Baleisavu v State [2009] FJCA 16; AAU0017.2009 (13 October 2009)

IN THE COURT OF APPEAL, FIJI ISLANDS
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: AAU 0017/2009
(HIGH COURT CRIMINAL ACTION NO: HAC 150/07)

BETWEEN:

OSEA BALEISAVU
Appellant

AND:

THE STATE
Respondent

Coram: Hon. Mr Justice Devendra Pathik
Judge of Appeal

Counsel: Appellant in Person
Ms. N Tikoisuva for the Respondent

Hearing: 13 October 2009
Date of Ruling: 13 October 2009

RULING
Appeal Out of Time

[1] This is an application by the appellant seeking leave to appeal out of time against his sentence of 4 months upon his conviction for the offence of being found in possession of 0.10 gram cannabis sativa an illicit drug contrary to section 5(A) of Illicit Drugs Control Act, 2004.

[2] The action was transferred by the Magistrate’s Court at Nausori to the High Court at Suva on 7 September 2007.

[3] Pursuant to the Order of the High Court on 12 October 2007, by virtue of Section 4, Subsection 2 of the Criminal Procedure Code, Cap 21. Magistrate Josaia Waqaivolavola was invested with an extended jurisdiction to try this offence under the Illicit Drugs Control Act 9 of 2004.

[4] The appellant was sentenced to 4 months imprisonment consecutive to his current term.

[5] On 24 August 2009 the application came before me for hearing where counsel for the respondent Ms. Puamau informed the court that the appellant has already been released from prison. The appellant failed to appear.

[6] I adjourned the application to 23 September 2009. On the adjourned date the applicant again failed to appear and I adjourned it further to 13 October 2009 in case he turns up.

[7] He again failed to appear when counsel Ms. N. Tikoisuva applied for dismissal of application under 35(2) of the Court of Appeal Act which I did.

[8] Although the appellant was released from prison, he could have still appeared in court if he was at all interested in his application out of time.

[9] The applicant, I hold has abandoned his application. It is therefore dismissed.

Dated at Suva this 13th day of October 2009.

D. Pathik

Judge of Appeal