State v Laveta [2014] FJCA 4; AAU 65.2013 (24 January 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL AAU 65 OF 2013
(High Court HAR 14 of 2012)

BETWEEN:

THE STATE
Appellant

AND:

SAIRUSI LAVETA AND
VILIMONI VAGANALAU
Respondents

Coram: Calanchini P

Counsel : Mr L Fotofili for the Appellant
Mr J Savou for the Respondents

Date of Hearing: 28 June, 3 July, 16 August and
18 October 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 12 April 2013.

[2] Under section 26(1) of the Court of Appeal Act Cap 12 (the Act) 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 may be extended at any time by the Court of Appeal. Pursuant to section 35(1) of the Act, the jurisdiction of the Court of Appeal to extend time 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 five weeks out of time on the basis that the notice of appeal was required to be filed no later than 12 May 2013. 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 two Respondents appeared in person without legal representation. The Court documents had been served on the Respondents at the Suva Correctional Centre. The Respondents were granted time to obtain advice from and representation by the Legal Aid Commission. Through Counsel the Court was informed that the Respondents did not oppose the Appellant's application.

[5] The Respondents 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 5000 grams.

[6] The Respondent Laveta was also convicted of being in possession of illicit drugs contrary to section 5(a) of the Illicit Drugs Control Act. He admitted being in possession of cannabis sativa dried leaves weighing 185.5 grams and Indian Hemp seeds weighing 48.9 grams. The Respondent Vaganalau was convicted of being in possession of an illicit drug under section 5(a) of the same Act. He admitted being in possession of cannabis sativa dried leaves weighing 1.4 grams. On 29 June 2012 the Respondents were both sentenced to a total term of imprisonment of 75 months with non-parole terms of 35 months.

[7] Subsequently, pursuant to section 260 of the Criminal Procedure Decree 2009, the file 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, legally or propriety of any finding, sentence or order recorded or passed; and

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

[8] The Appellant through Counsel and the Respondents in person appeared at the revision hearing in the High Court on 19 February and 1 March 2013. On 12 April 2013 the High Court delivered a written Ruling. Relying on the decision of the Court of Appeal in Sulua –v- The State (AAU 93 of 2008) and Chandra –v- The State (AAU 74 of 2008) (both delivered on 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 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 matter be transferred to the High Court for trial.

[9] The learned Judge also concluded that the amounts involved in the possession charges put the offences into category 1 offences for which the courts are encouraged to impose non-custodial sentences. The Judge concluded that the terms of imprisonment imposed on the Respondents for the possession offences were unjust and inconsistent with the decision of the Court of Appeal in the Sulua decision (supra)

[10] The learned High Court Judge ordered that all convictions and sentences be quashed and set aside. He ordered that the cultivating offence be remitted to the Magistrates Court for the purpose of making orders formally transferring the matter to the High Court for trial. The 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 of the Respondents but varying the sentences imposed pursuant to section 22(3) of the Act on the following ground:

"That the learned review judge erred in law in quashing the convictions of 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 (Sulua supra) when there exists statutory provisions namely sections 4 and 5 of the Criminal Procedure Decree 2009 which deal 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 5 weeks. The Appellant concedes that there is no real reasonable excuse for the delay. An explanation is given that relates to attempting to comply with the orders of the High Court. The Appellant relies on the factor that despite the delay, the appeal's chances of succeeding are sufficiently strong to warrant extending the time for giving notice of appeal.

[15] The ground of appeal refers to sections 4 and 5 of the Criminal Procedure Decree 2009. For the present application it is sufficient to refer to section 5 which states:

"(i) Any offence under any law other than the Crimes Decree 2009 shall be tried by the Court that is vested by that law with jurisdiction to hear the matter.

(ii) When no court is prescribed in any law creating an offence and such offence is not stated to be an indictable offence or summary offence, it may be tried in the Magistrates Court in accordance with any limitations placed on the jurisdiction of classes of magistrates prescribed in any law dealing with the administration and jurisdiction of the Magistrates Court."

[16] It is noted that 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 Sulua (supra).

[17] Whether the ground of appeal meets the standard necessary to overcome the delay may be arguable. I am however satisfied that the appeal raises an issue which should be considered by the Court of Appeal. The issue is whether section 5(2) of the Criminal Procedure Decree 2009 allows a Magistrates Court to retain jurisdiction to hear and determine all offences under section 5 of the Illicit Drugs Control Act 2004.

[18] Since the Respondents did not oppose the application I find it is unnecessary to consider the issue of prejudice to the Respondents. 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.

..........................................................

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