State v Khan [2015] FJHC 564; HAC01.2015 (4 August 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 01 OF 2015

BETWEEN:

STATE

AND:

1. MOHAMMED SHAHEED KHAN
2. ETHAN KAI

Counsel: Ms. S. Kiran with Ms. Fatiaki for Prosecution
Mr. Iqbal Khan for 1stAccused
Mr. J. Peluso with Mr. A. Singh & Ms. Subeska for 2ndAccused

Date of Hearing : 3rd of August 2015
Date of Ruling : 4th of August 2015

RULING

1. The learned counsel for the first accused in a letter dated 31st of July 2015 advised the court and the prosecution that he has instruction from his client to file an appeal to the Fiji Court of Appeal against the ruling of voire dire dated 27th of July 2015. Since the reasons for the voire dire ruling are to be delivered on 3rd of August 2015, the learned counsel sought an adjournment of the hearing which was set down to commence from 3rd of August 2015 for him to file his grounds of appeal in the Fiji Court of Appeal. The learned counsel further stated in this letter that he has further instruction from his client to file an application for stay of proceedings pending the appeal in the Fiji Court of Appeal.
   
2. The learned counsel of the prosecution objected for this letter and any adjournment of the hearing as the accused has no rights to appeal to the Fiji Court of Appeal against any interlocutory orders of this court. The counsel for the first accused then submitted few case authorities in order to substantiate his application for an adjournment on the grounds as stated in the said letter. I then invited the both counsel to make their submissions on this issue of adjournment, which they did accordingly.
   
3. The purpose of this ruling is not to discuss or determine the appeal jurisdiction of the Fiji Court of Appeal. The main issue to be determine in this application is whether the court could grant an adjournment of the hearing on the ground as stated in the said letter.
   
4. The learned counsel of the prosecution correctly submitted that Hon Justice Calanchini, the President of Fiji Court of Appeal in Muskan Balaggan v the State ([2012] FJCA 32; Misc. Action 11.2012 (25 May 2012) has discussed the appeal jurisdiction of the Fiji Court of Appeal in an inclusive manner. Hon Justice Calanchini held that;
   

“Section 3(3) in effect provides that in respect of an appeal from a final judgment of the High Court exercising its original jurisdiction leave is not required.

Under the Decree the jurisdiction of the Court is expressed as a jurisdiction to hear and determine appeals subject to the Decree and to such requirements prescribed by law. The expression "to such requirements prescribed by law" can in effect bsumed to be o be a reference to the requirements prescribed by the Act itself. It is therefore necessary to identify the requirements prescribed by the Act.

Part IV of the A headed "AppeaAppeals in criminaes.ases." Above section 21 is thding&ding "Right of appeal in crl casl cases." Under section 21 son cond oond on al held before the High Court may appeal to the Cthe Court of Appeal (a) against convictionction on any ground of appeal involving a questf lawe, (b) with the lthe leave of the Court of Appeal against cnst conviction on any ground involving a question of fact alone or a question of mixed law and fact or any other ground which appears to be a sufficient ground of appeal and (c) with the leave of the Court against sentence passed on conviction. In addition with the leave of the Court a person may appeal against the decision of a High Court Judge refusing bail pending trial. Section 22 makes provision for appeals by the State.

Under section 21 the only right of appeal which is consistent with section 3 (3) is the right to appeal against conviction on a question of law. Being an appeal against conviction on trial it is a final judgment from the High Court exercising its original jurisdiction. Under section 21 leave is not required and is therefore as of right.

However under section 21 in respect of an appeal against conviction on a question of fact or mixed fact and law leave must first be obtained. Although a final judgment from the High Court exercising its original jurisdiction, the appeal is not as of right. Similarly, in respect of an appeal against sentence, although from a final judgment of the High Court exercising its original jurisdiction, leave is required.

Furthermore, the right to appeal under section 21 is restricted to a person convicted on a trial. There is an exception in that section 21 (3) gives a right to appeal in respect of a decision by a High Court judge granting or refusing trial bail. Leave is required under section 21 (3)......................

There is no provision in Part IV&#16the Act that cont confers a jurisdiction on the Court of Appeal to hear interlocutory criminal appeals".

5. Having determinermined that the Fiji Court of Appeal has no jurisdiction to hear interlocutory criminal appeals from the High Court in the exercise of its original jurisdiction, Hon Justice Calanchini further held that;
   

"Whether a decision or judgment is final or interlocutory is an issue which usually arises in civil proceedings. In criminal proceedings it is more readily assumed that the final decision or judgment is the decision of the Court which brings the criminal proceeding to a conclusion.................

Where criminal proceedings are commenced in the High Court exercising its original jurisdiction and the matter proceeds to trial and the judge proceeds to pronounce judgment then that judgment is a final judgment. Every other application and every order made by the judge on the hearing of that application should be considered interlocutory".

6. Accordingly, it appears that the judgment of the court either finding an accused is guilty or not guilty is presumed to be a final judgment and every other order made by the judge should be considered as interlocutory.
   
7. Justice Gounder in Mohan v State ( 2014) FJCA 55; AAU0107.2013 ( 17 April 2014) has explicitly held that a voir dire ruling is an interlocutory ruling; hence the Fiji Court of Appeal has no jurisdiction to hear such an appeal.
   
8. However, the counsel of the first accused, having imprudently misguided himself, submitted that voir dire ruling is presumed to be a final judgment. He cripplingly relied on Ratu Ovini Bokini v The State ( 1999) 45 FLR 273, Harris v The Minister for Public Works ( [1912] HCA 56; 1912) 14 CLR 721, and Carr v Finance Corporation of Australia Ltd ( [1981] HCA 20; 1981) 55 A.L.J.R. 397), which I find has no relevancy or applicability for the issue under review in this application.
   
9. Having considered the reasons set out above, it is my opinion that the grounds for this application for adjournment have no merit. I accordingly refuse the application for an adjournment of the hearing.
   

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
4th of August 2015

Solicitors: Messrs Iqbal Khan & Associates for First Accused,
Aman Ravindra- Singh Lawyers for Second Accused,
Office of the Director of Public Prosecutions