Xhemali v State [2015] FJCA 44; AAU91.2013 (19 March 2015)

IN THE COURT OF APPEAL
AT SUVA

CRIMINAL APPEAL NO. AAU 91 OF 2013
(High Court HAC 49 of 2011)

BETWEEN:

ELTON XHEMALI
Appellant

AND:

THE STATE
Respondent

Coram : Chandra RJA
Counsel : Mr. F. Vosarogo for the Appellant
Mr. M. D. Korovou for the Respondent

Date of Hearing : 21 January 2015
Date of Ruling : 19 March 2015

RULING

1. This is an application seeking enlargement of time to appeal in terms of Section 35 of the Court of Appeal Act (Cap.12) and Rule 40 of the Court of Appeal Rules.
   
2. The Appellant was charged with another for attempting to export an illicit drug contrary to Sections 9 and 4 of the Illicit Drugs Act 2004.
   
3. The prosecution case was that the Appellant and the co-accused were guests at Hexagon Hotel, the Appellant having checked in before the co-accused. The Appellant had paid for the room when the co-accused had checked in. The Appellant had been seen in his room with the co-accused. Subsequently, the Appellant had been seen leaving the hotel at the time that the co-accused had checked out. The Appellant and the co-accused had departed from the hotel in different taxis and proceeded to the airport. They had checked in separately for an outbound flight to Melbourne. The bags of the Appellant and the co-accused had been checked and on finding a powdery substance in the bag of the co-accused, both accused had been detained and taken to the Police station. On chemically testing the contents of the co-accused's bag it was revealed that the substance in the co-accused's bag was cocaine.
   
4. The Appellant and the other accused were tried before the High Court at Suva and at the conclusion of the trial and summing up two of the three Assessors brought in a verdict of not guilty against the Appellant while the third Assessor was of the opinion that he was guilty of the charge that he was jointly charged with the other accused.
   
5. The learned trial Judge overturned the verdict of the Assessors and found the Appellant guilty of the charge and sentenced him on 4th June 2012 to 10 years imprisonment with a non-parole period of 8 years.
   
6. The Appellant's application for extension of time was lodged in Court on the 11th of September 2013, a delay of almost 14 months. He has set out the reasons for the delay in his affidavit in support of the application.
   
7. The main reason that he has set out in his affidavit for the delay is that he being a foreigner and not being familiar with the Laws in Fiji and being in remand throughout after he was arrested on 26th January 2011, that he was not able to get his relatives to support him for legal assistance.
   
8. In his proposed grounds of appeal he has set out the following grounds of appeal:
   

"(a) That the learned trial judge erred in law and fact by not accepting that majority (2 assessors) opinion of the assessors that the Appellant was not guilty of Count 1 on the Information when such refusal of the trial judge to concur with the assessors was demonstrably perverse or unsafe or unsatisfactory because the trial judge ought to have entertained a doubt on Count 1 in relation to the culpability of the Appellant.

(b) That the learned trial judges' acceptance of the admissions in the caution interview of the co-accused caused prejudice against the Appellant in that the co-accused's caution interview contained prejudicial evidence against the Appellant, which evidence was inadmissible against him in law.

(c) That the learned trial judge gave undue weight and regard to circumstantial evidence of the co-accused and the Appellant proximity and closeness, inter alia, as sufficient evidence of the existence of irresistible interference of complicity without drawing his mind to the evidence of the co-accused in which she claimed sole proprietorship and preparation of the suitcase containing illicit drugs.

(d) That the learned trial judge misdirected and did not give adequate directions to the assessors on the elements required for joint enterprise in his summing up which misdirection and lack of adequate directions was prejudicial to the Appellant.

(e) That in all the circumstances of the case, there has been a miscarriage of justice by reason of the inconsistency of verdict/opinion given by the assessors and the failure of the learned trial judge to correct such inconsistency is tantamount to preservation of a judgment that cannot be supported by logic and evidence.

(f) That the learned trial judge erred in law by declining to accept the opinion of the majority in Count 1 as the more palatable and consistent opinion with the evidence and such non acceptance precipitated to a conviction that is unsafe considering all the circumstances of the case.

(g) That the learned trial judge's summing up did not adequately address the evidence in its totality in favour of the Appellant and such inadequacy of the trial judge's summing up was prejudicial to the Appellant in the Court's judgment.

(h) That the learned trial and sentencing judge erred in law and fact by finding that the Appellant's level of criminal responsibility consisted of equal involvement when no such evidence was presented to Court at the trial with the result that the aggravation taken by the court in sentencing was erroneous in fact and not made beyond reasonable doubt.

(i) That in all the circumstances, the sentence imposed upon the Appellant was manifestly excessive."

9. In considering the application for extension of time it would be necessary to consider the proposed grounds of appeal.

10. In Kumar v State, Sinu v The State, Criminal Appeal No. CAV 0001/09 the Supreme Court said:
    

"Appellate Courts examine five factors by way of a principled approach to applications for extension of time to appeal:

(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) Whether 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."

11. In the present application the length of the delay is almost 14 months and the reasons for the delay as set out in the affidavit of the Applicant is that as he was a foreigner, he was not familiar with the laws in Fiji and being in remand throughout he was unable to get assistance from his relatives to pursue his appeal in time.
    
12. The delay of almost 14 months is usually not excusable and where an Applicant in remand has delayed by about 3 months in filing an appeal, such a delay is generally excused. However, in the present instance the Appellant's co-accused had made an application for leave to appeal in time and has been granted leave to appeal. (Criminal Appeal No. AAU 48 of 2012 – 4 December 2014). Therefore the application of the Applicant will be considered in that background.
    
13. As to whether the application can be allowed would therefore depend on whether there are grounds of appeal which merit consideration.
    
14. In the proposed grounds of appeal which have been set out above emphasis has been placed on the fact that the learned trial Judge had overturned the verdict of the Assessors and convicted the Applicant. The trial judge is the ultimate judge of fact and law and is not bound by the verdict of the Assessors. In overturning the verdict of the Assessors the trial Judge has to give cogent reasons for doing so.
    
15. Grounds (a), (e) and (f) are based on the premise that the learned trial Judge's reasoning in overturning the verdict of the Assessors was not cogent and had not addressed the key elements of the offence for which he found evidence against the Appellant. The Applicant has relied on the decision in Leone Lautabui & Others v The State, Supreme Court Criminal Appeal No.CAV011 and CAV 025 of 2008 where it was stated that:
    

"The authorities to which we have referred make it clear that the reasons for the Judge not agreeing with the majority opinion of the assessors must be cogent and in sufficient detail to enable this court critically to examine them in the light of the whole of the evidence and reach a conclusion on whether the decision to reject the majority opinion of the assessors is justified."

16. The learned trial judge in his judgment has set out his reasons for disagreeing with the verdict of the Assessors but as to whether such reasoning has been cogent and in sufficient detail is arguable and could be tested before the full court of the Court of Appeal.
    
17. Ground (b) of the proposed grounds of appeal is on the basis that the learned trial Judge had not adequately directed the Assessors on the effect of the caution interview of the 1st accused in that it was not admissible against the Appellant. The learned trial Judge has adequately dealt with that position in his summing up in paragraph (47) and therefore there is no merit in that ground.
    
18. Ground (c) is based on the fact that since the co-accused had claimed in her caution interview that she had taken the responsibility regarding the preparation of the suitcase and claiming its ownership and therefore there was no evidence against the Applicant in respect of same. The learned trial Judge had relied on circumstantial evidence in arriving at his decision that there was complicity between the two accused in relation to the commission of the offence which has been set out in the judgment adequately. Therefore there is no merit in this ground.
    
19. Ground (d) is on the basis of inadequate directions regarding joint enterprise. The learned trial judge in his summing up has adequately dealt with joint enterprise and therefore there is no merit in this ground.
    
20. Ground (g) is on the basis that the learned trial Judge's summing up did not adequately address the evidence in its totality in favour of the Appellant. This ground together with grounds (a), (e) and (f) would be arguable as the full court of the Court of Appeal would be in a position to consider the entirety of the evidence.
    
21. Grounds (h) and (i) relate to the severity and excessiveness of the sentence especially in view of the long period of remand that the Applicant was subjected to and the fact that he was a first offender. There has been no guideline judgment setting out the tariff in cases relating to cocaine in Fiji. In State v Bravo FJHC 172, HAC 145.2007L (12 August 2008) the accused was sentenced to 8 years for importation/possession of 2kg of cocaine. In the present case the quantity was 521.6 grams.
    
22. The Applicant has been sentenced to 10 years imprisonment and therefore it is arguable as to whether such sentence was harsh and excessive and leave is granted regarding grounds (h) and (i).
    
23. As the grounds (a), (e), (f), (g), (h) and (i) are arguable and merit leave, the application for extension of time is allowed as it is probable that all or at least some of these grounds of appeal may succeed.
    
24. In allowing this application for extension of time the Respondent will not be unfairly prejudiced as the Respondent would have to deal with the appeal of the co-accused in any event.
    
25. As leave was granted in the appeal of the co-accused it would be in the best interests of justice to have this appeal listed for argument together with the appeal of the co-accused.
    

Orders of Court:

(a) The application for extension of time to file leave to appeal is allowed.

(b) The appeal of the Applicant is to be listed with the appeal of the co-accused for argument before the Court of Appeal.

Hon. Justice S. Chandra
Resident Justice of Appeal