IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0071 OF 2005

BETWEEN:

ELIKI MOTOTABUA
Applicant

AND:

STATE
Respondent

Counsel: Applicant – In Person
Ms S. Puamau – for the State

Date of Hearing/Ruling: 23rd January, 2006

EXTEMPORÉ RULING

This is an Extemporé Ruling given in the course of what was to be an appeal to this Court from an interlocutory decision of the Magistrates Court at Nausori given before a criminal trial commenced. As such I reserve the right to perfect the judgment once it has been transcribed for me.

Background

This putative appellant was charged with two counts of being found in possession of dangerous drugs contrary to Section 8(b) of the Dangerous Drug Decree 1991.

On the 4th of February, 2003 he appeared in the Magistrates Court in response to a summons to appear and entered not guilty pleas in respect of the two counts. 

On the 6th of July, 2004 he applied for a stay of proceedings due to unnecessary delay.

On the 9th of September, 2004 the learned Magistrate delivered her ruling in relation to that stay application where she said she was not satisfied that there had been unreasonable delay in disposing of the case.

On the 12th of October, 2004 the appellant applied for the learned Magistrate to disqualify herself from hearing the case. 

On the 15th of October, 2004 the learned Magistrate rejected that ruling. The learned Magistrate refused the application that she disqualify herself from hearing the appellant’s case in the court of first instance.

The case then carried on throughout the later part of 2005 but seems to have stalled in the Magistrates Registry pending the determination of this appeal.

Appeals from Magistrates Courts

Section 308 of the Criminal Procedure Code describes the kinds of orders and judgments that can be appealed from the Magistrates Courts to the High Court.

The preliminary issue that I must dispose of this morning is whether an application for stay or an application to recuse result in orders within the terms of the definition of the section that are capable of being appealed to the High Court on an interlocutory fashion, that is before the substantive case has been concluded, as opposed to those orders forming part of an appeal against conviction.

In my view these sorts of interlocutory orders are not amendable to appeal.

The word “Order” in Section 308 must be read ejusdem generis with the words “judgment” and “sentence” contained in sub-section 8 so that the reference is to an order in the nature of one determining the case. Therefore, in my view, no right of interlocutory appeal exists from a refusal of a stay, a refusal of a bail or a refusal to recuse pending trial (cf Asgar Ali –v- R [1964] 10 FLR 235 at 237, Lauzik Mukesh Chand s/o Muni Deo –v- State [1999] AAU0013.1998S (on appeal from HAC0056D/97S), Attorney-General –v- Yee Noon [1964] 10 FLR249”.

Accordingly, I do not have jurisdiction to entertain this appeal. The file is referred back to the Magistrates Court for determination of the substantive matter. Where possible I direct that the substantive hearing be brought on at the earliest opportunity and for these reasons the miscellaneous application No. 71 of 2005 and its accompanying appeal are dismissed and the matter is referred back to the Magistrates Court.

The appellant seeks that I grant a stay of this judgment and its effective orders pending his intention to appeal to the Court of Appeal. He gives no grounds for that application.

I can discern no merit in that course of action.

What needs to happen is that this matter needs to proceed through the Magistrates Court so that a decision is given on the substantive matter. There can be no prejudice to the accused as he will have these issues preserved for him, if necessary, in his conviction appeal. In my view those grounds of appeal are only activated once the substantive hearing has been conducted. 

Gerard Winter
JUDGE

At Suva
23rd January, 2006