Luvui v The State [2006] FJCA 4; AAU0030J.2005S (10 March 2006)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

Criminal Appeal No. AAU0030.2005S
(High Court Criminal Appeal HAA0040.2005L)

BETWEEN:

EREMASI LUVUI
Appellant

AND

THE STATE
Respondent

Coram: Tompkins, JA
Scott, JA
Wood, JA

Date of Hearing: Wednesday 8 March 2006

Counsel: Appellant in Person
Ms. K.A.C. Bavou for the Respondent

Date of Judgment: Friday 10 March 2006

JUDGMENT OF THE COURT

[1] On 10 November 2003 the Appellant was convicted on one count of shop breaking, entry and larceny contrary to Section 300 (a) of the Penal Code (Cap. 17). He was sentenced to two and half years' imprisonment.

[2] On 6 April 2005 the High Court at Lautoka dismissed his appeals against conviction and sentence.

[3] On 3 May 2005 the Appellant filed an 'Application for appeal' against his conviction. On 5 August 2005 the President, having determined that the grounds of appeal did not raise a question of law only, refused leave to appeal.

[4] On 18 November 2005 the Appellant filed the present application which purports to be made pursuant to Section 35 (3) of the Court of Appeal Act.

[5] As explained by this Court in Aiyaz Ali v. The State ([2005] FJCA 74; AAU0029.2005S – 25 November 2005) a finding by a single justice of appeal that an appeal from the High Court in its appellate jurisdiction does not raise a question of law only is not in fact a refusal of leave to appeal but is a determination that no appeal lies. It is therefore a dismissal of the appeal under the provisions of Section 35 (2) of the Court of Appeal Act.

[6] Since the provisions of Section 35 (3) do not extend to the dismissal of an appeal under Section 35 (2) this application is misconceived and must fail.

RESULT:

Appeal dismissed.

Tompkins J. A.
Scott J.A.
Wood J. A.

Office of the Director of Public Prosecutions for the Respondent