IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: 42 OF 2014

BETWEEN:

ROHIT SHALENDRA SINGH
Appellant

AND:

STATE
Respondent

Counsels : Mr. K. Tunidau for the Appellant 
Ms. Juleen JM Fatiaki for the Respondent 

Date of Hearing : 10 December 2014
Date of Judgment : 11 December 2014

JUDGMENT

1.	The appellant was charged before the Lautoka Magistrate under following count:

FIRST COUNT
Statement of Offence
Possession of Illicit Drugs: - Contrary to section 5 (a) of the Illicit Drug Control Act 2004.

Particulars of the Offence
Rohit Shalendra Singh s/o Ramendra Singhon the 3rdday of June 2008at Lautoka in the Western Division, without lawful authority had in possession 130.5 grams of Cannabis or Indian hemp, an illicit drug. 

2.	The appellant pleaded not guilty and after trial he was convicted on 19.8.2014.He was sentenced on 21.8.2014 to 2 years and 6 months imprisonment.

3.	This appeal against the conviction and sentence was filed on 22.9.2014 within time. 

4.	Although the learned Magistrate was given extended jurisdiction by this Court in this matter it was under Section 5 of the Criminal Procedure Decree. Therefore this Court has jurisdiction to hear this appeal as decided by Hon. Mr. Justice D. Goundar in Smith v State [2014] FJCA 146; AAU 128.2013 (15 September 2014).

5.	The ground of appeal against the conviction are:

(i)	The trial Magistrate erred in law and fact when he:

a)	Failed to ascertain from the appellant before the trail whether the appellant challenges his confession in the police caution interview statement.

b)	Admitted the appellant's caution interview statement into evidence without testing its admissibility.

c)	Relied on the confession of the appellant in the caution interview statement to convict him in the absence of the factors in a) and b) hereinabove. 

(ii)	The trial Magistrate erred in law and in fact by failing to establish any chain of evidence on the alleged drug where it was found to when it was analyzed by the analyst.

(iii)	The trial Magistrate erred in law and in fact by admitting the analyst report without establishing its authenticity and in particular whether the drug analyzed was that established via the chain of evidence referred to at ground 2 hereinabove.

(iv)	The trial Magistrate erred in law and in fact by failing to consider, on the totality of the evidence, whether the appellant had 'knowledge' of the alleged drug being in his house or in the possession of other person in his house.

6.	The grounds of appeal against the sentence are:

(i)	The sentence is harsh and excessive in all the circumstances of the case.
(ii)	The trail Magistrate took into account irrelevant matters when imposing the sentence. 

7.	Both parties have filed written submissions.State in their submission has conceded for a re-trial on the basis that the learned Magistrate had failed to hold a voir-dire inquiry before he admitted the caution interview statement.

8.	In Rokonabetev The State [2006] FJCA 40; AAU0048.2005S (14 July 2006) Court of Appeal held: 

'[24] Whenever the court it advised that there is challenge to the confession, it must hold a trial within a trial on the issue of admissibility unless counsel for the defence specifically declines such a hearing. When the accused is not represented, a trial with a trial must always be held. At the conclusion of the trial within a trial, a ruling must be given before the principal trial proceeds further. Where the confession is so crucial to the prosecution case that its exclusion will result in there being no case to answer, the trial within a trial should be held at the outset of the trial. In other cases, the court may decide to wait until the evidence of the disputed confession is to be led.'

9.	Careful perusal of the copy record confirms that the learned Magistrate had failed to hold a voir-dire inquiry. Therefore ground 1 of the grounds of appeal succeeds. 

10.	The other appeal grounds on conviction and sentence are not considered as this Court is bound to order a re-trial in this case. 

11.	Therefore the appeal against the conviction is allowed. The conviction and sentence set a side. The case is remitted to the Magistrate Court for trial by a different Magistrate.

12.	Case to be mentioned in Lautoka Magistrate Court on 12.12.2014. 

Sudharshana De Silva
JUDGE

At Lautoka 
11th December 2014

Solicitors : Kevueli Tunidau Lawyers for the Appellant 
Office of the Director of Public Prosecutions for Respondent