Suva Magistrate Jioji Boseiwaqa has discharged a person earlier charged with one count of disobedience of lawful order as he said that there are two conflicting decisions in the High Court regarding offences under the Public Health Act 2009 that need to be resolved by the Fiji Court of Appeal.
Sixtus Torokana was earlier charged with disobeying a lawful order by being found without reasonable cause at Rewa Street at 1.10 am on April 3rd this year within the curfew hours announced by the Prime Minister.
Torokana had pleaded guilty to the charge and also admitted the summary of facts.
Magistrate Boseiwaqa says the court has considered the defendant’s mitigation. He says Torokana is married at 38 years of age, is a graduate student at the university in forensic accounting, he works for Solomon Islands Ports Authority, pleaded guilty, is a first offender, showed remorse and cooperated with the Police.
The magistrate says he has considered the High Court decision by Justice Vincent Perera on April 16th, Justice Salesi Temo’s decision on May 14th and also considered the declaration and order of the Acting Chief Justice Kamal Kumar on May 18th purporting to review and rescind the judgement of Justice Temo.
Torokana has been discharged under the Criminal Procedure Act 2009.
Justice Perera’s decision
On 16th April, 2020, High Court Judge Justice Vinsent Perera set aside the ruling of Nadi Magistrate, Siromi Turaga who had earlier acquitted two people charged with Failure to Comply with Orders of the Public Health Act.
Magistrate Turaga had said in his ruling that the prosecution is prosecuting the accused on a non-existent law and the charge is bad in law.
Justice Perera reviewed the magistrate’s ruling after the matter was handed to him for review by Acting Chief Justice Kamal Kumar.
Justice Perera set aside the orders made by Magistrate Turaga on the grounds that the charge did say the accused failed to comply with section 69(1)(c) of the Public Health Act 1935 and the Public Health (Infectious Disease Regulation, 2020), the orders were issued by the Ministry for Health, the magistrate should have allowed the prosecution to amend the charge by deleting "Prime Minister' to "Minister for Health"; and the implementation of curfew orders was approved by the Minister for Health and Medical Services.
Justice Perera also stated that the notice of the directives was given by the Permanent Secretary for Health and Medical Services via Extraordinary Gazette No.32 published on 4th April 2020.
Appeal on Justice Perera’s decision
A Petition of Appeal has been filed against the decision of High Court Judge Justice Vincent Perera to set aside the ruling of Nadi Magistrate Siromi Turaga.
It has been filed in the Court of Appeal by law firm Vosarogo Lawyers on behalf of the appellants Ravin Rohit Lal and Shalvin Chand.
These two men who had pleaded guilty in the Nadi Magistrates Court on 10th April were acquitted by Magistrate Turaga on 15th April.
Magistrate Turaga had ruled that even though the two men had pleaded guilty, they had pleaded guilty to a charge that was bad in law and the prosecution was prosecuting the accused on a non-existent law.
Under the particulars of the charge by Police, Lal and Chand on the 9th of April, 2020 in Nadi without lawful exercise failed to comply with orders of the Prime Minister of Fiji by breaking the curfew hours, an order that was deemed necessary for the protection of public health from an infectious disease, namely Novel Coronavirus.
In his judgement on 15th April, Magistrate Turaga said the prosecution is relying on a declaration by the Prime Minister but not made by the Minister of Health pursuant to his powers set out in section (69)1 of the principal Act nor made pursuant to the Public Health [Infectious Diseases] Regulation 2020.
Lal and Chand intend to appeal against the revision decision on several grounds.
The first ground is "that the learned judge erred in law in making the orders that it did, to the prejudice of the Appellants without giving them the opportunity to be heard either by themselves or by their lawyers as mandatory under Section 262(2) of the Criminal Procedure Act 2009."
They are also appealing on the ground "that the learned judge was prevented by-law under section 262(1)(b) of the Criminal Procedure Act 2009 from exercising revision jurisdiction on an order of acquittal by the Magistrates Court and that the proper course of action was for the State to appeal against the decision of the Magistrates Court, which procedure wasn't exercised."
The third ground is "that the learned trial Magistrate was correct in identifying that the charge was defectively pleaded and that no such application to amend was made by the State and as, the consequential result would have been an acquittal based on law."
Lal and Chand also want the revision judgement dated 16th April 2020 of the Suva High Court be set aside and the consequential orders therein be quashed as being manifestly unsafe, perverse and a miscarry of justice.
They also want the Court of Appeal to confirm the orders of acquittal of the Nadi Magistrates Court dated 15th April 2020.
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