Lewaniceva v The State [2005] FJHC 340; HAA0105.2005L (18 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0105 OF 2005L

SUSANA LEWANICEVA

v.

THE STATE

Mr. F. Koya o/i from Mr. I. Khan for the Appellant
Mr. S. Qica for the State

Date of Hearing: 18 November 2005
Date of Ruling: 18 November 2005

EXTEMPORE RULING ON APPEAL

The appellant appeals against conviction and sentence.

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to section 8 (b) of the Dangerous Drugs Act 114 and section 3 of the Dangerous Drugs Act as amended by Decree No. 4 of the Fiji Gazette No. 10 of 1990 and section 2 of the Dangerous Drugs Act (Amendment) No. 1 Decree 1991.

Particulars of Offence

SUSANA LEWANICEVA on the 5^th day of February 2005 at Vatumali, Navosa in the Western Division was found in possession of 1,227.4grams of Indian Hemp.

The offence in this matter was allegedly committed on the 5^th February 2005.

The facts as presented to the Learned Magistrate are that on the 5^th February 2005 at about 7.55am the appellant was found with a blue bag containing dried leaves believed to be marijuana at Vatumali, Navosa. The police searched and found 16 rolls of dried leaves inside the bag and after testing were found to be Indian Hemp also known as cannabis sativa.

As has been highlighted by Madam Justice Shameem in Senitiki Vulavou v The State – Cr. App. No. 133 of 2005S and as has been conceded by the State the appellant was charged under the Dangerous Drugs Act as amended when the relevant provisions of that Act had been repealed and replaced by the Illicit Drugs Act 2004. The commencement date of the Illicit Drugs Act 2004 was the 9^th July 2004. Section 39 of that Act provides the repeal of parts of the Dangerous Drugs Act. Part II of the Act, in particular section 5, provides for the unlawful possession of dangerous drugs and a maximum sentence of life imprisonment and/or $1,000.00 fine.

The definition of illicit drugs under the Illicit Drugs Act includes Indian Hemp or cannabis.

The appellant is alleged as I have said to have committed the offence on the 5^th February 2005 some months after the commencement date of the Illicit Drugs Act. The charge therefore does not exist in law at that time and it requires therefore that the guilty plea, conviction and sentence are invalid and must be quashed.

The appellant’s appeal against conviction succeeds.

In view of the seriousness of the alleged charge, it is in the interests of justice that the appellant to be recharged and retried according to law.

JOHN CONNORS
JUDGE

At Lautoka
18 November 2005