Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Wakeham [2010] FJHC 54; HAC001.2010 (23 February 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAC 001 of 2010

BETWEEN:

THE STATE

AND:

ILAITIA LEWANAVANUA WAKEHAM

Criminal Case No: HAC 004 of 2010

BETWEEN:

THE STATE

AND:

JEPECA NABUNA

Criminal Case No: HAC 005 of 2010

BETWEEN:

THE STATE

AND:

TEVITA NABOSE

Counsel: Mr. M Kaisamy and Ms. S Bull for the State
Accused in Persons

Counsel: All Accused in persons

Date of Hearing: 22 February 2010
Date of Ruling: 23 February 2010

RULING

[1] These cases were transferred from the Savusavu Magistrates’ Court to the High Court pursuant to section 223 of the Criminal Procedure Code, Cap 21, on 19 February 2010. On 1 February 2010, the Criminal Procedure Decree 2009 had come into effect. The Criminal Procedure Decree 2009 repealed the Criminal Procedure Code and the Electable Offences Decree. In essence the transfer orders in these cases were made under a repealed legislation.

[2] The relevant provision under which the transfers could have been made is section 191 of the Criminal Procedure Decree 2009. Section 191 provides:

A magistrate may transfer any charges or proceedings to the High Court.

[3] Section 191 is in similar term with the repealed section 223 of the Criminal Procedure Code. The reason section 223 was being used to transfer drug related offences to the High Court was that the Criminal Procedure Code did not give jurisdiction to the Magistrates’ Court to preside over charges brought under the Illicit Drug Control Act 2004 (see, State v Joseva Lui [2006] HAA 180/05L – Ruling 18 April 2006)

[4] The Criminal Procedure Decree 2009 has fixed the lacuna in law. Under the Criminal Procedure Decree 2009, the offences are classified as an "indictable offence", an "indictable offence triable summarily" and a "summary offence".

[5] An "indictable offence" can only be tried in the High Court.

[6] An "indictable offence triable summarily" can be tried in the High Court or a Magistrates’ Court at the election of the accused person.

[7] A "summary offence" is tried in a Magistrates’ Court.

[8] However, if a legislation creating an offence does not classify it as an "indictable offence" or a "summary offence", a Magistrates’ Court can hear the matter. This power is vested pursuant to section 5(2) of the Criminal Procedure Decree 2009.

[9] The offences under the Illicit Drug Control Act 2004 are not classified as either indictable or summary offences. There is now a power vested in the Magistrates’ Court to hear the charges brought under the Illicit Drug Control Act 2004. Thus, there is no need to transfer these cases to the High Court to seek an extension of jurisdiction to a Magistrates’ Court to hear these cases.

[10] For these reasons, I hold the transfer orders made under the repealed Criminal Procedure Code were made without jurisdiction, and therefore are quashed under the revisionary jurisdiction of this Court. The cases are remitted to the Magistrates’ Court for trial. The accused persons are to appear in the Savusavu Magistrates’ Court on 17 March 2010 at 9a.m.

[11] A copy of this decision is to be forwarded to all the Magistrates.

Daniel Goundar
Judge

At Labasa
Tuesday 22 February 2010

Solicitors:
Office of the Director of Public Prosecutions for State
Accused in Persons