Cama v State [2015] FJCA 40; AAU110.2011 (11 March 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU110 of 2011
[High Court Case No. HAC 124 of 2007S]

BETWEEN:

TOMASI V CAMA
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. J. Savou for the Appellant
Mr. M. Korovou for the Respondent

Date of Hearing : 14 August 2014
Date of Ruling : 11 March 2015

RULING

[1] This is an application for an extension of time for leave to appeal against conviction. Following a trial, the appellant was convicted on one count each of murder and larceny. On 27 November 2009, he was sentenced to mandatory life imprisonment with a minimum term of 18 years to serve.

[2] On 3 November 2011, the appellant filed an untimely Notice of Appeal against conviction. The Notice was out of time by 23 months. The State opposes an extension of time saying the appeal lacks merit.

[3] The delay is significant. The reason advanced by the appellant for the delay is that he was unable to formulate his grounds of appeal from prison. While the court is sympathetic towards prisoners who appeal from prisons, the difficulties faced by them are not basis for ignoring the appellate procedures and rules (Josua Raitamata v State, unreported Cr. App. No. CAV002.2007; 25 February 2008). When the delay is significant, the appellant must show exceptional circumstances to justify an extension of time to appeal (Kumar v State, Sinu v State, unreported Cr. App. No. CAV0001 of 2009; 21 August 2012).

[4] In Kumar (supra) the Supreme Court laid down five factors that appellate courts should consider when determining an application for an extension of time to appeal at para [4]:

Appellate courts examine five factors by way of a principled approach to such applications. Those factors are:

(i) The reason for the failure to file within time.

(ii) The length of the delay.

(iii) Whether there is a ground of merit justifying the appellate court's consideration.

(iv) When there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?

(v) If time is enlarged, will the Respondent be unfairly prejudiced?

[5] In a later case of Rasaku v State, unreported Cr. App. No. CAV009 of 2009; 24 April 2014, the Supreme Court made the following observations at para [21]:

"These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargement of time. Ultimately, it is for the court to uphold its own rules, while always endeavoring to avoid or redress any grave injustice that might result from the strict application of the rules of court."

[6] When the delay is significant, the test for an extension of time is more stringent than the test that is applied when the delay is slight.

[7] The question for this Court is whether grave injustice will be caused if an extension of time is not granted. In Enele Cama v State unreported CAV0003 of 2009; 1 May 2012, the appeal was out of time by six years. The appellant's explanation for the delay was that he was unrepresented and ignorant of the law. At para [2], the Supreme Court said "delay of this length requires the applicant to show a compelling case that the criteria for leave are met, albeit, the touch stone is the interests of justice in the particular case".

[8] The appellant's grounds of appeal mainly raise misdirections on the facts. The grounds of appeal are:

"Ground 1	The learned trial Judge erred in fact when he misdirected the assessors at paragraph 18 of his summing which prejudiced the Petitioners defence when he stated that the petitioner had admitted stabbing the deceased 12 times when the petitioner only stated in evidence that he could only recall stabbing the deceased 4 times.
Ground 2	The learned trial Judge erred in fact when he failed to inform the assessors at paragraph 19 of his summing up that the petitioner only stabbed the deceased in order to be free from the grasp of the deceased; which had the effect of unfairly prejudicing the Petitioner's defence of self defence.
Ground 3	The learned trial Judge erred in law and fact when he shifted the burden of proving the element of an unlawful act to the defence at paragraph 27 of his summing up which unfairly prejudiced the Petitioner's defence.
Ground 4	The learned trial Judge erred in law and fact when he acted unfairly against the petitioner when he suggested at paragraph 28 and 29 of his summing up to the assessors that the first and second elements of murder had been proved beyond reasonable doubt.
Ground 5	The learned trial Judge erred in law and fact when he acted unfairly against the petitioner by suggesting at paragraph 33 and 34 of his summing up to the assessors that the deceased had acted out of proportion to the threat he faced.
Ground 6	The learned trial judge erred in law and fact when he failed to warn the assessors in his summing up that the replacement pathologist Doctor H.J.M. Perera was only expressing an opinion which the assessors were either entitled to accept or disregard."

[9] At trial, the appellant was represented by counsel. The appellant elected to give evidence. The learned trial judge summarized his evidence at paragraphs [18] – [20] as follows:

"18. The accused choose to give sworn evidence in his defence. He admitted hiring the deceased's van on 11th August 2007. He admitted that he got into a fight with the deceased, when he refused to take him to Dakunikoro, for $20. He admitted, he refused to give him his change. He admitted, he and the deceased scuffled in the van, wherein he stabbed the deceased 12 times. He doesn't seem to dispute that his stabs on the deceased, caused him to die. In other words, the accused did not dispute that, he stabbed the deceased to death. He however said that, at the time of the stabbing, he did not intend to kill the deceased. As a result of that, he is not guilty of murder.

19. Furthermore, the accused relied on the defence of self-defence. He said, the deceased was the one that pulled the knife on him, and wanted to stab him. He took the knife away from him, and stabbed him to save himself. In other words, he killed the deceased in self-defence. He is therefore not guilty of murder.

20. Alternatively, the accused said, he was provoked into killing the deceased. The deceased promised to take him to Dakunikoro in his van. He had already paid him $20 cash. They have only covered 1/3 of the trip, when the deceased refused to continue the journey. He then denied the accused his change. They had a fist fight. The deceased then tried to pull a knife on him, and stab him. He got the better of him. Such an insult was of a nature that would deprive an ordinary person of the power of self-control, and induce him to stab the deceased. He should therefore be found guilty, not of murder, but of manslaughter. That was the case for the defence."

[10] The appellant submits that the trial judge's direction at para [18] that the appellant stabbed the deceased twelve times was a misdirection. The appellant's contention is that he admitted stabbing the deceased four times and not twelve times as directed by the trial judge. The stabbing was not an issue. The issue was the number of times the appellant stabbed the deceased. The post mortem report revealed that the deceased had twelve stab wounds. The post mortem report was an agreed fact. In my judgment, there cannot be arguable issue taken on appeal when the appellant consented to the contents of the post mortem report at the trial despite his evidence that he stabbed the deceased only four times. Ground 1 is not arguable.

[11] At paragraph 19 of the summing up, the trial judge directed the assessors that the appellant stabbed the deceased in self-defence which was one of his defences. There is nothing prejudicial about this direction. Ground 2 is not arguable.

[12] At paragraph 27 of the summing up, the trial judge summarized the appellant's closing submissions. There is nothing to suggest that the trial judge reversed the onus on the appellant to prove the unlawful act. The unlawful act (stabbing) was not an issue at the trial. Ground 3 is not arguable.

[13] At paragraphs 28 and 29 of the summing up, the trial judge correctly pointed out to the assessors that the unlawful act (stabbing) and the cause of death were proved beyond reasonable doubt. At trial, the appellant admitted stabbing the deceased, which led to his death. He said he acted under provocation and/or self defence. Ground 4 is not arguable.

[14] Ground 6 has no substance. The cause of death was not in dispute. There was no need for the trial judge to direct the assessors that Dr. Perera was only expressing an opinion on the cause of death.

Result

[15] Extension of time refused.

[16] Leave to appeal refused.

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

Solicitors:
Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent