Ratuyawa v State [2014] FJCA 3; AAU 64.2013 (24 January 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL AAU 64 OF 2013
(High Court HAR 7, 10 and 15 of 2012)

BETWEEN:

THE STATE
Appellant

AND :

NEMANI RATUYAWA, PAULA NAWADRADRA,
JOSESE YAUTA AND ANASA TOLOI
Respondents

Coram : Calanchini P

Counsel : Mr L Fotofili for the Appellant
Mr J Savou for the first three named Respondents

Date of Hearing : 28 June, 3 July, 16 August, 23 September,
18 October and 11 December 2013

Date of Decision : 24 January 2014

DECISION

[1] This is an application by the Appellant for an order granting an extension of time to file a notice of appeal against a Ruling of the High Court exercising its revisional jurisdiction delivered on 19 October 2012.

[2] Under section 26(1) of the Court of Appeal Act Cap 12 the time within which a person desiring to appeal is required to give notice of appeal is 30 days from the date of the decision of the High Court. However, under the same section, the time within which a notice of appeal may be given may be extended at any time by the Court of Appeal. Pursuant to section 35(1) of the Court of Appeal Act the jurisdiction of the Court of Appeal to extend the time within which a notice of appeal may be given may be exercised by a single judge of the Court.

[3] The application was filed by the Appellant on 18 June 2013 and was as a result about 7 months out of time on the basis that the notice of appeal was required to be filed no later than 19 November 2012. The application was supported by an affidavit sworn on 10 June 2013 by Madonna Lania Fong.

[4] The application was listed for mention before me on 28 June 2013. The Appellant appeared and the Respondents appeared in person without legal representation. The court documents had been served on the first three named Respondents personally at the Suva Correctional Centre and on the Respondent Toloi personally at the Suva High Court.

[5] The Respondents were granted time to approach the Legal Aid Commission to obtain advice and representation if appropriate. For reasons which are not relevant to the application, the Respondents (except for the Respondent Toloi) had initially indicated that the application was opposed. However in December 2013 the Respondents indicated through Counsel that the application was not now being opposed. It would appear that the Appellant does not intend to proceed against the Respondent Toloi in whose favour "a nolle prosequi" has been filed.

[6] The Respondents Ratuyawa and Nawadradra were convicted in the Magistrates Court at Suva of jointly cultivating an illicit drug contrary to section 5(a) of the Illicit Drugs Control Act 2004. They admitted cultivating 221 plants known as cannabis sativa, an illicit drug, weighing 69.5 kilograms. On 13 April 2012 the Magistrates Court sentenced both Respondents to 1 year 5 months and 17 days imprisonment.

[7] The Respondent Yauta was convicted in the Magistrates Court at Suva of cultivating an illicit drug contrary to section 5(a) of the Illicit Drugs Control Act 2004. He admitted cultivating 101 plants known as cannabis sativa weighing 42.5 kilograms. On 24 April 2012 the Magistrates Court sentenced the Respondent Yauta to 3 years 8 months 22 days imprisonment.

[8] Subsequently, pursuant to section 260 of the Criminal Procedure Decree 2009, the two files and the record of the proceedings in the Magistrates Court were reviewed by the High Court. Section 260(1) provides that:

"The High Court may call for and examine the record of any criminal proceedings before any Magistrates Court for the purpose of satisfying itself as to:

(a) the correctness, legality or propriety of any finding, sentence or order recorded or passed; and

(b) the regularity of any proceedings of any Magistrates Court."

[9] The Appellant through Counsel and the Respondents in person appeared at the revision hearing in the High Court on 1 October 2012. On 19 October 2012 the High Court delivered a written Ruling. Relying on the decision of the Court of Appeal in Kini Sulua –v- The State (AAU 93 of 2008) and Chandra –v- The State (AAU 74 of 2008) (both delivered as one decision on 31 May 2012) the learned High Court Judge found that the weight of the cultivated illicit drugs in these proceedings put the offences into category 4 offences which rendered the three Respondents liable to terms of imprisonment ranging from 7 to 14 years. The learned Judge held that the Magistrates Court had no jurisdiction to hear category 4 offences and as a result should have ordered that the matters be transferred to the High Court for trial.

[10] The learned High Court Judge ordered that the convictions and sentences be quashed and set aside. He ordered that the cases be remitted to the Magistrates Court for the purpose of making orders formally transferring the cases to the High Court for trial. The three Respondents were ordered to be remanded in custody until further order of the High Court.

[11] Being dissatisfied with the Review Ruling the Appellant seeks an order from the Court of Appeal setting aside the Ruling and an order confirming the convictions and sentences of the Respondents in the Magistrates Court on the following grounds:

"(i) That the learned review Judge erred in law in quashing the convictions of all the Respondents by virtue of the majority Court of Appeal decision in Kini Sulua, Michael Ashley Chandra –v- The State (criminal appeal No. AAu 93 of 2008) when the Respondents had been convicted and sentenced in the Magistrates Court prior to the said Court of Appeal decision;

(ii) That the learned review judge erred in law in quashing the convictions of all the Respondents on the basis that the Magistrates Court had no jurisdiction to try the matter by virtue of the majority Court of Appeal decision in Kini Sulua (supra) when there exists statutory provisions namely sections 4 and 5 of the Criminal Procedure Decree 2009 which deals with jurisdiction of criminal trial matters."

[12] The Appellant in its summons stated that it was seeking the orders pursuant to section 22(3) of the Court of Appeal Act (the Act). Section 22 of the Act deals with appeals from the High Court in the exercise of its appellate jurisdiction in criminal cases. The proposed appeal in these proceedings is governed by section 22(2) of the Act which states:

"For the purposes of this section a decision of the High Court in the exercise of its revisional jurisdiction or on a case stated under the provisions of the (Criminal Procedure Decree 2009) shall be deemed to be a decision of the High Court in such appellate jurisdiction as aforesaid."

[13] It is now necessary to consider the principles that are applied by the courts when considering an application for an extension of time to give notice of appeal. The Supreme Court in Kaliova Rasaku and Another –v- The State (unreported CAV 9 and 13 of 2012; 24 April 2013) referred with approval at paragraph 21 to the decision of Gates CJ in Kumar and Sinu –v- The State (unreported CAV 1 of 2009; 21 August 2012) who summarized the factors that will be considered by a court in Fiji for granting enlargement of time as being (i) the reason for the failure to file within time, (ii) the length of the delay, (iii) whether there is a ground of merit justifying the appellant court's consideration, (iv) where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed and (v) if time is enlarged, will the Respondents be unfairly prejudiced?

[14] I have already referred to the length of the delay as being about 7 months. In an unusual admission the Appellant concedes in the affidavit in support that "there is no real reasonable excuse for the delay" of about 7 months. The Appellant relies on the factor that despite the substantial unreasonable delay, the appeal's chances of succeeding are sufficiently strong to warrant extending the time for giving notice of appeal.

[15] Certainly, the first ground of appeal does appear to warrant granting an extension of time. This ground raises the issue of the retrospective operation of the common law. In this case the Respondents were sentenced on 13 and 24 April 2012. The Court of Appeal decision in Kini Sulua (supra) was delivered on 31 May 2012. It was not suggested by the learned High Court Judge that the Magistrates Court had erred in any way other than failing to apply a decision of the Court of Appeal that had not yet been delivered at the time when the Magistrates concerned were dealing with these cases. The decision of the learned Judge was based on the premise that as a result of the decision in Kini Sulua (supra) the sentence that could have been imposed in respect of a category 4 drug offence exceeded the jurisdiction of the Magistrates Court. The issue according to the Judge was jurisdiction not the sentence. The issue of jurisdiction arose as a result of a superior appellate court decision that had not yet been delivered.

[16] The second ground of appeal refers to sections 4 and 5 of the Criminal Procedure Decree 2009. Section 5(2) of the Decree provides that where the law does not prescribe a court nor state whether the offence is indictable or summary, then the matter may be tried in the Magistrates Court. It is noted section 5 of the Illicit Drugs Control Act does not prescribe the court nor state whether the offence is summary or indictable. It is arguable that the Magistrates Court retains jurisdiction even in the face of the Court of Appeal decision in Kini Sulua (supra).

[17] Whether the grounds of appeal meet the standard necessary to overcome the delay of some 7 months may be arguable. I am however satisfied that the appeal raises two issues which should be considered by the Court of Appeal. The first issue is whether the Court of Appeal decision in Kini Sulua (supra) has retrospective effect thereby depriving the Magistrates Court of jurisdiction in respect of category 4 drug offences. The second issues is whether section 5(2) of the Criminal Procedure Decree 2009 allows a Magistrates Court to retain jurisdiction to hear and determines all offences under section 5 of the Illicit Drugs Control Act 2004.

[18] In view of the indication by Counsel for the Respondents that the application is not opposed, I do not find it necessary to consider the issue of prejudice to the Respondents.

[19] As a result the application is granted. The Appellant is to file and serve its notice of appeal within 14 days from the date of this decision. Thereafter the appeal is to proceed strictly in accordance with the Rules without delay.

..........................................................
Hon. Mr Justice W. D. Calanchini
President, Court of Appeal