Korolmaviui v R [2003] TVHC 10; Case No 02 of 2002 (9 April 2003)

IN THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO. 2/2002

URAIA KOROLMAVIU AND ROKOTINA VILISI

v

R

James Duckworth for the appellants
Sa'aga Talu for the respondent

Hearing: 8 April 2003
Judgment: 9 April 2003

JUDGMENT

The two appellants are Fijian and were charged with being unlawfully present in Tuvalu, contrary to section 17 (1) (i) of the Immigration Act Cap 77. They both pleaded guilty.

The facts were that they had each arrived in the country and been granted a permit to enter. In each case when it expired, it had been renewed for a further period. Each appellant had then failed to pay for any further extension but had stayed on in the country.

In mitigation they asked the magistrate for a chance to pay for the permits and pointed out that they had not been working. They were each sentenced to a fine of $50.00 and ordered to leave Tuvalu within 2 weeks.

They appeal against the order to leave the country.

Section 17 provides that anyone guilty of an offence against the Act (with one exception not relevant in this case) shall be liable to a fine of $400.00 and to imprisonment for 6 months. That is the limit of the court's power of sentence.

The power to order the removal of persons under the Act is found in section 13 but the section makes it clear that it is only the Minister who can exercise that power. The magistrate had no such power and the appeal is allowed. The order to leave the country is quashed.

I would add that the information in this case charged the two appellants jointly in a single charge yet the facts showed they arrived on different dates and showed no other connection between them. There was no reason to join them in the same charge and, had objection been taken, it would have been void for misjoinder. It is important that the court and counsel are always careful to see that such failures of procedure do not occur or, if they do, that they are corrected at the right time.

DATED this 9^th day of April, 2003

Gordon Ward
Chief Justice