Fiji Independent Commission Against Corruption v Tuisolia [2011] FJCA 49; Criminal Miscellaneous Action 29 of 2011 (29 September 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

CRIMINAL MISCELLANEOUS ACTION NO: 29 OF 2011
[High Court Criminal Case No. HAC 127 of 2008]

BETWEEN:

FIJI INDEPENDANT COMMISSION AGAINST CORRUPTION ("FICAC").
Appellant

AND:

SAKIUSA TUISOLIA
Respondent

CORAM: Hon. Justice William Marshall, Justice of Appeal
Hon. Justice Kankani Chitrasiri, Justice of Appeal
Hon. Justice Sriskandarajah, Justice of Appeal

COUNSEL: Mr.V. Perera and Ms. E.Leweni for the Appellant
Respondent absent and unrepresented, (Notice was not served as he had gone abroad)

Date of Hearing: Monday, 12 September 2011
Date of Ruling: Thursday, 29 September 2011

RULING

William Marshall, JA

1. I agree with the ruling which Sriskandarajah JA proposes in respect of the reasons he gives for dismissing this application and the order he proposes.
   
2. What is not addressed is whether Rule 44(14) was ever intended by the legislature to apply to proposed prosecution appeals.
   
3. Rule 44(14) derives from the Criminal Appeal Rules made under the rule making power of the Criminal Appeal Act 1907. It related to convicted defendants for at the time it was enacted there was no general right of appeal on the part of the prosecution. All the cases cited by my brother Sriskandarajah JA relate to appellants who are convicted defendants.
   
4. Section 21(2) of the Court of Appeal Act Cap 12 in Fiji was added sometime after 1988 and for the first time granted the State a right to appeal from acquittal in the High Court.
   
5. It is not necessary to decide the point in this application. It fails for other reasons. I would however reserve the issue for further consideration and decision should another application by the State be made under Rule 44(14). If the State attends to its appeal rights promptly and correctly another application of this kind may never arise.
   

Kankani Chitrasiri, JA

6. I agree with the ruling and reasons proposed by Sriskandarajah JA and with the order which he proposes.
   

Sriskandarajah, JA

7. The Respondent was charged with three counts of fraudulent conversion and three counts of fraudulent falsification of account in the High Court of Fiji at Suva. After the trial the assessors returned with a unanimous verdict of not guilty for all the charges, the learned High Court Judge endorsed the assessors' verdict and acquitted the Respondent.
   
8. The Appellant filed Notice of Appeal against the said judgement on the 29th of November 2010 within the specified time and it was served on the Respondent on the same day.
   
9. By letter dated 30th May 2011 the Registry of the Court of Appeal informed the Appellant that the appeal is marked deemed abandoned on 7th December 2010 for non-compliance of Rule 43(1)(a)(b) of the Court of Appeal Rules. On 18th of July 2011 the Appellant informed the Registry of the Court of Appeal the Appellant's intention to reinstate the appeal and filed papers on 19th of July 2011.The Registry informed the Appellant that if the Appellant wishes to pursue filing any fresh appeal an application for special leave to appeal should be filed in terms of Rule 44(13).
   
10. This Application for Special Leave to Appeal was filed on 27th July 2011. Rule 26(2) under the caption "Applications to Court of Appeal" provides:
    

"Any application to the Court of Appeal for leave to appeal (whether made before or after the expiration of the time for appealing) shall be made on notice to the party or parties affected."

This mandatory provision of the Rule was not followed by the Appellant. The Appellant through an affidavit of Simione Cagilaba the commission officer of the Appellant office had given reasons for the non service of notice of the application for special leave to appeal out of time.

11. According to the said officer's affidavit the Respondent had departed for Philippines on 9th December 2010 and has not returned. The notice of application for special leave to appeal out of time was not served due to the unavailability of the Respondent. The appeal of the Appellant deemed to have been abandoned on 7th December 2010 but the Appellant has filed proper papers in the Court of Appeal and sought special leave to appeal only on 27th July 2011. The failure to give notice of special leave to appeal to the Respondent will cause prejudice to him as the outcome of the appeal may affect his freedom.
    
12. In this Application the Appellant attributed the delay to an officer who was in charge of the case ceased to be an employee of the Appellant in the first week of July and the Appellant came to know that the appeal deemed have abandoned only on the second week of July. The Appellant contention was that there was no intention by the Appellant to abandon the appeal and the non compliance of rule 43(1)(b) was not a deliberate act.
    
13. Abandonment of an appeal is provided in Rule 44(13) of the Rules of Court of Appeal. It provides:
    

"If Rule 43 or this Rule (except the provisions relating to preparation of the record by the Registrar) is not complied with, the notice of appeal or application for leave to appeal is deemed to be abandoned, but a fresh notice of appeal or application for leave to appeal may be filed before the expiration of 3 months from the date the notice of appeal or application for leave to appeal is deemed to be abandoned."

14. The Appellant had failed to file a leave to appeal application within the three months as provided under above Rule. But by this application the Appellant has sought special leave of the Court of Appeal to file a leave to appeal application under sub-rule 14. It provides:
    

"44(14) Except with the special leave of the Court of Appeal, no appeal or application for leave to appeal may be filed after the time specified in sub-rule (13)."

15. The time limits for appeal are provided either in Statutes or in Rules in the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interests of the individual applicant in having the conviction reviewed. Also relevant is "the respect which is traditionally shown for the liberty of the subject" (R v. Hawkins [1997] 1 Cr App R 234,238).
    
16. In granting special leave to file leave to appeal applications the applicant for leave must show special circumstances - circumstances that are particular to the case and which lead to the conclusion that justice requires that leave be given; R v. Mitchell [1977] 2 All ER 168 at p 171.
    
17. In Alofa v. Dept of Labour [1980] 1 NZLR 139, 146 (CA), Cooke J observed that the expression "the very rare case" might be unduly restrictive if applied literally, but went on immediately to emphasize that "at least special circumstances must be shown to justify a departure from the principle of the finality of the results of Court proceedings". He added that to attempt an exhaustive definition of special circumstances would be undesirable.
    
18. In R v. Knight 1995 15 CRNZ 332 at 338 the Court of Appeal of New Zealand laid down certain criteria to grant leave to appeal out of time to justify a departure from the principle of finality. Richardson P for the Court said:
    

"The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice that is floodgates considerations, and the absence of prejudice to the Crown."

19. It is a requirement to show some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought. The charges in the present case are in relation to corruption and that has a serious impact in the society, but what we have to consider is the strength of the proposed appeal. In State v. Ramesh Patel [2002]FJCA 14;AAU 002.2002 (15 November 2002); the principal ground of appeal advanced is that the judge had no jurisdiction under subs 158(1) of the Criminal Procedure Code (Chp21) to make an order for cost. Counsel for the Respondent accepted that this is so. He submitted that the court had an inherent jurisdiction to make an order for costs on an interlocutory application such as the present.
    
20. The Court held:
    

"We examine subs 158(1) and the inherent jurisdiction submission later in this judgement. For the present purpose it is sufficient to say that, for reasons we there set out, we consider that there are strong if not convincing grounds that can be adverted in support of the appeal".

The other reasons given by the court are that the granting of leave and the determination of appeal is unlikely to have any impact on others. It may aid in the administration of justice by determining an issue on which there has been some judicial uncertainty and there is no prejudice caused to the Respondent.

21. In State v. Ramesh Patel (supra) The Court concluded that despite the excessive and unexplained delay, the strength of the grounds of appeal and the absence of prejudice are such that it is in the interest of justice that leave be granted to the applicant. The above grounds that should be considered in granting Special Leave to Appeal was followed in case of Ilaisa Sousou v. State [2010] FJCA 24: AAU 0027 of 2008 (11 June 2010).
    
22. I will now consider the grounds of appeal that are advanced in support of the appeal relevant to this application. There are eleven (11) grounds of appeal but they could be summarised into three categories. Firstly: Admissibility of photocopy of the documents submitted and even if they are rejected the original documents submitted are sufficient to find the Accused guilty of charges 1,2 and 3. Secondly: The legal effect of the immunity from prosecution to the two prosecution witnesses Sanjana Mishra and Rohit Prasad. Thirdly: The Learned Judge has not properly directed the assessors the definition of what intention to defraud meant.
    
23. On the question of admissibility of the photocopy evidence of Bank documents the Learned Judge has given the following direction:
    

"There are some other issues to be considered even though it was not raised for a ruling. I consider it is worth to mentioning to you. Some of the original documents were missing at FICAC. The explanation given by the FICAC officials are that these documents were kept in the open area and this case is one of earlier cases where the FICAC was commenced its work so they didn't have a proper register. It is not an acceptable thing but considering the explanation you may excuse.

Considering the photocopies it was submitted to court that the FICAC, even before obtaining the originals had obtained copies via facsimile (fax). Those copies are available and produced in court.

When the FICAC obtained the originals from Ms. Sanjana Mishra of Airport Fiji Limited she was permitted to take photocopies of the original. She gave evidence in court and submitted that she personally took photocopies of the original and identified those copies in the open court.

Even though the originals were missing there are two sets of independent copies available to court for consideration. There are no contradictions marked between any of these copies."

24. The above summing up shows that the Learned Judge has carefully considered the use of the photocopy documents and have directed in favour of the prosecution. Therefore the prosecution cannot complain on the direction of the photocopy documents.
    
25. The other ground of appeal is on the legal effect of the immunity from prosecution given to two prosecution witnesses Sanjana Mishra and Rohit Prasad was not properly explained to the assessors. The contention of the Appellant is that the Learned Judge failed to direct as a question of fact that they had to decide whether the said two witnesses are accomplices and if so it was unsafe to convict on their evidence without corroboration. The learned counsel for the Appellant supported his contention with the assistance of the judgement in Davies v. Director of Public Prosecution [1954] 1 All E.R 507.
    
26. In Davies v. Director of Public Prosecution (supra) at page 513 Lord Simonds, LC observed:
    

"My Lords, having indicated the rival version of the rule as to warning propounded in Tate's case (R v Tate, [1908] 2 K.B.680) and Moore's case (R v Moore, (1942), 28 Cr.App.Rep.111) on the one hand, and the cases of Baskerville ( R v Baskerville, [1916] 2 K.B 658, Davies (R v Davies, (1930), 22 Cr.App.Rep.33) and Lewis (R v Lewis, [1937] 4 All E.R.360), on the other hand, I have formed the opinion that, whichever might be preferred if the matter were res integra, as things are the latter cases, laying down the stricter rule, have the preponderant weight of authority on their side, and should be adopted by your lordship on this appeal. The true rule has been, in my view, accurately formulated by the Appellant's Counsel in his first three propositions, more particularly in the third.

These propositions as amended read as follows:

"First proposition: In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated. Second proposition: This rule, although a rule of practice, now has the force of a rule of law. Third proposition: Where the judge fails to warn the jury in accordance with this rule, the conviction will be quashed, even if in fact there be ample corroboration of the evidence of the accomplice, unless the appellate court can apply the proviso to s.4 of the Criminal Appeal Act, 1907."

The rule, it will be observed, applies only to witnesses for the prosecution.

27. It is important to note that the above rule of caution is only for the prosecution witnesses. This rule safeguards an accused right to a fair trial. The rule emphasises that a conviction cannot be sustained if the judge failed to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated. In England this rule is now abrogated by law. Section 32 of the Criminal Justice and Public Order Act 1994 provides:
    

"32.(1)Any requirement whereby at a trial on indictment is obligatory for the court to give the jury a warning about convicting the Accused on the uncorroborated evidence of a person merely because that person is –

(a) An alleged accomplice of the Accused, or

(b) Where the offence charged is sexual offence, the person in respect of whom it is alleged to have been committed,

Is hereby abrogated."

In light of this legal provision the Chief Justice of England Lord Taylor in Regina v. Makanjuola (C.A) [1995]1 W.L.R 1348 held:

"that the general rule against the retrospective operation of statutes did not apply to procedural provisions, which would generally be presumed to apply to pending as well as future proceedings; that the change effected by section 32(1) was clearly procedural, so that the general rule respecting retrospectivity did not apply; and that, since the section had been in force before the trial of either applicant began, section 32(4) did not apply to exclude the application of Section 32(1) and the judge had not therefore been obliged to give a corroboration warning."

28. The above finding that a judge is not obliged to give a corroboration warning cannot be considered as a common law principle. Therefore in the absence of a similar legal provision in Fiji I do not think that the above judgement will have any bearing. It is important to note that the failure of a judge to give corroboration warning will only affect a conviction and not an acquittal. This warning is against the danger of acting upon uncorroborated evidence. These safe guards are laid down to protect an Accused from being convicted on the evidence of an accomplice, who was given state pardon or immunity from prosecution, without giving careful consideration of their credibility. In this case even without corroboration warning the assessors had found the accused not guilty to the charges. It shows that the assessors had not accepted the evidence of the prosecution witnesses sufficient to prove the charges against the accused, if a corroboration warning was given the prosecution case would have been worse than it was. The prosecution cannot argue that if a corroboration warning was given the assessors would have convicted the accused.
    
29. The Learned Judge in this case has given the following warning in his summing up in relation to the witnesses who were given immunity. He stated:
    

"Prosecution witnesses Sanjana Mishra and Rohit Prasad were given immunity by the prosecution in other words they were also treated as suspects in this case. Are they giving evidence on agenda? If so they would have got caught in the cross examination. Is there any situation, where these two witnesses contradict themselves or with each other. You have to decide. If they have contradicted they are not reliable witnesses or they are not telling the truth and favouring, if not, the observation can be different."

30. The Learned Judge in his summing up has cautioned the assessors on the credibility of these witnesses. I do not think that there is any direction that is unfair to the prosecution.
    
31. The Appellant had also contended that the Learned Judge had not properly directed the assessors on the definition of what intention to defraud meant. The Learned Judge in his summing up has directed the assessors with regard to intention to defraud as follows:
    

"The next important element is intention. The word intention is also known as mens rea, it means a person does certain things knowingly what he is doing. For an example, if you stab a person on his chest and neck several times, and he dies, we can presume that you intent to kill that person. If you stab, a person on his thigh and he dies your intention may not be for killing but for causing injury.

The next important element is defraud. In the Oxford Advanced Learner's Dictionary of current English (New 7th Edition,2005) "defraud" is taken to mean "to get money illegally from a person or organization by tricking them"; "fraudulent" is taken to mean "intended to cheat somebody, usually in order to make money illegally"; and "execute" in law, is taken to mean "to make a document legally valid", or "to perform a duty", or "to do a piece of work".

If I further explain the word "intend to defraud" means that you must act dishonestly to prejudice another person's right knowing you have no right to do so. There is no need to prove intent to cause economic or financial loss. However, when a person does prejudice another's right, it can also include prejudicing economic rights.

Considering the evidence before you, you have to decide whether the Accused had an intention to defraud. The prosecutor says that he did all entries to cover up his shady transactions. Therefore he had the intention to defraud. If not he should have directed the employees working under him to make entries in the correct folios to make it transparent. When these expenditures reflected under sundry expenditure a person who doesn't have the know-how of these accounting procedures, will simply can be misled. The million dollar question before us is why it is parked at sundry, office supplies when there is a specific provision available.

You have to decide whether these entries were done to cover up the extravagances expenditure of the CEO and management as claimed by the prosecution or just a procedural error claimed by the defence. Since it is factual matter I will leave it to you, without any of my comments and opinions."

32. I do not think that there is any inadequacy in the direction of the Learned Judge to assessors on the definition of what intention to defraud meant.
    
33. The grounds of appeal are based on the errors or omissions on the direction of the Learned Judge to the assessors but at the conclusion of the summing up the Learned Judge posed the following question:
    

"Now let me ask both counsels whether they have anything to be addressed to you. Prosecutor Mr. M.Tennakoon do you want anything to addressed to assessors?

Mr.Tennakoon: No I am happy.

Defence Counsel Mr. D. Sharma Do you want anything to address to assessors?

Mr. Sharma: No I am satisfied."

34. The counsel for the prosecution has not taken any objection at trial to the summing up. There is a general principle that it is the duty of the counsel to draw the trial judges attention to deficiencies in the summing up and the failure to do so may debar the party from taking up the point on appeal: Singleton v. French (1986) 5 NS WLR 425. However, where an appellate court is satisfied that, despite Counsel's failure to object to the summing up, an injustice may have occurred at the trial, it may quash the convictions: R v. Glover [1928] NSWStRp 36; (1928) 28 SR (NSW) 482,487, per Street CJ with whom Ferguson and Campbell JJ concurred.
    
35. In this case the prosecution has failed to establish that any injustice had occurred to the prosecution at the trial.
    
36. The appellant has failed to show any special circumstances that are identified in R v. Knight (supra) for the grant of Special Leave to Appeal in terms of Rule 44(13) of the Court of Appeal Rules. Accordingly, the application for special leave to appeal should be refused.
    

William Marshall, JA

ORDER OF THE COURT

37. The order of the Court in the ruling is:
    

(1) The application for special leave to appeal under Rule 44(14) applied for by the State (FICAC) be refused.

.................................................
Hon. Justice William Marshall
Justice of Appeal

.................................................
Hon. Justice Kankani Chitrasiri
Justice of Appeal

.................................................
Hon. Justice Sriskandarajah
Justice of Appeal