Latu v The State [1996] FJHC 11; Haa0020j.1996s (10 May 1996)

Fiji Islands - Latu v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> CRIMINAL APPEAL NO. 20 OF 1996

Between:

TAGILALA LATU
Appellant

AND:

STATE
span lang=EN-GB style="font-family: Times New Roman"> RespoRespondent

Appellant in Person

Ms. E. Rice for the Respondent

JUDGMENT
(Orally)

The appellant was charged in the Magistrate's Court at Nausori along with two others for being in possession of 634 gramsgrams of dangerous drugs, namely, Indian hemp contrary to section 8(b) and 41 of Dangerous Drugs Act Cap. 114 as amended by Dangerous Drugs Act (Amendment) Decree No. 4 of 1990 and Dangerous Drugs Act (Amendment) (No.1) Decree, 1991.

On 18 July 1995 the appellant was on his own plea convicted and sentenced to imprisonment for 5 years which is the minimum sentence provided under the said section 8 of the relevant Decree (the maximum being 20 years). Of the co-accuseds, the second accused also pleaded guilty and he was to appear before the learned Magistrate at a later date and the third accused had pleaded not guilty and the hearing was pending. I am not concerned with the second and third accused in this appeal.

The Appellant has raised a numb grounds in his appeal but in view of what transpired at this hearing it is not necessary fary for me to deal with them all. In the circumstances I did not have to hear the appellant.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The learned State counsel quite rightly conceded that the said conviction and nce of the appellant cannotannot stand, as 'election', which was also one of the grounds on which the accused had appealed, was not put to him.

Ms Rice referred the Court to the case of LEPANI WAINIBE (Misc. No. HBM009/95L Lautoka High Court 8.8.95 Judgment SADAL J) where the issue was the same as in this case. There the conviction was quashed and the case remitted to the Magistrate's Court Rakiraki.

I find, as SADAL J found in LEPANI (supra), the proceedings in this case were a nullity as eon was not put to the accusaccused by the learned Magistrate before plea as required by section 4 of the Criminal Procedure Code Cap. 21 which provides as follows:-

"4. - (1) Subject to the other provisions of this Code, any offender the Penal Code may be t be tried by the Supreme Court, or by any magistrate by whom such offence is shown in the fifth column of the First Schedule to be triable:

Provided that where so stin the fifth column of the First Schedule the offence shallshall not be tried by a magistrate unless the consent of the accused to such trial has first been obtained."

A similar situation arose in SAIMONI NATALA and THE STATE (Crim. App. No. 07/96 Suva, 28.3.96 Judgmendgment) where SCOTT J, as in LEPANI, set aside the conviction.

The issue in this case is, as s in the two cases cited above, whether election should have been put to the accused or notr not.

This offence is not a Penal Code offand therefore falls within the ambit of the First Schedule dule to the Criminal Procedure Code Cap. 21 which states under caption "Offences under other laws where no specific provision is made to the contrary in other laws": "if punishable with imprisonment for ten years or upwards, but less than for life" is only triable "with the consent of the accused, resident Magistrate" (vide 5th Column to the said schedule). I might observe at this stage that the Electable Offences Decree No. 22 of 1988 merely amended the Penal Code offences and there is set out a list of "electable offences" in the schedule thereto.

Hence it is quite clear that the Magistrate's Court had no jurisdiction to try this drug of without putting the accuseccused to his election.

The whole proceedings were therefore a nullity.

Consequently, I quash the conviction and side the sentence. The case is remitted to the Magistrate'sate's Court and I release the accused on bail on his own recognizance of $500 with one surety of like amount to reappear before the Nausori Magistrate's Court on 13 May 1996 at 9.00 a.m.

D. Pathik
JUDGE

At Suva
10 May 1996

Haa0020j.96s