Rakula v The State [2005] FJSC 5; CAV0004.2004S (21 October 2005)

IN THE SUPREME COURT OF FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0004 of 2004S
( Fiji Court of Appeal No. AAU0018 of 2004S)

BETWEEN:

LASARUSA RAKULA
Petitioner

AND:

THE STATE
Respondent

Coram: The Rt Hon Justice Thomas Gault, Judge of Supreme Court
The Hon Justice Robert French, Judge of Supreme Court
The Hon Justice Kenneth Handley, Judge of Supreme Court

Hearing: Tuesday, 11 October 2005, Suva

Counsel: Petitioner in Person
Mr R. Gibson for the Respondent

Date of Judgment: Friday, 21 October 2005, Suva

REASONS FOR JUDGMENT ON PETITION FOR SPECIAL LEAVE TO APPEAL

[1] At the end of the hearing the Court announced that the petition would be dismissed and that reasons would be given in writing in due course. Those reasons are now given.

[2] The petitioner was tried and convicted in the Magistrates Court in Lautoka, on three charges. The first was of unlawful use of a motor vehicle. The other two counts were of robbery with violence. All arose out of the same incident. The charges were directed to the preparation for and carrying out of a bank robbery. The appellant was sentenced to imprisonment for six months on the vehicle charge, four years concurrent in respect of the first robbery offence and three years consecutive in respect of the second robbery offence. The total sentence therefore was of imprisonment for seven years.

[3] The petitioner seeks special leave to appeal from the judgment of the Court of Appeal delivered on 26 November 2004. That Court dismissed the petitioner's appeal from the judgment of the High Court which upheld the convictions but varied the sentences by increasing that for each of the robbery offences to five years but directing that they should be served concurrently with the sentence for unlawfully using a motor vehicle.

[4] The evidence established that the vehicle used in the robbery was taken from the backyard of the owner who tried to stop the two people involved. This was observed by another witness to whom one of the offenders was speaking when the incident began.

[5] At the trial the vehicle owner did not definitely identify the petitioner. She was clear that the person who prevented her intervention was not either of the other two co-accused but, though not sure, she thought it might have been the petitioner. The other witness was quite clear. He positively identified the petitioner when in the dock with the two co-accused as the person he had talked with and who restrained the vehicle owner before entering the passenger seat of the vehicle as it made off.

[6] The evidence also established that following the robbery, the petitioner purchased gin, and drank through the night. He had in a purse banknotes of different large denominations and gave a driver and his partner each $200. He was at the time unemployed.

[7] At the trial the petitioner was represented by counsel. He elected not to give or call evidence.

[8] On appeal to the High Court the petitioner was represented by the same counsel who had acted for him at the trial. According to that Court’s judgment, two grounds of appeal were argued. The first was that there was insufficient evidence of the petitioner's part in the robbery and the second was that the trial Magistrate erred in relying upon the absence of explanation for the petitioner's possession of the money.

[9] Before the Court of Appeal, the petitioner represented himself. He raised a number of grounds of appeal. On analysis they can be distilled into three grounds. The first was that the evidence was not sufficient to justify the conviction. The second was that there was evidence of alibi not given by the petitioner and his witnesses that reasonably could have led to acquittal. This was said to be attributable to the incompetence of his trial counsel and to have resulted in an unfair trial. The third was that mistreatment of the petitioner by the police prior to trial led to a miscarriage of justice.

[10] In its judgment the Court of Appeal referred to lengthy grounds of appeal all of which related to matters of fact or of fact and law and which were not within the jurisdiction of the Court of Appeal as confined by section 22 of the Court of Appeal Act. That provision expressly limits appeals from the High Court in its appellate jurisdiction to questions of law only.

[11] The Court of Appeal went on to deal with the claim of incompetence of trial counsel. The Court noted that this point had not previously been raised and that the same counsel acted on the appeal to the High Court as had conducted the trial. The Court referred also to the absence of any evidential foundation for the complaints. Citing Ensor v. R [1989] 89 Cr App R, it said that an appellate court will only interfere with a conviction on the ground that counsel has not conducted the case properly if it is satisfied that the manner in which it was conducted amounted to flagrant incompetence or in any other way was such that there had been a miscarriage of justice.

[12] The Court referred to the petitioner's request to adduce further evidence on appeal. The proposed evidence was not before the Court but, in any event, it held that having been reasonably available at the time of the trial it did not qualify as fresh evidence to be admitted on appeal

[13] The Court of Appeal also referred to a claim by the petitioner of assault by the police before he was interviewed. This was held to be irrelevant in that no evidence had been led at the trial of any statements said to have been made by him to the police.

[14] This Court can have no wider jurisdiction than the Court appealed from and therefore is confined to questions of law. In addition, section 7(2) of the Supreme Court Act 1998 provides:

“7(2) In relation to a criminal matter, the Supreme Court must not grant special leave to appeal unless –

(a) a question of general legal importance is involved;

(b) a substantial question of principle affecting the administration of criminal justice is involved; or

(c) substantial and grave injustice may otherwise occur.”

[15] In his petition to this Court, the petitioner set out seven issues which he sought to rely upon. He supported these in his written submissions and in oral argument under three heads. They were essentially that, because of the advice and conduct of his trial counsel, the trial was unfair and his case was not fairly presented; that the Court of Appeal erred in denying him the opportunity to present fresh evidence, and that his mistreatment by the police should not have been regarded as irrelevant since, he claimed, involuntary statements he made to the police were used in the investigation to obtain further evidence used against him at his trial.

[16] There has not been presented to this Court any affidavit or other outline of further evidence that would have been given. Nor is there before the Court any evidence supporting the claims of counsel incompetence or of mistreatment of the petitioner by the police. These are factual matters in any event and could not be considered on a final appeal.

[17] Accordingly we are satisfied that no question of law is raised and certainly no question of general legal importance or of principle that warrants the grant of special leave to appeal. Nor do we find any grave injustice in this case.

[18] Three matters are worthy of comment. The first is that while we agree with the Court of Appeal that insufficiency of evidence is not a question of law, there may be a question of law where it is contended that there is no evidence of an element of the alleged offence. It was the former that was expressly advanced before the High Court and we are satisfied that in rejecting it the judge made no error of law.

[19] The second point relates to complaints on appeal of errors by or incompetence of trial counsel. In other, common law jurisdictions there has been a trend away from the use of tests such as of “flagrant incompetence” in recent years. The focus has been rather on the impact of any trial irregularity on the outcome rather than on the performance of counsel. Recent authorities are cited in Sangsuwan v. The Queen [2005] NZSC 57.

[20] Thirdly, we are inclined to the view that the judgment of the Court of Appeal might have defined that Court’s jurisdiction more narrowly than is appropriate. On appeal from the decision of a judge sitting in the High Court's appellate jurisdiction there may be cases in which, in the interests of justice, a point of law not raised in the initial appeal should be considered.

Rt Hon Justice Thomas Gault

Judge of Supreme Court

Hon Justice Robert French

Judge of Supreme Court

Hon. Justice Kenneth Handley

Judge of Supreme Court

Solicitors:

Petitioner in Person

Office of the Director of Public Prosecutions, Suva for the Respondent

CAV0004.04S