Caniogo v State [2011] FJHC 711; HAA019.2011 (30 September 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA 019 OF 2011

BETWEEN:

ISIKELI MAIVATUSEI CANIOGO
First Appellant

ESAVA DUASUVA
Second Appellant

AND:

STATE
Respondent

Mr W. Pillay for the State
Mr P. Lomolomo for the Appellants

Date of Hearing: 23rd September, 2011
Date of Judgment: 30th September, 2011

JUDGMENT
(Appeals from "extended jurisdiction)

[1] On the 19th April 2011 the two appellants were convicted along with one other co-accused of aggravated robbery contrary to Section 311(1) (a) of the Crimes Decree 2009. The particulars were that on the 6th March 2011 in Labasa they stole $72 cash from Shavneel Satendra Deo and at the time subjected him to force. They were sentenced to three years imprisonment. The convictions and sentences were entered by a Magistrate in Labasa acting under extended jurisdiction. They now appeal both conviction and sentence.

[2] At the outset of the appeal, Counsel for the State submitted that this Court has no jurisdiction to entertain the appeal, it having come from a Court exercising the jurisdiction of the High Court. The State submits that any appeal from a Magistrate exercising "extended jurisdiction" must go straight to the Court of Appeal.

[3] The power of the High Court to grant extended jurisdiction to a Magistrate is contained in Section 4(2) of the Criminal Procedure Decree 2009. That section reads;

"Not withstanding the provisions of sub-section (1), a judge of the High Court may, by order under his or her hand and the seal of the High Court, in any particular case of class of case, invest a Magistrate with jurisdiction to try any offence which, in the absence of such order, would be beyond the Magistrates jurisdiction."

[4] Mr. Lomolomo for the Applicants submits that a Magistrate is still a Magistrate even with extended jurisdiction, and that extended jurisdiction does not confer on him the full powers of a High Court Judge. He argues that Section XV of the Criminal Procedure Code, dealing with appeals from the Magistrates Court, would have made explicit provisions if the High Court were to be by-passed on appeals from an "extended jurisdiction" Court. He submits that although the Magistrate has extended jurisdiction to try the case, he is nevertheless sitting as a Magistrate and not a Judge.

[5] Mr Pillay for the State replies that an identical extended jurisdiction provision was provided for in the old Criminal Procedure Code and was used frequently to send illicit drug cases down to the Magistrates to deal with. He has produced four cases in which the Fiji Court of Appeal has dealt with appeals in such cases, the appeals having come directly from decisions of Magistrates acting with extended jurisdiction. (the four cases he refers to are Tirai AAU 0023.009, Fifita AAU0024.2009, Baleisavu AAU0017.2009 and Tulele Misc.Action 04 of 2008S). There appear to be no cases from the Court of Appeal analyzing the comparative respective jurisdictions of that Court and this Court in the case of appeals from an extended jurisdiction matter; these four cases merely assuming that the appeals must lie directly to the Court of Appeal.

[6] The submissions made by Counsel for the Appellants in that a Magistrate hearing a case with extended jurisdiction is not the High Court but a Magistrates Court, with a fixed legislative framework for appealing to the High Court, have a great deal of force. However, this Court is nevertheless bound by the practice seemingly adopted by the Court of Appeal to hear such appeals at least on the four occasions presented to me (supra). It would seem that the Court of Appeal has never had to make a decision on this point and that Court may wish at some stage to do so, to finally determine the issue. But in the interim, that being the apparent practice, this Court is bound by the precedents.

[7] This Court therefore has no jurisdiction to hear the present appeal.

Paul K. Madigan
JUDGE

At Labasa
30th September 2011