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Natakuru v The State [2004] FJHC 179; HAM0006D.2004S (27 February 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIM. MISC. CASE NO: HAM0006 OF 2004S

Between:

JOSUA NATAKURU
Applicant

And:

STATE
Respondent

Hearing: 24th February 2004
Ruling: 27th February 2004

Counsel: Applicant in Person
Mr. D. Prasad for State

RULING

The Applicant wishes to appeal against a refusal by the Suva Magistrates’ Court to grant him leave to appeal out of time. His application was refused on 24th December 2002. He had been convicted on 26th March 2002 (although judgment reads 2001) and sentenced on the 5th of April 2002. His appeal to this court (which was in the form of an application) is almost one year out of time.

The Applicant was convicted of the rape of a 19 year old girl on the 8th of February 2001 at the University of the South Pacific. The prosecution called 7 witnesses.

The complainant said that on the 8th of February 2001 she accompanied the Applicant from a house in Flagstaff to the University. He had told her that he was her brother’s friend. At the University compound the Applicant took her into his home, which was unoccupied, and raped her. When he fell asleep, she left and she walked home. She showered but kept her underwear which had stains on them. She told her boyfriend what had happened, and she was medically examined. The report states that there were bruises in the vaginal area consistent with the forceful introduction of a blunt object.

There was evidence of recent complaint and distress. Under caution the Applicant admitted sexual intercourse but said that it was consensual.

The learned Magistrate directed herself on the need for corroboration and correctly said that even without corroboration it was open to her to convict. She considered that the evidence of distress showed the complainant’s consistency and that she was satisfied of the Applicant’s guilt beyond reasonable doubt.

The Applicant was sentenced to 5 years imprisonment on the 5th of April, and was told that he had 28 days to appeal. He has 31 previous convictions and a number of pending cases on the date of sentence. On the 16th of April he asked for a copy of the court record, but he was told by the Registry that he did not need it to prepare his appeal because he already had a copy of the judgement and sentence. He was told this on the 6th of May, when his appeal period had already expired.

On the 29th of November 2002, the Applicant said he wanted to appeal and asked again for a copy of the record. It appears that he had not received the letter written on the 6th of May. The learned Magistrate treated this an application for leave to appeal out of time, and minuted on the file “He was clearly told on 5.4.02 to appeal. His first application was refused as it was well out of time.” Unfortunately I see no record of a first refusal. I do however find that the Applicant asked on several occasions for the court record but never got a reply. Indeed, the only letter to him after the 6th of May 2003 was one written to him on the 30th of September 2003 informing him that his application for leave to appeal out of time was refused with the reasons.

On the 24th of November 2003 the Applicant wrote to the Chief Registrar asking for leave to appeal against the refusal of leave by the Suva Magistrates’ Court. For some reason, it was not filed until the 18th of February 2004. It is now almost two years since his conviction and sentence, and four months since he was told that his application for leave was refused by the Magistrates’ Court.

In considering an application to enlarge time, the court must consider whether the Applicant has shown good cause. Relevant matters are: the length of the lapse of time, the reasons for it, whether there are merits in the appeal and the lack of availability of the court record.

In this case, I cannot accept the Applicant’s submission that his lack of legal knowledge was responsible for his failure to file an appeal in time. The Applicant is no stranger to our courts, and no legal knowledge is required to understand the words: “28 days to appeal.” In his favour however is that he was not told of the decision of the Magistrate to refuse leave until the 30th of September 2003, nor was he invited to attend court when his application was heard. Further, it appears that he continued to ask for the court record and has not been supplied it to this day. I can understand his frustration because I too was not supplied with the court file despite a written request dated 18th February 2004, until the High Court Registry made a second request while I was on the bench hearing this application.

This is an opportune time to refer to section 347 of the Criminal Procedure Code. That section provides:

“If any person affected by any judgment or order passed in any proceedings under this Code desires to have a copy of the judgment or order or any deposition or other part of the record, he shall on applying for such copy be furnished therewith provided he pays for the same, unless the court for some special reason thinks fit to furnish it free of cost.”

In this case the Applicant asked for a copy of the record and was obviously not in a position to pay for it. This was perhaps a suitable case for the court to furnish him with a copy free of cost. This is because the Applicant was in custody and was never represented by counsel.

I now turn to the question of the merits of the appeal. Of course there are two appeals, one from the refusal to enlarge time, and the other against conviction and sentence. In this ruling I am only concerned with the first, although the merits of the substantive appeal are relevant to the refusal to enlarge time.

Leave to appeal was refused but I can see no record of it on the court file. The learned Magistrate was told that this was a case of enlargement of time but it was actually a request for help to get a copy of the record. When the Applicant tried to file his petition of appeal on 9th December 2003, the learned Magistrate asked if he had been advised of her previous instructions. The clerk confirmed that he had, but clearly the Applicant never received the letter, and his application appears to have been refused although there is no record of such refusal.

In these circumstances I consider that it is not altogether the Applicant’s fault that he was out of time. Further, with no reasons recorded, and no hearing on enlargement of time, it would appear that the Applicant has shown good cause. Lastly, the delay in approaching this court is not inordinate. I also note that while the typed judgment of the court appears to contain correct directions on corroboration and consistency, it is difficult to assess the merits of the appeal, based as it is on the credibility of the witnesses, without reading a certified and typed court record.

I grant the Applicant leave to appeal against the refusal of enlargement of time, and I also allow his appeal against that refusal. Leave is granted to appeal out of time. His letter of 24th November 2003 is to be treated as a petition of appeal. The court record must now be prepared and sent to the High Court for the hearing of the appeal by 19th March 2004.

Nazhat Shameem
JUDGE

At Suva
27th February 2004