Seruitata v State [2004] FJHC 314; HAA0062.2003B (1 March 2004)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 62 OF 2003

BETWEEN:

APENISA SERUITATA
Appellant

AND:

STATE
Respondent

Counsel: Ms S Shah for the State
Mr A Vakaloloma for the appellant

Hearing: Tuesday, 23 March 2004

Judgment:

MINUTE

This is an appeal against sentence. The appellant was sentenced on the 30th of July 2003 on one charge of indecent assault. He received 3 years imprisonment.

Although not clear on the notice of appeal, his counsel confirmed the appeal was against both conviction and sentence.

I commenced hearing the appeal.

A predominant feature of the appeal was the failure of the learned magistrate to provide the appellant with any information in accordance with section 28(1)(d) of the 1997 Constitution concerning his right to representation. I was referred to the persuasive decision of Epeli Duve & Others v the State Criminal Appeal HAA 028 of 2002 in that regard.

In her reply to that point the State directed my attention to the criminal record for the 5th of May 2003 where it is said-:

"Prosecution

Accused had been recharged as he didn’t appear on bench warrant in previous cases. Was evading police".

Ms Shah argues that there is a risk we do not have before us today the complete case record as clearly the appellant had made an earlier appearance on these matters. Her concern is that that record may disclose compliance with the constitutional provision. Counsel considered it her duty to ask for an adjournment to enable sufficient time for the State to request a search of the full record and preparation of it for appeal.

Reluctantly defence counsel concedes that this is an appropriate course. However I record his reservation that in any event a purposive reading of the provision may mean that if there has been a sufficient delay between the initial appearance and that on the 5th of May 2003 then a further constitutional warning to the appellant may have been called for at that time. I specifically leave that issue open for future argument. I grant the State’s application and adjourn this matter part-heard to the 27th of April 2004.

Gerard Winter
Judge

At Labasa
............March, 2004