Cava v State [2022] FJSC 1; CAV 0028 of 2014 (13 January 2022)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. CAV 0028 of 2014
[Court of Appeal No. AAU 19 of 2009]

BETWEEN:

ILAISA SOUSOU CAVA
Applicant

AND:

THE STATE

Respondent

CORAM:

Hon. Mr. Justice Kamal Kumar,

Chief Justice and President of Supreme Court

COUNSEL:

Applicant in Person

Mr. A. Jack for the Respondent

Hearing:

13 April 2021

Ruling:

13 January 2022

R U L I N G
(Application for Enlargement of Time)

Introduction

[1] On 28 October 2020, Applicant filed application for Leave to Appeal out of time the sentence passed by High Court for the offence of murder.

[2] The Application was called on 4 February, 2021 when parties were directed to file Affidavit/Submissions and the Application was adjourned to 11 March 2021, for hearing.

[3] Both parties filed submissions and relied on it.

Preliminary Objections

[4] The Respondent’s Counsel raised the issue that the Court have no jurisdiction to entertain the Application for the following reasons:

(i) The Applicant appealed his conviction and sentence to Court of Appeal;

(ii) The Applicant abandoned his appeal against sentence and as such Court of Appeal did not consider the sentence appeal;

(iii) As such the Applicant has no decision to appeal from.

[5] Section 98(3) of the Constitution of the Republic of Fiji provides as follows:-

“The Supreme Court –

(a) Is the final appellate court;

(b) Has the exclusive jurisdiction, subject to such requirements as prescribed by written law, to hear and determine appeals from all final judgments of the Court of Appeal; and

(c) Has original jurisdiction to hear and determine constitutional question referred under section 91(5).”

[6] Section 98(3)(b) is applicable in this situation.

[7] Since, the Applicant abandoned his appeal against sentence in Court of Appeal, there is no judgment of Court of Appeal on sentence passed by High Court.

[8] As such, there is nothing for this Court to determine.

[9] This Court accepts and endorses the Respondent’s Counsels’ submission that this Court has no jurisdiction to determine the Application for Enlargement of Time to Appeal against sentence passed by High Court.

[10] If Applicant wishes to do so then proper course to take in this matter would be for the:-

(i) Applicant to seek enlargement of time to appeal from Court of Appeal;

(ii) If time for Appeal is extended by Court of Appeal then he may take appropriate action in Court of Appeal.

Order:

(i) Application for Enlargement of Time is dismissed and struck out;

(ii) Each party is to bear their own costs.

Hon. Justice Kamal Kumar

President, Supreme Court

Solicitors

Applicant in Person

Office of the Director of Public Prosecutions for Respondent