Tukana v State [2014] FJCA 33; AAU0060.2011 (14 March 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO: AAU0060 OF 2011
(Lautoka High Court HAC21 of 2009)

BETWEEN:

LUKE DIVEVI TUKANA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. T. Bukarau for the Appellant
Mr. M. Korovou for the Respondent

Date of Hearing : 3 March 2014
Date of Ruling : 14 March 2014

RULING

[1] The appellant was convicted of murder after a trial in the High Court at Lautoka. He was sentenced to life imprisonment with a minimum of 11 years to serve.

[2] This is an application for leave to appeal against both conviction and sentence pursuant to section 21(1) of the Court of Appeal Act. The test for leave is whether the grounds of appeal are arguable before the Full Court.

[3] The application for leave is out of time. The appellant was sentenced to life imprisonment on 4 May 2011. On 3 June 2011, the appellant filed his Notice of Appeal. The Notice was filed within the 30-day appeal period. In the afternoon of 10 June 2011 (Friday), when the appellant tried to file the certificate of service at the Court of Appeal Registry, he was advised to pay the filing fee first at the High Court Registry. By the time the appellant arrived at the High Court Registry, that Registry was closed for the day. The following Monday was a public holiday and the courts were closed.

[4] On 15 June 2011 (Wednesday), the appellant after paying his filing fee, filed the certificate of service at the Court of Appeal Registry. But by 15 June 2011, the Registrar of the Court of Appeal had marked the appeal as abandoned under Rule 44(13) of the Court of Appeal Rules.

[5] Rule 44(13) 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."

[6] Rule 43 provides:

"(1) The appellant must –

(a) upon filing the notice of appeal or application for leave to appeal pay the filing fee prescribed in Part II of the First Schedule; and

(b) within 7 days after service of the notice of appeal or application for leave to appeal, file a copy endorsed with a certificate of the date the notice was served.

(2) An appellant in person or who is receiving legal aid is exempted from the fee payable under sub-rule (1)(a)."

[7] The Notice of Appeal was served on the respondent on 3 June 2011. Rule 43 required that the appellant pay the filing fee and file the certificate of service within 7 days from 3 June 2011. The filing fee was paid on 15 Jun 2011, by which time the 7-day time limit prescribed by Rule 43 had expired. In these circumstances, the appeal was deemed to have been abandoned under Rule 44(13).

[8] Under Rule 44(13), an appeal that had been abandoned can be resurrected by filing a fresh Notice of Appeal within 3 months from the date of abandonment. The appeal was abandoned on 10 June 2011. The appellant resurrected his appeal by filing a fresh Notice of Appeal on 12 October 2012. Between 10 June 2011 and 12 October 2012, numerous correspondences were exchanged between the Registrar of the Court of Appeal and counsel for the appellant. The correspondences related to the Rules and the reasons the initial appeal was abandoned by the Registrar. It appears that counsel for the appellant was not familiar with the Court of Appeal Rules and the Registrar had to explain the rules to counsel in his correspondences.

[9] In the present case, the 3-month resurrection period for the appeal expired on 10 September 2011. So when the second Notice of Appeal was filed on 12 October 2012, the appeal was out of time by 1 year and 1 month. The length of delay is substantial and the appellant offered the above chronology to explain it. The delay was regretfully caused because counsel for the appellant was not familiar with the Court of Appeal Rules.

[10] I now consider whether the grounds of appeal advanced by the appellant are arguable before the Full Court.

[11] The error alleged in the first ground is that the appellant had no intention to kill the deceased. The appellant apparently said in his caution interview that he did not mean to kill the deceased (Q217). But the appellant also admitted that he knew that punches and kicks would cause death (Q218). The appellant further relies on the police statement of one Manasa Toga who saw the appellant crying after assaulting the deceased.

[12] The prosecution case was not based on an intention to kill but on the recklessness element of malice aforethought as provided by section 202 (b) of the Penal Code. The learned trial judge explained the requisite mental element of recklessness at paragraph 16 of the Summing Up as follows:

"The question of recklessness in this situation is very relevant. If the prosecution has proved to you that when the accused threw the punches, he knew at the time that death or serious injury would be caused to Nelson, but nevertheless and recklessly carried on punching and kicking anyway, then he would be guilty of murder."

[13] No arguable error is shown in the manner in which the trial judge dealt with the mental element of recklessness that the prosecution was required to satisfy beyond reasonable doubt before the appellant could be found guilty of murder.

[14] The second ground complains that the trial judge erred in not summoning one Anasa Kubu as a witness. Counsel for the appellant submits that Anasa Kubu's name appears in the witnesses' police statements as someone who had also assaulted the deceased. Anasa Kubu was neither interviewed under caution nor asked to give a plain police statement. As far as the prosecution was concerned, Anasa Kubu was neither a suspect nor a witness. In these circumstances, neither the prosecution nor the trial judge had any legal obligation to summon Anasa Kubu as a witness. If the defence thought Anasa Kubu could have given relevant evidence for the defence, then they could have summoned him as a defence witness. The defence elected not to do so, and therefore, no arguable complaint can be taken on appeal.

[15] Ground 3 relates to the same alleged error that has been dealt in ground 1.

[16] Ground 4 states that the learned trial judge failed to give a written Summing Up. At the hearing, when counsel for the appellant was given a copy of the Summing Up, he elected not to pursue this ground any further.

[17] Ground 5 states that the appellant should not have been convicted of murder but of manslaughter on the evidence led by the prosecution. The prosecution led evidence that the appellant punched and kicked the deceased until he was unconscious. Post Mortem examination revealed that the deceased died of bleeding around the outside brain tissue and swelling of the brain. The doctor gave evidence that this could be brought about by blunt force trauma such as punches and could not be caused by a normal fall.

[18] In any event, the trial judge fairly directed the assessors on manslaughter at paragraph 17 of his Summing Up. The assessors did not accept that the appellant was guilty of the lesser offence of manslaughter. Rather they felt sure that the appellant was guilty of murder. This finding was open to them on the evidence led by the prosecution. No arguable issue arises from the manner in which the trial judge dealt with the defence of manslaughter advanced by the appellant at the trial.

[19] The final ground relates to the sentence. The appellant contends that the trial judge failed to take into account his remand period of 2 years and 3 months in sentence. The appellant was arrested on 28 February 2009. He was granted bail on 11 March 2009 and he remained on bail until he was sentenced to life imprisonment on 4 May 2011. This ground is not arguable.

Result

[20] Application for an extension of time to appeal is refused.

[21] Leave to appeal against conviction and sentence is refused on all the grounds.

....................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL