Namua v State [2012] FJHC 834; HAM153.2011 (1 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL CASE NO: HAM 153 OF 2011
MC/LAUTOKA : 418/2010

BETWEEN:

1. PAULA NAMUA
2. DWAYNE HICKS
APPLICANTS

AND:

STATE
RESPONDENT

Before: Priyantha Nawana J.
Applicant in person
Mr T Qualinauci for Respondent
Date of Hearing: 01 February 2012

JUDGMENT

1 The 1st applicant, Paula Namua, and the 2nd applicant, Dwayne Hicks, stood charged in count 1 for Escaping from Lawful Custody under Section 196 of the Criminal Procedure (sic) Decree 43 of 2009. In addition, the 1st applicant stood charged for Serious Assault on Police Constable 4434 Josaia, and, the 2nd applicant for Serious Assault on Police Constable 3074 Inoke Colati on 24 July 2010 at Lautoka. The two charges were made against each accused under Section 277 (b) of the Criminal Procedure (sic) Decree No. 44 of 2009 in terms of count 2 and 4 of the charge sheet.

2 The 1st applicant pleaded guilty to the charges in count Nos. 1 and 2 on 04 October 2010. The 2nd applicant pleaded guilty to the charges in count Nos. 1 and 4 on 23 August 2010. Learned Magistrate convicted each applicant on each plea of guilt. Learned Magistrate having considered submissions both of the prosecution and of the two convicted applicants on mitigation, sentenced each applicant to a term of 2 year imprisonment on 14 October 2010.

3 Each applicant had preferred an appeal against the respective sentence. His Lordship Madigan J in his judgment of 27 April 2011, having considered the appeals dismissed both appeals, holding that there were no merits in their grounds of appeal.

4 The two applicants now seek leave to appeal against the convictions out of time in pursuance of their applications dated 19 August 2011. The principal basis of the challenge against the conviction is that they have pleaded guilty to defective charges as reference had been made to the 'Criminal Procedure' Decree instead of the 'Crimes Decree' No. 44 of 2009 in respective counts.

5 At the hearing before me, I called upon both applicants to make submissions in support of their applications for leave to appeal out of time. Both applicants contended that the respective charges were defective and therefore convictions were erroneous in view of the mentioning of the wrong Decree. Mr Qualinauci, appearing on behalf of the State conceded that there was an inadvertent reference to 'the Criminal Procedure Decree' instead of the 'Crimes Decree'. Nevertheless, he submitted that, the charges clearly had set out the correct section along with details of offending in respect of the victims, the place and the date.

6 I have considered the applications for leave to appeal which are more than 10 months out of time in light of the submissions of the applicants and the learned counsel of the State. I observe that there are no reasons given for the delay in appealing out of time. I, therefore, find no good cause shown in accordance with the provisions of Section 248 of the Criminal Procedure Decree No. 43 of 2009 to admit the appeals out of time.

7 I have considered the contention of the applicants that the convictions were erroneous in view of the wrong reference to the Decree. I find that there was no room for each applicant to have been misled by this inadvertent reference to the wrong Decree; and, the charges had been formulated in such a manner with sufficient information and particulars of the offences with which they were charged before the Magistrate.

8 In the circumstances I see no either factual or legal basis to allow the application for leave to appeal out of time. Each application is refused accordingly.

30 days to appeal.

Priyantha Nawana
Judge
High Court
Lautoka
01 February 2012