Apimeleki Tola v The State

• Jurisdiction: Fiji
• Court: High Court (Fiji)
• Judgment Date: 16 December 2025
• Docket Number: CRIMINAL APPEAL NO. HAA 36 OF 2025
• Date: 16 December 2025
• Counsel: Mr. Mosese Naivalu for the Appellant,Mr. John Rabuku for the Respondent

IN THE HIGH COURT OF FIJI

AT LAUTOKA

[APPELLATE JURISDICTION]

CRIMINAL APPEAL NO. HAA 36 OF 2025

In the Matter of an Appeal from the Decision of the Resident Magistrate, Magistrate's Court of Lautoka, in Criminal Case No. 751 of 2022.

Between

Apimeleki Tola

Appellant

v.

The State

Respondent

Date of Hearing: 11 December 2025

Judgment: 16 December 2025

Counsel:

Mr. Mosese Naivalu for the Appellant

Mr. John Rabuku for the Respondent

Solicitors for the Appellant: Law Naivalu, Barristers & Solicitors, Lautoka.

Solicitors for the Respondent: Office of the Director of Public Prosecutions, Lautoka.

JUDGMENT

[1] This is an Appeal made by the Appellant against his conviction imposed by the Learned Resident Magistrate, Magistrate's Court of Lautoka, in Criminal Case No. 751 of 2022, on 22 September 2025.

[2] The Appellant is a former High School Teacher and currently the Chairman of the Native Lands Commission.

[3] On 4 October 2022, the Appellant was first produced in the Magistrate's Court of Lautoka, charged with the following offences [Vide page 5 of the Magistrate's Court Record]:

FIRST COUNT

Statement of Offence (a)

SERIOUS ASSAULT: Contrary to Section 277 (b) of the Crimes Act 2009.

Particulars of Offence (b)

APIMELEKI TOLA, on the 2^nd day of October 2022, at Lautoka, in the Western Division, assaulted POLICE CONSTABLE 5891 ZOHEB ALI, thereby causing him bodily harm, in due execution of his duty.

SECOND COUNT

Statement of Offence (a)

SERIOUS ASSAULT: Contrary to Section 277 (b) of the Crimes Act 2009.

Particulars of Offence (b)

APIMELEKI TOLA, on the 2^nd day of October 2022, at Lautoka, in the Western Division, resisted his arrest by CORPORAL 2709 SANJAY PRASAD, in due execution of his duty.

THIRD COUNT

Statement of Offence (a)

DAMAGING PROPERTY: Contrary to Section 369 (1) of the Crimes Act 2009.

Particulars of Offence (b)

APIMELEKI TOLA, on the 2^nd day of October 2022, at Lautoka, in the Western Division, wilfully and unlawfully damaged Vehicle Registration Number GR 117, valued at $5,091.60, the property of the FIJI POLICE FORCE.

[4] On the same day, the Appellant was explained his right to Counsel. However, he had waived his right to Counsel and wanted to represent himself. Thereafter, the Appellant's plea was taken and he pleaded not guilty to the charges. Since the Police Prosecution had no objection to bail, the Appellant was granted bail the same day and the matter was fixed for mention on 13 February 2023 [Vide page 39 of the Magistrate's Court Record].

[5] However, on the 13 February 2023, the Appellant was not present in Court and a Bench Warrant had been issued. On the subsequent two Court dates, namely 12 May 2023 and 18 September 2023, the Appellant was again not present and the Bench Warrant was extended.

[6] On 21 September 2023, the Appellant had appeared in Court and the Bench Warrant had been cancelled. The Learned Resident Magistrate had warned the Appellant that if he is not present in Court in the future without any valid reason, the case will be fixed against him for Trial in Absentia. The matter was adjourned to 15 December 2023 for Mention to fix a date for Hearing.

[7] However, on 15 December 2023, the Appellant was again not present. As per the order made on the previous day, the Learned Resident Magistrate had fixed the matter for Trial in Absentia.

[8] After several adjournments, on 30 June 2025, the Trial in Absentia was held before another Learned Resident Magistrate (since the previous Learned Resident Magistrate had left the jurisdiction and was no longer in service). During the Trial in Absentia, the Prosecution had called two witnesses, namely Police Constable 5891 Zoheb Alfaaz Ali and Corporal 2709 Sanjay Prasad. The Prosecution had then closed its case.

[9] At the end of the case for the Prosecution, the Learned Resident Magistrate held that there was a case for the Appellant to answer and called for his defence. However, since the Appellant was not present in Court the Learned Resident Magistrate has recorded that the Appellant was exercising his right to remain silent. The matter had then been adjourned for Judgment.

[10] On 22 September 2025, the Judgment was pronounced in absentia. The Appellant was found guilty and convicted of the three charges against him Vide pages 10–15 of the Magistrate's Court Record for copy of the Judgment].

[11] On 29 September 2025, the Sentence was pronounced in absentia. The Appellant had been imposed an aggregate sentence of 9 months imprisonment, to be served as soon as he was apprehended. A Stop-Departure Order had also been issued against the Appellant and the Director Immigration notified of same [Vide pages 6–9 of the Magistrate's Court Record for copy of the Sentence].

[12] Aggrieved by this decision, on 9 October 2025, the Appellant filed a Notice of Appeal against his Conviction in the High Court. The Appeal has been filed within the prescribed time of 28 days from the date of Sentence.

[13] On 27 October 2025, Amended Grounds of Appeal against Conviction were filed. However, on 25 November 2025, the Counsel for the Appellant was granted leave to file a Further Amended Grounds of Appeal against Conviction. On 4 December 2025, the said Further Amended Grounds of Appeal were filed.

[14] This matter was taken up for hearing before me on 11 December 2025. The Learned Counsel for the Appellant and the Deputy Director of Public Prosecutions for the Respondent were heard. Both parties filed written submissions, and referred to case authorities, which I have had the benefit of perusing.

[15] As per the Further Amended Grounds of Appeal filed by the Appellant the Grounds of Appeal against Conviction are as follows:

FURTHER AMENDED GROUNDS OF APPEAL AGAINST CONVICTION

• (1) That the First Learned Resident Magistrate erred in law when he failed to warn himself on the principles regarding trial in absentia and thereby breached Section 14(2) (h) (i) of the Constitution whereby the requirements of the same were not satisfied, whereas the Honourable Court had failed to ascertain beyond reasonable doubt that the Appellant was aware of the date of the trial but had voluntarily chosen not to attend.

• (2) That the Second Learned Resident Magistrate erred in law when she adopted and endorsed the First Resident Magistrate's order, dated 15 December 2023, to proceed with the trial in absentia when as the Second Learned Resident Magistrate she is constitutionally charged to ensure that the Appellant's rights pursuant to Section 15(1) of the Constitution are properly discharged.

• (3) That the Second Learned Resident Magistrate erred in law and in fact when she failed to satisfy the second limb of Section 14(2)(h)(i) of the Constitution even though a Bench Warrant report was tendered by the Prosecution showing only a check with Correction Centres nation-wide and an unsatisfactory effort at attempts to locating the Appellant elsewhere proving that she did not satisfy herself of the Prosecution adequately exhausting their avenues as to the possible location of the Appellant who was just travelling to and from his home at Imthurn Place, Domain to work on a daily basis in full view of the public and was never in hiding.

• (4) That the First Learned Resident Magistrate erred in law and in fact when the additional condition following cancellation of his bench warrant on 21 September 2023, that “if he (Appellant) is not present in Court thereafter without any valid reason this case will be fixed for trial in absentia” was ignored when the Honourable Court fixed the matter for trial in absentia in his absence on 15 December 2023, without first and foremost having him produced in the Honourable Court by way of a bench warrant or otherwise and first assessing whether the reason for his absence was valid or not before proceeding further.

• (5) That the Second Learned Resident Magistrate erred in law and in fact when no proper foundation was laid as to the proper identification of the Appellant throughout the trial in absentia in particular as to the maker of the identification document.

THE LAW

[16] Section 246 of the Criminal Procedure Act No. 43 of 2009 (Criminal Procedure Act) deals with Appeals to the High Court (from the Magistrate's Courts). The Section is reproduced below:

“(1) Subject to any provision of this Part to the contrary, any person who is dissatisfied with any judgment, sentence or order of a Magistrates Court in any criminal cause or trial to which he or she is a party may appeal to the High Court against the judgment, sentence or order of the Magistrates Court, or both a judgement and sentence.

(2) No appeal shall lie against an order of acquittal except by, or with the sanction in writing of the Director of Public Prosecutions or of the Commissioner of the Independent Commission Against Corruption.

(3) Where any sentence is passed or...