Seru v State [1999] FJCA 37; Aau0041d.99 (3 August 1999)

Fiji Islands - Apaitia Seru v The State - Pacific Law Materials

IN THE COURT OF APPEAL, FIJI

AT SUVA

CRIMINAL APPEAL NO. AAU0041 OF 1999 AND
CRIMINAL APPEAL NO. AAU0042 OF 1999
(Suva High Court Criminal Case No. HAC004 of 1997)

BE:

:

APAITIA SERU
1st Appellant/Applicant

ANTHONY FREDERICK STEPHENS
2nd Appellant/Applicant

AND:

THE STATE
Re/b>Respondent

Dr Ajit S& Mr T.Mr T.V.Q. Bukarau for the 1st Appellant/Applicant
Mr. Kitione Vuataki for the 2nd Appellant/Applicant
Mr Kenneth D. Wilkinson (Acting D.P.P.) for the Respondent

Date aace of Hearing: 28 July 199y 1999, Suva
Date of Decision: 3 August 1999

IN CHAMBERS

DECISION
(Whether a single judge has power to make a stay order
pending appeal in a criminal case)

In this Decision Apaitia Seru is referred to as the 1st Applicant because he lodged his application first in Criminal Appeal No. AAU0041 of 1999. Anthony Stephens is referred to as the 2nd Applicant because he lodged his application next (though on the same day) in Criminal Appeal No. AAU0042 of 1999.

All parties concerned consented to a joint hearing and a joint decision on the applications before me.

Both Applicants are accused persons before the High Court in Criminal Case No. HAC004 of 1997. The 2nd Applicant is charged with an Attempt to Obtain Credit by Fraud (1st Count). The 1st Applicant is charged with Aiding and Abetting the 2nd Applicant with Obtaining Credit by Fraud (2nd Count). The amount alleged to be involved is $980,000.

The decision that both Applicants wish to appeal against is that of Surman J. delivered on 17 July 1999.

On 14 July 1999 before the trial proper commenced both Applicants applied to Surman J. the trial judge for a permanent stay of the charges on the ground of infringement of Section 29(1) and 29(3) of the 1997 Constitution which required a fair trial within a reasonable time.

Section 29(1) and (3) read as follows:-

"Access to courts or tribunals

29. (1) Every person charged with an offence has the right to a fair trial before a court of law.

(2)------

(3) Every person charged with an offence and every party to a civil dispute has the right to have the case determined within a reasonable time."

Surman J. refused this application. His reasons are contained in his ruling dated 17 July 1999.

The 1st Applicant lodged his application in this Court on 19/7/99. He seeks leave to appeal (if leave is necessary) and also asks for a stay order pending hearing of the appeal. The proposed grounds of appeal have been provided. The 2nd Applicant lodged his appeal on 19/7/99 contending that he has a right of appeal under Section 121(2) of the 1997 Constitution. He therefore seeks a stay order only pending hearing of his appeal. Mr Vuataki Counsel for the 2nd Applicant agrees that he cannot appeal against a prior concluded criminal case against his client without leave because it is out of time.

The Respondent is opposing this application. It contends that the decision sought to be appealed is not a "final judgment". It argues that if its contention is upheld then there is no provision in law for appealing against an interlocutory decision in a criminal trial either under the Constitution or under Section 21 of the Court of Appeal Act (as amended by the Court of Appeal Act (Amendment) Decree 1990).

Both Applicants concede that there is no provision under Section 35 of the Court of Appeal Act (as amended by Act No. 13 of 1998) giving a single judge power to make a stay order. The powers of a single judge under S.35 are as follows:-

"Powers of a single judge of appeal

35. (1) A judge of the Court may exercise the following powers of the Court

(a) to give leave to appeal to the Court;

(b) to extend the time within which notice of appeal or of an application for leave to appeal may be given;

(c) to allow the appellant to be present at any proceedings in cases where he or she is not entitled to be present without leave;

(d) to admit an appellant to bail;

(e) to cancel an appellant's bail on good cause being shown;

(f) to recommend that legal aid be granted to an appellant.

(2) If on the filing of a notice of appeal or of an application for leave to appeal, a judge of the Court determines that the appeal is vexatious or frivolous or is bound to fail because there is no right of appeal or no right to seek leave to appeal, the judge may dismiss the appeal.

(3) If the judge refuses an application on the part of the appellant to exercise a power under subsection (1) in the appellant's favour, the appellant may have the application determined by the Court as duly constituted for the hearing and determining of appeals under this Act.

(4) The decision of a single judge to cancel bail under subsection (1)(e) may at the appellant's request be reviewed by the Court as duly constituted for the hearing and determining of appeals under this Act.

(5) A reserved judgment of the Court may be delivered by a single judge of the Court if any or all judges who heard the appeal are absent.."

The Applicants therefore contend that their appeal should be treated as a civil appeal under Section 12(1) of the Court of Appeal Act since assertion of their right to a fair hearing within a reasonable time made to the trial judge under Section 29(1) and (3) of the Constitution was civil in nature. Since their clients' application for a permanent stay was refused they have an appeal as of right under Section 121(2) of the Constitution the whole of which Section reads as follows:-

"Jurisdiction of Court of Appeal

121. (1) The Court of Appeal has jurisdiction, subject to this Constitution and to such requirements as the Parliament prescribes, to hear and determine appeals from all judgments of the High Court, and has such other jurisdiction as is conferred by law.

(2) Appeals lie to the Court of Appeal as of right from a final judgment of the High Court in any matter arising under this Constitution or involving its interpretation.

(3) The Parliament may provide that appeals lie to the Court of Appeal, as of right or with leave, from other judgments of the High Court in accordance with such requirements as the Parliament prescribes."

Counsel for both Applicants argue that the relevant provisions of Sections 12 to 20 of the Court of Appeal Act which come under Part III of the Act dealing with "Appeals in Civil Cases" should be invoked. Part IV governs the way that criminal appeals come before the Court. As regards the stay application they say a single judge's power "to stay any execution or make an interim order to prevent prejudice to the claims of any party pending appeal" as provided for by Section 20(1)(e) of the Court of Appeal Act (as amended by Act No. 13 of 1998) is applicable to their case. An alternative submission of the Applicants is that if the civil provisions are not applicable then a single judge should invoke the Court's inherent jurisdiction. In this regard they refer to Section 119 of the 1997 Constitution which reads as follows:-

"Jurisdiction of courts of State

119. Each of the High Court, the Court of Appeal and the Supreme Court has the jurisdiction, including the inherent jurisdiction, conferred on it (or, in the case of the Court of Appeal, conferred on the Fiji Court of Appeal) immediately before the commencement of this Constitution and any further jurisdiction conferred on it by this Constitution or by any written law."

Objection to jurisdiction

Counsel for the Respondent has raised two objections to jurisdiction.

The first is that there is no appeal as of right because Surman J.'s refusal to grant a permanent stay is not a "final judgment of the High Court" as envisaged by Section 121(2) of the Constitution. He contends it is an interlocutory decision made in a criminal trial which has not yet run its full course. He submits that therefore there is and can be no appeal pending. In the circumstances he contends that the Applicants can only appeal after conviction under Section 21(1) of the Court of Appeal Act (as amended by the Court of Appeal Act (Amendment) Decree 1990). Section 21(1) of the Act provides as follows:-

"Right of appeal in criminal cases

21. (1) A person convicted on a trial held before the High Court may appeal under this Part to the Court of Appeal-

(a) against his conviction on any ground of appeal which involves a question of law alone;

(b) with the leave of the Court of Appeal or upon the certificate of the judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact or any other ground which appears to the Court to be a sufficient ground of appeal; and

(c) with the leave of the Court of Appeal against the sentence passed on his conviction unless the sentence is one fixed by law."

The Court of Appeal is a creature of statutes. It derives its power and jurisdiction from the Constitution and the Court of Appeal Act Cap. 12. (See Section 3 of the Court of Appeal Act as amended by Section 4 of Act No. 13 of 1998.)

The practice and procedure of the Court are governed by the Court of Appeal Rules made by the President under Section 39 of the Act. I therefore agree with the Respondent's Counsel that the precondition for commencing any appeal under the Court of Appeal Act in a criminal case is a "conviction". But must this not be read subject to the provisions of Section 121(2) of the 1997 Constitution?

Ruling as to power to stay under S.35 of the Court of Appeal Act

I have no hesitation in ruling that a single judge has no power under Section 35 of the Court of Appeal Act to stay a criminal trial or proceedings pending appeal. The Court of Appeal Act has been amended twice in 1998 first by Act No. 13 of 1998 and then by Act No. 39 of 1998. It is significant to note that Section 35 itself was revised and enlarged by Act No. 13 of 1998 but no power was given to a single judge to grant a stay.

Whether application can be treated as a civil matter

On the basis of decided cases I am unable to agree with Counsel for the Applicants that I have the power to invoke Section 20(1)(e) of the Act (as amended) to grant a stay. The trial that the Applicants want me to stay albeit temporarily is a criminal trial. The application for a permanent stay was made in that criminal trial. The ruling that the Applicants wish to challenge is a ruling made in that criminal trial which is currently proceeding.

In Himmat Lodhia & Others v Suva Magistrate's Court - Civil Appeal No. 45 of 1982 (included in the 1982 bound volume of the Fiji Court of Appeal Judgments, page 226) the Court of Appeal dealt with a submission that prerogative writs are always a civil matter originating in the Supreme Court (now High Court). Rejecting the argument the Court held that an application for certiorari or whatever prerogative order is sought "takes its character from the proceedings in respect of which it is brought". It held that this is clearly stated in the House of Lords by Lord Sumner in Clifford and O'Sullivan [1921] 2 A.C. 570 at pages 586-7:

"An application for a writ of prohibition is in itself no more and no less criminal than it is the contrary. This quality of the matter of an application for that writ must be decided according to the subject matter dealt with on the application. The same is true of certiorari (Reg. v. Fletcher [1876] UKLawRpKQB 99; 2 Q.B.D. 43) and of habeas corpus (Ex. parte Woodhall [1888] UKLawRpKQB 89; 20 Q.B.D. 832). Nor is there anything peculiar about prohibition for this purpose. Prima facie a writ of prohibition is one to be directed to an inferior Court, its members and officers; habeas corpus on the other hand is not specially concerned with the jurisdiction or officers of an inferior Court, and therefore in habeas corpus no such question determines the issue of criminal or not criminal for the purpose of an appeal. I think the real test is the character of the proceedings themselves which are the subject matter of the particular application, whatever it be, that constitutes the cause or matter referred to."

In Fred Wehrenberg & Another v State Criminal Appeal No. 16 of 1995 the Court of Appeal looked at the nature of proceedings where a similar claim was made because the remedy sought in the High Court was a writ of mandamus directed to the Police in respect of criminal cases before the Magistrate's Court. The High Court's Order dismissing the application was held to be in criminal proceedings.

In Rutter v State Criminal Appeal No. 1 of 1992 an action for redress to right of personal liberty brought under the Extradition Act Cap. 23, the Court of Appeal held that it was brought in criminal proceedings.

Criminal law and the criminal justice system abound with civil rights provisions to ensure a fair trial. Any allegation of infringement of those rights cannot change the character of the proceedings.

I therefore hold Part III of the Court of Appeal Act in particular Section 20(1)(e) thereof cannot be invoked to grant a stay order. The words "not being a criminal proceeding" in Section 12(1) are significant.

Whether stay can be granted under inherent jurisdiction

In my view any inherent jurisdiction that this Court might possess under S.119 of the Constitution (already quoted) cannot be invoked to counter any statutory intention displayed by Parliament. In this case I have no doubts that Parliament purposely did not give a single judge power to stop a criminal trial pending appeal. In short it is not a case of any lacuna brought about by oversight.

I have been urged to take a bold and robust line as some Superior Courts in the Commonwealth (particularly final Courts) have done from time to time in the interest of an individual's civil rights. Whilst this sentiment is laudable I must bear in mind that the limited statutory powers of a single judge of the Court of Appeal bear no comparison to the virtual unlimited constitutional powers of the final Courts. In Fiji for instance the Supreme Court which is the Court of the last resort has power to make any orders it considers necessary for the administration of justice. What is more such orders cannot be challenged by anyone - see Section 122 of the 1997 Constitution. Furthermore in general an individual's rights have to be balanced against public interest. In any case this does not appear to me to be a case where any future appeal will be rendered nugatory unless the trial is halted now. I therefore hold that I have no power to grant a stay in this case under any inherent jurisdiction I might possess.

Conclusion

In view of the reasons given I hold that a single judge of the Court of Appeal has no power to make a stay order stopping a criminal trial pending appeal whether the appeal (or proposed appeal) is from a final judgment or an interlocutory decision. In the circumstances it is not necessary for me to rule whether Surman J.'s Order dated 19 July 1997 made in Criminal Case No. HAC004 of 1997 constitutes a final judgment or not. However I appreciate that the Applicants' right to appeal under S.121(2) of the Constitution depends on whether the Order in question is a final judgment or not.

I therefore propose to administratively direct the Court of Appeal Registry to process the 2nd Applicant's Notice of Appeal in the ordinary way so that this important question as to what constitutes a "final judgment" in a criminal case may be definitively decided by the Court of Appeal in due course. The problem of determining whether a judgment, decision or order is final or not has bedevilled the Courts for decades. For civil cases the Court of Appeal has already adopted the English approach known as the "application approach" to decide whether a decision is final or interlocutory (see (i) Suresh Charan v Syed M. Shah & Ors. [1995] 41 FLR 65, and (ii) White v Brunton (1984) 1 Q.B. 570.

Similarly the 1st Applicant will also be at liberty if he so wishes, to file his Notice and Grounds of Appeal in accordance with the Act and the Rules. In both cases the Respondent (the State) will of course be at liberty to file and serve preliminary objections on jurisdictional grounds.

Order

Application by both Applicants for a stay order pending appeal dismissed on the ground that a single judge has no power to make such an order.

Sir Moti Tikaram
President, Court of Appeal, Fiji

3 August 1999.

Aau0041d.99