State v Ratuyawa; State v Yauta; State v Toloi [2012] FJHC 1382; HAM015.2012S; HAM007.2012S; HAM010.2012S (19 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

CRIMINAL REVIEW CASE NO. HAM 015 OF 2012S

STATE

vs

1. NEMANI RATUYAWA
2. PAULA NAWADRADRA
   

CRIMINAL REVIEW CASE NO. HAM 007 OF 2012S

STATE

vs

JOSESE YAUTA

CRIMINAL REVIEW CASE NO. HAM 010 OF 2012S

STATE

vs

ANASA TOLOI

Counsel : Mr. S. Vodokisolomone for State
All Accuseds – In Person
Hearing : 1st October, 2012
Ruling : 19th October, 2012

RULING ON WHETHER OR NOT MAGISTRATE COURT HAD JURISDICTION

1. The above cases involved similar issues of law, and thus as a matter of convenience, it was considered prudent to deal with the cases together. In Criminal Review Case No. HAM 015 of 2012S, both accuseds were charged with "unlawful cultivation of illicit drugs", contrary to section 5(a) of the Illicit Drugs Act 2004. The total weight of the illicit drug involved was 69.5 kg of cannabis sativa. In Criminal Review Case No. HAM 007 of 2012S, the accused was charged with a similar offence, and the weight of the illicit drug was 42.5 kg of cannabis sativa. In Criminal Review Case No. HAM 010 of 2012S, the accused was also charged with a similar offence, and the illicit drugs involved weighted 23.5 kg of cannabis sativa.
   
2. Section 260(1) of the Criminal Procedure Decree 2009, reads as follows:
   

"...The High Court may call for and examine the record of any criminal proceedings before any Magistrates Court for the purpose of satisfying itself as to –

1. the correctness, legality or propriety of any finding, sentence or order recorded or passed; and
   
2. the regularity of any proceedings of any Magistrate Court..."
   

3. Section 262(1) of the Criminal Procedure Decree 2009, reads as follows:
   

"...In the case of any proceedings in a Magistrate Court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may –

1. in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 256 and 257; and
   
2. in the case of any order other than an order of acquittal, alter or reverse such order..."
   

4. Section 256(2) of the Criminal Procedure Decree 2009, reads as follows:
   

"...The High Court may –

1. confirm, reverse or vary the decision of the Magistrate Court; or
   
2. remit the matter with the opinion of the High Court to the Magistrate Court; or
   

100. order a new trial; or
     

4. order trial by a court of competent jurisdiction; or
   
5. make such other order in the matter as to it may seem just, and may by such order exercise any power which the Magistrates Court might have exercised; or
   
6. the High Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred..."
   

5. I have carefully read and considered the Magistrate Court records of the three cases mentioned above. When the cases were first called in January and February 2012 in the Magistrate Courts, the illicit drugs guideline Court of Appeal judgment of Kini Sulua, Michael Ashley Chandra v The State, Criminal Appeal No. AAU 0093 of 2008 and AAU 0074 of 2008, was still been considered by the Court of Appeal. The appeal was heard on 11th March 2011, and the judgment delivered on 31st May, 2012. The majority judgment was delivered by myself and Mr. Justice Priyantha Fernando. His Lordship Mr. Justice William Marshall delivered the minority judgment. So, in a sense when the three cases now been reviewed, were decided, the Learned Chief Magistrates did so, without the guidance of Kini Sulua, Michael Ashley Chandra v The State (supra). Strictly speaking, it was not the fault of the Learned Chief Magistrate, as the above judgment was yet to be delivered on 31st May, 2012.
   
6. In any event, subject to any decision of the Supreme Court of Fiji, the majority decision in Kini Sulua, Michael Ashley Chandra v The State (supra) must be followed, at least in the Magistrate Courts. Kini Sulua, Michael Ashley Chandra v The State (supra) had devised four categories as follows:
   

"...i) Category 1: possession of 0 to 100 grams of cannabis sativa – a non-custodial sentence to be given, for example, fines, community service, counseling, discharge with a strong warning, etc. Only in the worst cases, should a suspended prison sentence or a short sharp prison sentence be considered.

ii) Category 2: possession of 100 to 1,000 gram of cannabis sativa. Tariff should be a sentence between 1 to 3 years imprisonment, with those possessing below 500 grams, being sentenced to less than 2 years, and those possessing more than 500 grams, be sentenced to more than 2 years imprisonment.

iii) Category 3: possessing 1,000 to 4,000 grams of cannabis sativa. Tariff should be a sentence between 3 to 7 years, with those possessing less than 2,500 grams, be sentenced to less than 4 years imprisonment, and those possessing more than 2,500 grams, be sentenced to more than 4 years.

iv) Category 4: possessing 4,000 grams and above of cannabis sativa. Tariff should be a sentence between 7 to 14 years imprisonment..."

7. Although the above four categories referred to "possession" offences only, by virtue of paragraph 116 of my judgment in Kini Sulua, Michael Ashley Chandra v The State (supra), the categories applied to "cultivation" offences also. What is important is the weight of the illicit drugs involved, as determined by the government analyst's certificate. In the three cases been revised, the weight of the illicit drugs involved were all over 4 kg. The three cases are certainly category 4 cases. By virtue of the authority of the majority decision in Kini Sulua, Michael Ashley Chandra v The State (supra), the Magistrate Court had no jurisdiction to try category 4 cases – see paragraph 119, pages 58 and 59 of the above decision. The Magistrate Court should have transferred the three cases to the High Court for trial.
   
8. Given the above, and pursuant to section 256(2) of the Criminal Procedure Decree 2009, I make the following orders:
   
   • (i) The convictions and sentences in Kadavu Magistrate Court Criminal Cases No. 009 of 2012; 047 of 2012; and 022 of 2012 are quashed and set aside;
     
   • (ii) The above three cases are remitted to the Learned Chief Magistrate, at Suva Magistrate Court, with the direction to transfer the cases to the High Court for trial, before 15th February, 2013;
     
   • (iii) The accuseds in the above three files are remanded in custody, until further orders of the High Court.
     

I order so accordingly.

Salesi Temo
JUDGE

Solicitor for State : Office of Director of Public Prosecution, Suva
Solicitor for Accused : In Person