Raitamata v State [2008] FJSC 32; CAV0002.2007 (25 February 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0002 OF 2007
(Fiji Court of Criminal Appeal No. AAU0064/2005S)

BETWEEN:

JOSUA RAITAMATA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon. Justice Keith Mason, Judge of the Supreme Court
The Hon. Justice Robert French, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: 18 February 2008, Suva

Counsel: Petitioner in Person
W. Kurisagila for the Respondent

Date of Judgment: Monday, 25 February 2008, Suva

JUDGMENT OF THE COURT

Introduction

1. This is a petition to extend time within which to seek special leave to appeal from a decision of the Court of Appeal. The petitioner was convicted of offences of robbery with violence and house breaking in 2004. He appealed against his convictions and sentences to the High Court. That appeal was dismissed. His appeal to the Court of Appeal was dismissed summarily under s 35(2) of the Court of Appeal Act in October 2005.
   
2. For the reasons that follow, having regard to the significant delay and the want of merit in the proposed petition, we are not prepared to extend time. The petition will be dismissed.
   

Factual and procedural background

3. The petitioner, Josua Raitamata, was convicted in the Magistrates Court at Nausori on 27 August 2004 of two offences, one of robbery with violence and the other of shop breaking, entering and larceny. The formal charges in respect of each of the offences were as follows:
   

"1. ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code, Cap 17.

Particulars of Offence

Josua Raitamata with three others, on the 22nd day of November 1999 at Nausori in the Central Division, robbed one Suresh KUMAR SINGH s/o RAGHUBAR SINGH of $5,541.38 cash and immediately before such robbery used personal violence to the said Suresh Kumar Singh s/o Raghubar Singh.

2. SHOP BREAKING ENTERING AND LARCENCY: Contrary to Section 310(a) of the Penal Code Act 17.

Particulars of Offence

JOSUA RAITAMATA and TOMASI BAINIVALU between the 20th day of June 2000 and the 21st day of June 2000 at Nausori in the Central Division broke into the shop of RAKESH NARAYAN s/o ROOP NARAYAN and stole from therein assorted jewelleries valued $1,219.00, assorted electrical items valued $1,245.00, assorted mechanical tools valued $83.00, 45 Tabua valued $1,450.00, 12 wrist watches valued $500.00, cash $1,859.26 and assorted household items valued $2,908.00, all to the total value of $15,304.26 the property of the said RAKESH NARAYAN s/o ROOP NARAYAN."

4. Mr Raitamata was convicted after trial on each of the offences. For the offence of robbery with violence, he was sentenced to four years imprisonment. For the offence of shop breaking, entering and larceny, he was sentenced to two and a half years to be served consecutively upon the sentence imposed in respect of the robbery with violence. He applied for leave to appeal out of time to the High Court. Leave to appeal was granted by Shameem J on 20 December 2004. He appealed against both the convictions and against the sentences, the latter on the basis that the totality of the term involved was excessive. On 29 July 2005, Shameem J dismissed his appeal.
   
5. On 2 September 2005, Mr Raitamata lodged an application for leave to appeal to the Court of Appeal from the judgment of Shameem J. The written submission accompanying his letter to the Court specified particular grounds of appeal and argument in support of those grounds. The substance of the grounds was as follows:
   

1. In respect of the conviction for robbery with violence he contended that the trial judge erred in law and in fact in accepting the evidence of a prosecution witness who was said to have identified him in an identification parade conducted by police. He contended that it could not be ascertained that an identification parade had taken place. He asserted that the relevant prosecution witness had only had the opportunity to identify him for the first time in the dock.

2. In respect of the conviction for shop breaking, the ground of appeal was difficult to follow. It was in the following terms:

"That it is respectfully submitted the basis of being in procession [sic] of stolen goods should have allowed the charges be amended to its correct constituent elements in regards to the indictment. Thus it is clearly outlined in the trial Magistrate’s summoning – up that in neither stages of the issue matter could there be a direct evidence to implicate myself in the principal offence. Therefore, I instinctively feel that the trial Magistrate should have made an effort to amend the indictment to its proper elements and more soothe prosecution to see that the indictment laid out, is to be correct and justful." [sic]

It was not possible to understand this ground by reference to the argument that followed, although the thrust of it seems to have been that the magistrate should have directed an amendment to the indictment.

3. In respect of the sentences imposed the grounds may be summarised as follows:

(i) A failure by the magistrate to take into account that the first sentence of four years would be running consecutively on a sentence of 34 months imposed in respect of an earlier conviction and that the combination of the three consecutive sentences was too harsh, manifestly excessive and wrong in principle.

(ii) Failure by the trial judge to have regard to the overcrowding in Fiji prisons.

(iii) The sentence imposed offended the totality principle.

(iv) Failure by the magistrate to consider that all properties taken in the shop breaking case were recovered and given back to the owner and that it would have been appropriate to impose a concurrent sentence.

(v) Failure by the magistrate to have regard to the petitioner’s previous good character and his efforts to live an honest and industrious life.

6. On 19 October 2005, the petitioner and counsel for the State appeared before the President of the Court of Appeal who at the conclusion of the hearing delivered a judgment recorded in the following terms:
   

"No grounds of law. Dismissed under Section 35(2)."

On 23 November 2006, Mr Raitamata lodged an application with this Court to enlarge the time within which he could seek special leave to appeal against the judgment of the Court of Appeal. The Court has already made comment about the need for some explanation of the reasons for summary dismissal under s 35(2) in Tubuli v The State Criminal Appeal No CAV0009/06. We need not repeat those comments here.

Statutory Framework – Rules of Court relating to time limitations

7. The petitioner seeks, in effect, leave to bring out of time an application under s 122(2) (b) of the Constitution for special leave to appeal against the decision of the Court of Appeal. Order 6 of the Supreme Court Rules says:
   

"6. A petition and affidavit in support must:

(a) be lodged at the Court Registry within 42 days of the date of the decision from which special leave to appeal is sought; and

(b) be served upon the Registrar and all parties to the proceedings who are directly affected by the petition."

Order 46 of the Rules provides:

"46. The High Court Rules and the Court of Appeal Rules and the forms prescribed in them apply with necessary modifications to the practice and procedure of the Supreme Court."

8. The High Court Rules do provide for that Court to enlarge the time prescribed by any provision of those Rules for taking any step. On that basis it may be accepted that there is a general power in the Supreme Court to extend time limited for filing a petition for special leave to appeal against a decision of the Court of Appeal.
   

The explanation for delay

9. In his application, sent by way of letter to the Chief Registrar, the petitioner said that he had not known how to formulate grounds properly so that they dealt only with matters of law. He had just recently obtained advice on how to formulate grounds on matters of law, hence the late application.
   

Proposed grounds of appeal against the conviction

10. Mr Raitamata’s letter identified six proposed grounds of appeal to this Court if special leave were granted. They may be summarised as follows:
    

1. The High Court failed to consider that the Magistrates Court allowed the trial to proceed in the absence of legal representation for the petitioner – in contravention of s 28(1) (d) of the Bill of Rights.

2. The High Court erred in law in not finding that the magistrate had failed to appropriately direct herself on the principles to be applied in determining issues of identification.

3. The High Court erred in law in failing to consider the failure by the magistrate to warn herself of the special need for caution before convicting in reliance on the correctness of identification by a prosecution witness.

4. There was no clear or direct evidence to prove the offence with which the petitioner was charged.

5. The High Court failed to consider that the trial was conducted unfairly by the Magistrates Court as it relied solely on the evidence of the second prosecution witness which was unreliable and contradicted other prosecution evidence.

6. The conviction was unsafe and unreliable and wrong in all aspects of law.

Whether time should be enlarged and special leave to appeal granted

11. This is an application, filed on 23 November 2006, to enlarge time to seek special leave to appeal against the decision of the Court of Appeal given on 19 October 2005, dismissing an appeal against the judgment of the High Court given on 29 July 2005, which in turn dismissed appeals against conviction and sentence imposed in the Magistrates Court at Nausori on 27 August 2004.
    
12. The difficulties facing a person without legal advice in formulating grounds of appeal on questions of law are not to be under-estimated. Those difficulties, however, are not a basis for setting aside the requirements of the Act and the Rules, nor can they be a basis upon which an unsuccessful appellant to the Court of Appeal can simply raise for the first time new grounds upon the basis of which special leave to appeal is sought. This will not preclude this Court, in a case which raises questions of the type necessary to warrant the grant of special leave under s 7(2) of the Supreme Court Act, from entertaining an application which, for good cause shown, raises such a question for the first time. None of the proposed grounds of appeal fall into that category.
    
13. There was a complaint that the High Court failed to consider that the Magistrates Court allowed the trial to proceed in the absence of legal representation for the petitioner. This did not, however, form part of the grounds of appeal before the High Court. Section 28(1)(d) of the Constitution provides that every person charged with an offence has the right:
    

"to defend himself or herself in person or to be represented, at his or her own expense, by a legal practitioner of his or her choice or, if the interests of justice so require, to be given the services of a legal practitioner under a scheme for legal aid;"

The record discloses that on 5 February 2001 both the petitioner and his co-accused asked for legal aid counsel to assist in the hearing. However, on 20 October 2003 the magistrate’s notes indicate that the petitioner did not want any legal representation while his co-accused wanted legal aid assistance. The record stated:

"This Court has given enough time for Tomasi to arrange a lawyer. This was revealed to me on 9/7/2003. He has to quickly get his application done and I shall hear this matter in the next call date."

Another note, on 22 November 2003, records that Accused No 1, Mr Raitamata, did not need legal aid. He complained of delay in commencing the trial at an appearance on 1 March 2003. He was recorded as saying:

"It’s been 4 years now. Ask Court to exercise our right under constitution."

The magistrate’s note indicated that he was the cause of the delay and had "jumped bail since December 2001-October 2003".

14. There is nothing in the record to indicate that Mr Raitamata was denied an opportunity to exercise such rights as the Constitution provides in relation to legal representation. Those rights are plainly not absolute.
    
15. The question of the delay of the trial was raised in submissions filed in this Court on 12 December 2007. The delay, however, was not a matter before the High Court, nor before the Court of Appeal. In the circumstances, this Court would not be justified in granting the extension of time sought by the petitioner, nor in granting special leave in the event that such an extension were allowed. The petition is therefore dismissed.
    

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Robert French
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:
Petitioner in Person
Office of the Director of Public Prosecutions, Suva for the Respondent