Qicatabua v State [2006] FJCA 88; AAU13.2006 (9 June 2006)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM A GENERAL COURT MARTIAL

CRIMINAL APPEAL No. AAU 13 of 2006

BETWEEN:

EMOSI QICATABUA
Appellant

AND

THE STATE
Respondent

Counsel:
Ms. B. Malimali for the Appellant
Mr. E. Tuinaosara for the Respondent
Ms. D. Herman for the Human Rights Commission
Mr. S. Sharma for the Attorney-General, as amicus curiae

DECISION

[1]. In May 2000 the Appellant took part in the Speight attempted coup d’etat. In November 2000 he also took some part in the attempted mutiny at the Queen Elizabeth Barracks.

[2]. Unfortunately, for reasons which are not clear, it has not proved possible to obtain a precise and complete account of the Appellant’s involvement in the earlier events. The record of the General Court Martial has yet to be supplied. It appears, however, that the Appellant was taken into military custody in about May 2000 and has remained in some form of custody ever since.

[3]. On 10 November 2004 the Appellant was sentenced to four and half years imprisonment for the offence of mutiny committed in May 2000. In August 2004 he was sentenced to three years nine months imprisonment for a similar offence committed in November 2000. In August 2005 this Court (Barbados Mills & Others v. The State AAU 35, 43, 46 and 48/2004) quashed the second conviction and ordered a retrial. The retrial took place in January 2006 and the Appellant was then sentenced to 12 months imprisonment to be served concurrently with the sentence which had been imposed upon him in November 2004.

[4]. On 30 January 2006 the Applicant filed the present application for leave to appeal out of time against the sentence imposed upon him in November 2004.

[5]. It is not in issue that the Republic of Fiji Military Forces Act (Cap. 81) does not make provision for an appeal against sentence imposed by a General Court Martial, however this Court in Mills recognized that there was an argument that Section 28 (1) (l) of the 1997 Constitution should be interpreted to confer such a right. In paragraphs 119 and 120 of the judgment the Court described the question as "important" and stated that it should "be given proper consideration in an appropriate case in the future".

[6]. All four counsel (including, importantly, counsel for the RFMF) were in general agreement that, given the provisions of Sections 28 and 43 (2) of the Constitution and noting such other international legal provisions as Article 14 – 5 of the International Covenant on Civil and Political Rights and Section 29 (g) of the New Zealand Bill of Rights, the omission to provide a defined method of appealing against sentences imposed by General Courts Martial was a major lacuna in the law of Fiji.

[7]. Ms. Malimali told me that approximately 135 soldiers had been sentenced by General Courts Martial since May 2000 and that a number of lengthy prison terms had been imposed. In the present Appellant’s case, which is by no means unique, the sentence which he is serving, when the period on remand is properly grossed up, totals not less than 13 years, a substantial sentence by any token.

[8]. The only real difference in the approach of Ms. Malimali on the one hand and Messrs. Tuinaosara and Sharma on the other (Ms. Herman, despite being asked to do so, did not file any written submissions but merely vaguely supported Ms. Malimali’s approach) was that both counsel for the Respondent and counsel assisting suggested that in the absence of any precise existing legal mechanism it was not at all clear that the Court of Appeal had any jurisdiction to interfere. Ms. Malimali, however, suggested that since a General Court Martial could be considered as equivalent in status to the High Court (see Section 194 (1)) of the Constitution – "subordinate court") the right of appeal against sentence should simply be exercised in the same way and subject to the same conditions and procedures as an appeal from a sentence imposed by the High Court.

[9]. Without wishing to apportion any degree of blame, I regard it as highly unfortunate that nothing effective has been done by the responsible Ministry to clarify and remedy the situation, involving as it does the liberty of the subject, since the problem first came to light in early 2004.

[10]. In all the circumstances I am satisfied that the Appellant should be given leave to appeal to the Full Court. The appeal will be set for hearing on 7 July 2006 at 2.15 p.m. Counsel should ensure that their written submissions are filed with the Court Registry by no later than midday 30 June 2006.

M.D. Scott
Resident Justice of Appeal

9 June 2006.