State v Tawatatau [2017] FJMC 11; Criminal Case 886.2011 (12 January 2017)

IN THE MAGISTRATE’S COURT
SITTING AT NAUSORI

Criminal Case No. 886 of 2011

State

.v.

Joeli Tawatatau (1^st accused)
Leone Vakarusaqoli (2^nd accused)

Prosecution : DPP’s Office - Mr. Taitusi Tuenuku

1^st Accused : Present – Mr E Koroi

2^nd Accused : Present – Mr R Kumar

Ruling

Introduction

The accused persons were charged as follows:

Count one, Aggravated Robbery, contrary to Section 311 (1)(a) of Crimes Decree Number 44 of 2009. The Particulars of Offence is that:

"Joeli Tawatau and Leone Vakarusaqoli on the 31^st day of March, 2011, at Naduru Road, Nausori in the Central Division, immediately before committing theft, used force and robbed Ravin Prasad of assorted jewelleries valued $9500.00 cash $200.00, one easy-tel phone valued $90.00, one nokia phone valued at $50.00, one Samsung mobile valued at $2000.00 and all to the total value of $12140.00."

Count two, Resisting arrest, contrary to Section 277 (a) of the Crimes Decree. The Particulars of the offence is that:

“Joeli Tawatatau on the 31^st day of March 2011 at Tacirua in the Central division resisted lawful apprehension.”

The High Court pursuant to Section 4 (2) of the Criminal Procedure Decree 2009 extended the jurisdiction of the Court to try this case.

Following a hearing on 27^th June 2016 the Court found the accused persons guilty of the charges and convicted them accordingly. Before the accused persons were sentenced the 1^st accused person relying on Section 239 (1) of the Criminal Procedure Decree made an application for the arrest of judgment.

The Law

Section 239 (1) of the Criminal Procedure Decree provides that "the accused person may, at any time before sentence, whether on a plea of guilty or otherwise, move in arrest of judgment on the ground that the information does not, after any amendment which the court has made and had power to make, state any offence which the court has power to try.

(2) The court may, in its discretion, either hear and determine the matter during the same sitting, or adjourn the hearing of it to a future time to be fixed for that purpose.

(3) If the court decides in favour of the accused he or she shall be discharged from that information.”

The Defence Submission

The 1^st accused, Joeli Tawatau relied on Section 239 (1) of the Criminal Procedure Decree. The 2^nd Accused did not support or make any submission on the application by the 1^st accused.

The submission for the 1^st Accused basically can be summarised as that the Court did not have jurisdiction to deal with the matter. Furthermore the 1^st accused contended that the Magistrate was not fair in dealing with the matter as regards to rules of evidence and the law, did not observe the processes and procedures, and that there was inordinate delay. The 1^st accused was of the view that the voir dire was only for the 2^nd accused.

The Prosecution Position

The Prosecution position was that the “submission made by the applicant regarding arrest of judgment do not address section 239 of the Criminal Procedure Decree....” Furthermore the Prosecution is of the view that the issued raised by the 1^st Accused are points of appeal and not for this Court to deal with.

Analysis in relation to Submission and the Laws
Having noted the application made by the 1^st accused this court has noted the submissions made by the 1^st accused and the prosecution.

This Court finds that the application under Section 239 of the Criminal Procedure Code Decree 2009 that was made by the 1^st accused falls under “Part XIV – Procedure in Trials before the High Court”. Part XIV deals with procedures in the High Court. The application made by the 1^st accused is not an appropriate application in the Magistrates’ Court as this Court even though it has been granted extended jurisdiction is still a Magistrates’ Court the procedures that will be adopted in this Court will continue to be those of the Magistrates’ Court not that of the High Court. Section 239 application can be made in the High Court at the relevant time and that provision cannot be used in the Magistrates’ Court.

For the following reasons the application fails and is dismissed.

Chaitanya Lakshman

Resident Magistrate

12^th January 2017