Naitako v The State [2005] FJHC 341; HAA0106.2005L (18 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0106 OF 2005L

SEREIMA NAITAKO

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

SEREIMA NAITAKO on the 17^th day of December 2004 at Vatumali, Navosa in the Western Division was found in possession of 1,295.9grams of Indian Hemp.

The offence in this matter was allegedly committed on the 17^th December 2004.

The facts as presented to the Learned Magistrate are that on the 17^th December 2004 at about 0900 hours the appellant was found in possession of a black knapsack bag containing dried leaves believed to be marijuana at Vatumali, Navosa and upon testing the contents 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 is conceded by the State the appellant was charged under the Dangerous Drugs Act as amended when the relevant provisions of that Act have been repealed and replaced by the Illicit Drugs Act 2004.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 17^th December 2004 some months after the commencement date of the Illicit Drugs Act. The charge therefore does not exist in law at the time and it follows 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 be recharged and retried according to law.

JOHN CONNORS
JUDGE

At Lautoka
18 November 2005