has further elaborated the right of appeal to the High Court against the orders of the Magistrate made in any criminal proceedings in the Magistrate’s Court. This section reads:

“An order by a court in a case may be the subject of an appeal to the High Court, whether or not the court has proceeded to a conviction in the case, but no right of appeal shall lie until the Magistrates Court has finally determined the guilt of the accused person, unless a right to appeal against any order made prior to such a finding is provided for by any law.”

10. As clearly pronounced by this section, an order of the Magistrate’s Court can only become the subject of an appeal to the High Court if the Magistrate’s Court has finally determined the guilt of the accused. However, in the matter at issues, the Learned Magistrate has only found the accused guilty but has not reached the final determination of the case as the sentence is pending. It needs to be highlighted that in a criminal case the sentence is an integral part of the guilty verdict against an accused. Therefore, the final determination of a criminal case can only be reached after the pronouncement of the sentence against the accused, which will put an end to any further court proceedings in the case in that court.
    
11. In identifying a definition for “final determination”, this Court intends to refer to the judgement of the House of Lords of England & Wales in the case of Atkinson v United States Government and Others [1969] 3 All ER 1317, where his Lordship LORD MORRIS OF BORTH-Y-GEST states that a decision becomes a “final determination”, when that decision brings their definite and final conclusion having operative effect, as below:

“If committing magistrates decide that the evidence in a case is sufficient to warrant a committal for trial, I can see no reason why that is not a “determination”. The legislation does not have the expression “final determination”. But if the word “final” is read in then it seems to me that the decision of the maates on then the issue before them, ie, whether there is sufficient evidence to warrant a committal, is a final decision insense it is thei their definite and f#160;conclusion having opeg operative effect.R.”

12. Therefore to be a “fina;final determination” that decision shall put an end to any further proceeding in that court having any operative effect in the matter. However, in the matter before this Court, when the Learned Magistrate of Nausori convicted the accused (Applicant) on the second count that did not bring Magistrate Court proceedings to a definite and final conclusion having no further operative effect, since the Magistrate Court also had to pronounce the sentence against the accused. As a consequence, since the sentence is an integral part of guilt of the accused, the Learned Magistrate had to pronounce a sentence to bring the matter to a conclusion for provisions of Section 246 (7) of the Criminal Procedure Act to take effect and for the accused to have a right to appeal.
    

13. This position has also been confirmed in the case of Ismail v State [2018C 79H; HAA01.2018 (22 (22 August 2018), where Justice Sunil Sharma states, as below:

“In my view section 246 (7) literaeans cusedon’s guilt is not finally determitermined uned until ntil that accused is sentenced. The entering of a conviction is a step towards finality of guilt but not the final determination of guilt. It is only when an accused is sentenced that his or her guilt is finalized not before that. This provision should be given a wide interpretation to achieve its purpose which is to consider appeals from the final determination of a matter in the Magistrates Court.”

14. On the above premise, this Court is of the view that the argument raised by the Applicant fails to hold plausible grounds to have an appeal to the High Court at the present juncture of his case.
    
15. However, in recognizing the provisions in our Constitution, where in protecting the rights of an accused person it’s clearly stipulated:
    
    • ➢ “Article 14 (2) (o) : Every person charged with an offence has the right – of appeal to, or review by, a higher court”
      
    • ➢ “Article 14 (2) (g): “Every person charged with an offence has the right – to have the trial begin and conclude without unreasonable delay”
      

This Court is of the opinion that in situations where there is an unreasonable delay in passing the sentence by the Magistrate’s Court after conviction, with the leave of the High Court on submitting valid reasons, any convicted person should be allowed to file an appeal against a conviction in the High Court pending sentencing in the Magistrate’s Court. On high insight, this Court is of the view that Learned Magistrates should pronounce the sentences on convictions without inexplicable delay in keeping in line with the Constitutional requirement.

16. In suggesting this position, this Court is mindful that there could be high and detrimental consequences of a conviction on a citizen. In this regard, society cannot overlook the impact a conviction has on anyone, let alone a young person. 160;impact could&#1ld reach pote employment, stud study, travel, future relationships nvolvement in sports. In this regard, employment options will be seriously harmed, as will will study, and it is no use studying for sometwhere a character assessmenssment is required to hold a certificate to practice something like law or to hold an important position. It will be a travesty of justice if the conviction in issue was erroneous and if the appeal was barred due to not having a finality in the Magistrate’s Court Proceedings due to administrative delay.
    
17. Nevertheless, the matter at hand is devoid of such circumstances. Therefore, this appeal is dismissed due to lack of jurisdiction for the High Court to hear this appeal at present. As a result of this ruling, the Learned Magistrate can proceed with the next step of the Magistrate Court trial and sentence the accused in bringing the matter to a conclusion. When that step is taken, if the accused is not satisfied with the conviction or the sentence imposed by the Learned Magistrate he can appeal to this Court in relation to his conviction or the sentence or both, as provided by Section 246 of the Criminal Procedure Act of 2009.
    
18. You have thirty (30) days to appeal to the Fiji Court of Appeal.
19. The Learned Magistrate of Nausori is directed to call this matteCourt without any delay and impose a Sentence against the athe accused.
    

...........................................................
Hon. Justice Dr. Thushara Kumarage

At Suva
16 March 2022

cc: In person – the Applicant, Mr. Eliki Mototabua
Office of the Director of Public Prosecutions