Usman v State [2024] FJHC 507; HAM203.2024 (5 August 2024)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION
Criminal Misc No. HAM 203 OF 2024

TASIR USMAN

Appellant

V

STATE

Respondent

Counsel: Ms K Boseiwaqa for the Appellant

Mr Nofaga for the Respondent

Hearing: 5 August 2024

Judgment: 5 August 2024

EXTEMPORE JUDGMENT

[1] Mr Usman has appealed from the learned Magistrate's decision of 22 September 2023, sentencing Mr. Usman on three counts for which he pleaded guilty. The first count being that Mr. Usman threw prohibited articles into the Suva Remand Centre on 28 April 2020. The second and third counts were in respect to unlawful possession of illicit drugs being cannabis sativa and methamphetamine. Mr Usman was sentenced to a period of two years and eight months, with a non-parole period of two years and two months. The learned Magistrate made it clear, at paragraph 37 of the decision, that the sentence was intended to send a message to the public that the court will not tolerate offenders who are part of the supply chain of hard drugs in Fiji.

[2] Mr Usman appeals from the sentence, specifically the non-parole period which he complains is too close to the actual sentence. With respect to his filing of the appeal, the accepted facts are these:

1. The Magistrate’s decision was issued on 22 September 2023. Mr Usman was informed in the decision that he had 28 days to file an appeal (the period expiring on 20 October 2023).
   
2. On 29 September 2023, Mr. Usman completed his appeal application and handed it to a Corrections Officer, being Sergeant Vaiti Waqatabu, for filing.
   
3. Sergeant Waqatabu states in his affidavit dated 2 August 2024, ‘I had dispatched the appeal documents at the Fiji Court of Appeal on the 4^th of October 2023 as the documents were addressed to the Fiji Court of Appeal Registry’. Sergeant Waqatabu annexed a copy of the Dispatch Book record which shows that on 4 October 2023, the application by Mr. Usman was indeed dispatched to the Court of Appeal Registry and it is recorded therein that the application was acknowledged by the Registry as received at 9.45am on 4 October 2023. Clearly, the application should have been filed with the High Court Registry. We do not know what the Court of Appeal Registry has done with the application.
   
4. The next relevant development is receipt by the High Court Registry on 7 March 2024, with a cover letter from the Fiji Corrections Service, of Mr. Usman's appeal.
   
5. A formal Motion to enlarge time was filed for Mr Usman on 25 July 2024 with a supporting affidavit from Mr. Usman who states that after handing the application to Sergeant Waqatabu on 29 September 2023, he followed up the matter to find out what was happening with his appeal. Eventually, he was informed by another Corrections Officer that there was no record of the application having been filed, and therefore Mr Usman filed the second appeal in March 2024.
   
6. The State has filed an affidavit in opposition for Sergeant Waqatabu dated 2 August 2024.

Legislative requirements for filing appeal

[3] Pursuant to s 248(1) of the Criminal Procedure Act, an appeal that is brought from the Magistrates Court must be filed with the High Court within 28 days of the decision. The High Court does have a discretion to enlarge the time ‘for good cause’. As both counsel have stated, there are several factors for the court to consider when deciding whether to enlarge the time. These are:

1. The reasons for the delay;
   
2. The length of the delay;
   
3. The merits of the substantive appeal; and
   
4. Whether the respondent party will be prejudiced.
   

[4] The wider question, that the four factors go to, is whether, overall, it is in the interests of justice to grant the enlargement.

Decision

[5] The length of the delay is a little over four months, being neither short nor inordinate. There is no prejudice to the Respondent with the delay.

[6] The reason for the delay stems from the error with filing the original appeal with the Court of Appeal Registry rather than the High Court Registry as should have been done. The Respondent opposes the application for enlargement on the basis that the Corrections Officer was not responsible for the error. It appears that Mr Usman believes he did address the appeal application to the High Court. However, in the absence of being presented with the original documents I accept Sergeant Waqatabu’s evidence that it was addressed to the Court of Appeal Registry. The contemporaneous record in the Dispatch Book supports this. If the documents were addressed to the High Court Registry it is unlikely that the Court of Appeal Registry would have accepted receipt of the documents. As such, I accept that Fiji Corrections was not responsible for the error.

[7] However, that is not the end of the matter. Simply because Corrections was not at fault does not preclude Mr Usman from being permitted to pursue his appeal. I accept that he most likely addressed his appeal to the Court of Appeal Registry in error. But, at the same time, Mr. Usman took steps, in a timely manner, to appeal his sentence. Only one week after the sentence he handed his written appeal to Sergeant Waqatabu. He did not leave the matter until the 11^th hour. By his evidence he followed the matter up with Corrections and for a time received no indication what had happened. He was, of course, incarcerated and could not personally check the status of his appeal with the Registry. It is unclear what the Court of Appeal Registry have done with his appeal but there is no evidence before me that the Registry informed Mr Usman that he had filed his appeal with the wrong Registry. Indeed, if it had done so shortly after receiving the appeal Mr Usman would still likely have been able to file his appeal in the High Court within the 28-day period.

[8] I have decided that the interests of justice lie with granting the enlargement. Mr Usman should not, on the basis of his single oversight, be denied his right of appeal.

[9] I have not considered the merits of the substantive appeal. Both counsel advanced argument on the issue. However, I will deal with the merits at the substantive hearing of the appeal.

[10] The appeal is scheduled for hearing on 26 August 2024.

.....................................
D. K. L. Tuiqereqere
JUDGE

Solicitors:
Office of Legal Aid Commission for the Appellant
Office of Director of Public Prosecutions for the Respondent