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State v Tolevu [2004] FJHC 184; HAM0007.2004 (18 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISC. CASE NO. HAC0007 OF 2004

BETWEEN:

STATE
Applicant

AND:

EMOSI TOLEVU
Respondent

Hearing: 18th March, 2004
Ruling: 18th March, 2004

Counsel: Davendra Prasad – for the State
Respondent – In Person

EX TEMPORE JUDGMENT

I have before me a notice of motion from the Director of Public Prosecutions seeking an order enlarging the time within which he may lodge a petition of appeal from the decision of the Magistrates Court in Criminal Case No. 644 of 2002.

The application is supported by an affidavit which annexes a proposed petition of appeal. The grounds contained in the appeal are extremely general.

The affidavit contains a sparse timeline of the subject proceedings and appeal. Primarily the Director relies on the late delivery of the file to his office by the metropolitan police. The file arrived on the 9th of February 2004. The appeal period expired on the 28th of January 2004.

I have today heard from counsel from his office.

These matters started with an incident that is said to have occurred on the 21st of September 1999. Counsel for the Director was unable to assist me with any information concerning a timeline and explanation as to why the matter took from September 1999 until December of 2003 to be heard. The Director did not put forward any argument other than the delay not being the fault of his office and what was claimed as the merits of the appeal.

I have to say that these merits were sparsely argued. Counsel was not familiar with his file. Counsel claimed that the previous convictions of Mr. Tolevu were relevant. He did not then produce a Conviction list. However, subsequently in his reply to what Mr. Tolevu had to tell me he then found a Conviction sheet on his file (which I note Mr. Tolevu disputed in any event). The conviction sheet in my view supports rather than detracts from Mr. Tolevu’s position. The conviction list is modest, it involves relatively minor offending during the earlier part of Mr. Tolevu’s life. The last offence against him being in March 1995 for damaging property. He was ordered to pay $70.00 by way of fine. Counsel advanced no other merits based argument. This despite being given extra time to reconsider the file and gather his thoughts.

I then heard from Mr. Tolevu. He said that this matter had been worrying him for over 6 years. He had tried to have it resolved. When he went to Court he went there with 4 witnesses to assist him in his defence. He says regrettably three of the witnesses stayed in Court during some of the proceedings and were therefore disqualified from giving evidence on his behalf. I take it by way of inference that the learned Magistrate may have had some reluctance in convicting him and that reluctance was displayed in the lenient sentence handed out. For the record I note that I prefer the explanation given to me by Mr. Tolevu particularly in the absence of any cogent argument on behalf of the Director before me this afternoon.

I would have given some favourable consideration to the Director’s position were it not for the age of this matter. By the time the file reached the Director’s office the appeal period had expired in any event. Although the period covered by the request for the order enlarging time within which the appeal might be lodged is small, in my view, that request has to be set within the scene of the actual crime and the length of time it took to bring that matter to a proceeding.

It is often said that justice delayed is justice denied. Mr. Tolevu in a very cogent and powerful way says that he got some final resolution of this matter when the orders were made on the 31st of December last year. In my view he deserves that finality in his life and the justice of the situation means that on balance it would be unjust to re-open that issue in his life again.

Accordingly I decline the application for the reasons set out in this judgment.

Gerard Winter
Judge

At Suva
18th March, 2004