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Tanaqereqere v The State [2005] FJHC 337; HAA0113.2005L (16 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0113 OF 2005L

LUKE TANAQEREQERE

v.

THE STATE

Ms. J. Nair for the Appellant
Mr. S. Qica for the State

Date of Hearing: 16 November 2005
Date of Ruling: 16 November 2005

EXTEMPORE RULING ON APPEAL

The appellant in this matter was charged pursuant to the provisions of Dangerous Drugs Act, Cap. 114. Particulars of the offence were that the appellant on the 31^st December 2004 was found in possession of 1,652.2 grams of Indian Hemp. The appellant entered a plea of guilty before the Magistrates Court and was subsequently convicted and sentenced to imprisonment for 5 years.

The appellant appeals against the conviction and sentence.

Madam Justice Shameem in Senitiki Vulavou v The State – Cr. App. HAA0133 of 2005S a judgment delivered on the 31^st October 2005 the highlight of the fact that the many provisions of the Dangerous Drugs Act have been appealed and replaced by the Illicit Dangerous Drugs Act 2004. The commencement date of the Illicit Dangerous Drugs Act 2004 was the 9^th July 2004 and section 39 of that Act provides the repeal of parts of the Dangerous Drugs Act. Part II of the Act, in particular section 5 provides for the unlawful possession of dangerous drugs. A maximum sentence of life imprisonment and/or $1,000.00 fine.

The definition of illicit drugs under the Illicit Drugs Act includes the Indian Hemp or cannabis.

The appellant was convicted with respect to an offence alleged to have occurred on the 31^st December 2004, clearly after the commencement of the Illicit Drugs Act. The offence with which the appellant was charged was not an offence that existed in law on the day he was charged and accordingly the guilty plea, conviction and sentence are invalid at law and must be quashed.

The appellant’s appeal against conviction therefore succeeds.

Due to the seriousness of the alleged charge, it is in the interests of justice that the appellant to be recharged and a retrial is ordered. By virtue of the orders that I made, you are free to go and I encourage you to reside at your village.

JOHN CONNORS
JUDGE

At Lautoka
16 November 2005