Download LTA v David Satya Anand Chetty Judgement - Law Fiji

IN THE HIGH COURT OF FIJIAT LABASAAPPELLATE JURISDICTIONCRIMINAL APPEAL CASE NO: HAA 018 OF 2004LABBETWEEN:LAND TRANSPORT AUTHORITYv.DAVID SATYA ANAND CHETTYs/o John KrishnaHearing: 24 th May 2005Judgment: 27 th May 2005Counsel: Mr. T. Romanu for StateIn Person- for AppellantJUDGMENTThe Land Transport Authority appeals the acquittal ofthe Respondent on the following charge:Statement of OffenceIMPROPER OPERATION FROM STAND: Contrary toRegulation 32(1) and 58 of Land Transport(Traffic) Regulations 2000.Particulars of OffenceDavid Satya Anand Chetty on the 19 th ofFebruary 2003 at Labasa in the NorthernDivision being the driver of a Taxiregistration number DH201 on Nasekula Road(R. B. Patel) operated the said vehicleother than from its approved stand at themarket.

2The Respondent was charged by Traffic InfringementNotice. He pleaded not guilty on the 6 th of May 2003. Thematter was adjourned for several mention dates until thehearing was set for formal proof (the Respondent havingfailed to appear) on the 29 th of September 2003. On thatdate, the prosecutor told the Court:“This case falls under Your Worship’s rulingin Traffic Case No 1142/02 State vs KamaluDin s/o Rafiu Din delivered on 05/09/03.Accused was acquitted. There leave it toCourt.”The learned Magistrate then ruled:“To reasons given in the above quoted casethe accused is acquitted. Right of appeal28 days.”The Land Transport Authority appeals against thisacquittal on the following grounds:a) That the learned magistrate erred in lawand procedure by acquitting the accusedand not allowing the prosecution to adducetheir evidence to assert their case.b) That the learned magistrate erred in lawand fact when upholding a decision thatwas not based on the merits of prosecutionevidence.At the hearing of this appeal counsel fairly andproperly submitted a copy of the Director of PublicProsecution’s sanction to appeal against acquittal. It isdated the 22 nd of February 2005. Section 308(1) of the

3Criminal Procedure Code provides that no appeal againstacquittal shall lie except with the consent of the Directorof Public Prosecution. The appeal was filed on the 21 st ofOctober 2003, about a year and a half before sanction wasfiled. In Suva City Council v Ramesh Kumar Cr App HAA40 of1996 Scott J held that where no sanction to appeal againstacquittal is obtained from the director, the appeal mustfail. In the King v Waller [1910] KB 364 the Court ofCriminal Appeal considered the validity of an indictmentwhich included a charge for which the Director of PublicProsecution’s consent was required, but in respect of whichno oral proof of such consent had been led by theprosecution. Instead an inspector of police had produced awritten consent purporting to have been signed by theDirector. On appeal it was argued that consent had to beproperly proved. The Court disagreed saying that if noobjection was raised at the trial, a court could assumethat consent had been granted. However in the course ofjudgment, (per Alverstoke J), it was said that it is theduty of the clerk of the Court to ensure that any suchconsent has been filed at the time that the indictment isfiled and that where objection is taken to the existence ofsuch consent the prosecution must prove such consent.In Price v Himphries [1958] 2 ALL ER 725 the Queen’sBench Divunen accepted the same principles and said thatconsent must be filed at the time that the proceedings areinstituted and that it is the clerk’s duty to ensure suchfiling.Although section 308 does not specify when the consentof the DPP must be filed, I read the word “lies” as similar

4to the word “exists” or “is permitted.” Thus no appealagainst acquittal is permitted without the Director ofPublic Prosecution’s sanction, and in order to grant thecourt jurisdiction to hear the appeal, the sanction mustexist at the time of the filing of the petition of appeal.No clerk of the Magistrates’ Court should accept such apetition without the written sanction of the Director ofPublic Prosecution. Without such sanction the appeal isincompetent and invalid.As it is in this case I accept that the Authorityseeks to clarify an important point of law for futurecases. However such clarification must await the filing ofa competent appeal. This appeal is dismissed.…………………………………………………Nazhat ShameemJUDGEAt Labasa27 th May 2005