Naika v State [2008] FJHC 332; HBM067.2008 (9 December 2008)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No: HBM67 of 2008

BETWEEN:

KENI NAIKA
Petitioner

AND:

THE STATE
Respondent

Applicant in person
Mr K. Singh for the Respondent

Date of Hearing: 29 October 2008
Date of Ruling: 9 December 2008

JUDGMENT

[1] This is an Application for Constitutional Redress matter where the Petitioner, KENI NAIKA, was convicted and sentenced by Courts Martial for offences under the Republic of Fiji Military Forces Act, Cap. 81, relating to am attempted mutiny on 2 November 2000 where he was found to be “a key player” as a result of which he was sentenced to 9 years and 8 months reduced to 6 years consecutive to his existing term of imprisonment.

[2] The Petitioner sought to appeal against his sentence and on 22 May 2007, the High Court of Fiji at Suva, allowed Constitutional Redress and read that Section 30 of the Royal Military Forces Act, Cap 81, did allow an appeal against sentence to the Fiji Court of Appeal.

[3] The RFMF appealed to the Fiji Court of Appeal which was heard on 15 and 18 February 2008. Judgment was delivered on 12 September where in a majority decision the Court allowed the appeal and set aside the judgment of the High Court (see Republic of Fiji Military Forces v Qicatabua (Unreported, Fiji Court of Appeal, Civil Appeal No. ABU0038.2007, 12 September 2008, Byrne and Goundar JJA; diss Scutt JA) (Paclii: [2008] FJCA 50 http://www.paclii.org/fj/cases/FJCA/2008/50.html, Byrne JA; [2008] FJCA 51 http://www.paclii.org/fj/cases/FJCA/2008/51.html, Goundar JA; [2008] FJCA 52 http://www.paclii.org/fj/cases/FJCA/2008/52.html, Scutt JA diss.)

[4] The Petitioner in a letter dated 1 August 2008 sought Constitutional Redress due to the unreasonable delay in the handing down of a judgment by the Court of Appeal in relation to his matter. When he first came before me in the High Court on 15 September 2008, a timetable was set for the filing of written submissions. He did not advise that judgment had been delivered three days earlier by the Court of Appeal.

[5] In his written submissions filed on 1 October 2008, the Petitioner is now seeking Constitutional Redress not only for the unreasonable delay in the handing down of the judgment but also various declarations in relation to the judgment which, in reality, is seeking to appeal the decision.

[6] In their written submissions filed on 13 October 2008, the Respondent has argued

(a) That "since the Petitioner’s Court of Appeal matter has been dealt with, this Constitutional Redress matter serves no purpose ... [and] ought to be dismissed";

(b) That the High Court cannot review or hear matters that have been dealt with by the Court of Appeal;

(c) That the correct procedure would be for the Petitioner to appeal to the Supreme Court and withdraw his Application seeking Constitutional Redress

[7] At the hearing of the Petitioner’s Application on 29 October 2008, the Petitioner advised the Court:

(a) That he was aware of the decision of the Court of Appeal of 12 September 2008 when he appeared on the 15 September 2008;

(b) That he had lodged an appeal to the Supreme Court from the judgment of the Court of Appeal for which legal aid is acting on his behalf and the matter was to be before Justice Byrne on 3 November 2008;

(c) That his right to appeal to a high court from a Court Martial has been denied.

[8] Section 29(3) of the Constitution states:

"Every person charged with an offence ... has the right to have the case determined within a reasonable time."

[9] Whilst the application does raise important Constitutional questions for the administration of justice in the Fiji Islands, this is not the forum to deal with that question particularly as the Applicant has now lodged an appeal for his case to be referred to the Supreme Court against the judgment of the Court of Appeal.

The Court orders as follows:

1. That the Application for Constitutional Redress is dismissed.

I will now hear the parties on the question of Costs.

Thomas V Hickie
Judge

Solicitors:
Attorney-General’s Chambers, Suva