Tuilaselase v State [2008] FJHC 370; HAM 040.2008 (11 July 2008)

IN THE HIGH COURT OF
FIJI ISLANDS AT SUVA

CRIMINAL JURISDICTION

CRIMINAL MISC. CASE NO.: HAM 040 OF 2008

BETWEEN:

PENIASI TUILASELASE
Applicant

AND:

THE STATE
Respondent

Counsel: Applicant in Person
Ms. S. Puamau for State

Date of Hearing: Friday 13^th June, 2008
Date of Ruling: Friday 11^th July, 2008

RULING

[1] On 5 April 2006, the applicant was sentenced by the Magistrates' Court to a total sentence of 7 years and 6 months imprisonment after pleading guilty to one count each of robbery with violence, unlawful use of motor vehicle and committing offence during his bound over period.

[2] The applicant appealed against sentence and, on 18 August 2006, the High Court allowed the appeal by reducing the overall sentence to 7 years imprisonment. On 7 December 2006, the applicant sought leave to appeal out of time against the judgment of the High Court. On 6 February 2006, the President of the Court of Appeal dismissed the appeal under section 35(2) of the Court of Appeal Act.

[3] On 22 February 2007, the applicant sought special leave from the Supreme Court. The petition was entitled “Application for Appeal for Sentence and Conviction.” However, the grounds related entirely to sentence. On 25 February 2008, the Supreme Court dismissed the applicant's petition.

[4] On 16 April 2008, the applicant filed this application for leave to appeal out of time against conviction, which is out of time by two years.

[5] The applicant contends that his pleas of guilty were equivocal and that he was prejudiced by lack of legal representation. The applicant's explanation for the delay is that he was not aware of his right to appeal against conviction.

[6] According to the record, the applicant appeared in the Magistrates' Court on 5 April 2006. Before the plea was taken from him, he was not advised of his right to legal representation. However, the charges were explained to him and he pleaded guilty. The applicant admitted the facts outlined by the prosecution, and his 39 previous convictions.

[7] In mitigation, the applicant outlined his personal circumstances and asked for leniency from the court. The facts outlined by the prosecution disclosed the charged offences.

[8] Albeit the learned Magistrate should have advised the applicant of his right to legal representation, I am satisfied that he was not prejudiced by lack of legal representation. The applicant was not a stranger to the legal system. The fact that he appealed in person his sentence all the way to the Supreme Court demonstrates a fair knowledge of the legal system and how it operates. For him to now say that he was not aware of his right of appeal against conviction is not a contention this Court can easily accept.

[9] I am satisfied that the applicant has shown no ground for the delay in bringing this application. I am also satisfied that, even if leave were to be given, there is no chance of success in the appeal.

[10] The application is refused.

Daniel Goundar
JUDGE

At Suva
Friday 11^th July, 2008