IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0027 OF 2008

BETWEEN:

ELIKI MOTOTABUA

AND:

THE STATE

Counsel: Applicant in Person,
Mr. S. Qica for the State

Date of Hearing: Thursday 10th April, 2008
Date of Ruling: Friday 11th April, 2008

JUDGMENT

[1] On 22nd February 2005, Mr. Mototabua was discharged by the Magistrates' Courts on a charge of possession of drugs.

[2] The discharge order was made under section 201(2)(b)(ii) of the Criminal Procedure Code. A discharge order is not a bar to subsequent proceedings for the same offence.

[3] On 6th February 2008, after two years from the date of the discharge, Mr. Mototabua filed an application to appeal out of time against the discharge order.

[4] The ground advanced for appealing the discharge order is that the police want to re-charge the applicant for an offence he was discharged two years ago.

[5] Counsel for the State submits that his office via a letter dated 30th October 2006, has advised the police that Mr. Mototabua cannot be re-charged for the offence for some technical reasons. A copy of the letter was given to Mr. Mototabua in Court.

[6] The State submits Mr. Mototabua's claim is baseless and his ground of appeal is a moot point. I agree.

[7] I find no merits in Mr. Mototabua's application. The letter dated 30th October 2006 from the Director of Public Prosecutions makes it very clear that the State will not re-charge Mr. Mototabua for the offence he was discharged on 22nd February 2005.

[8] For these reasons, the application to appeal out of time is refused.

Daniel Goundar
JUDGE
At Suva
Friday 11th April, 2008

Solicitors:
In Person for the Applicant
Office of the Director of Public Prosecutions, Suva for the State