Boila v State [2008] FJSC 35; CAV0005.2006S (25 February 2008)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0005 of 2006S
(Fiji Court of Appeal No.AAU0073 of 2005S)

BETWEEN:

SENIJIELI BOILA
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: Monday, 18th February 2008, Suva

Counsel: Petitioner in Person
A Prasad for the Respondent

Date of Judgment: Monday, 25th February 2008, Suva

REASONS FOR JUDGMENT OF THE COURT

[1] At the conclusion of the hearing the Court announced that this petition was dismissed because it did not meet the criteria for special leave in a criminal matter (see Supreme Court Act 1998, s.7 (2)). These are our reasons for refusing special leave.

[2] The petitioner was charged with armed robbery and unlawful use of a motor vehicle. He pleaded not guilty. Following a trial in the High Court before a Judge and assessors he was convicted on both counts and sentenced to 7½ years on the first count and to a concurrent term of 6 months imprisonment on the second count.

[3] The Court of Appeal granted leave to appeal against the conviction, but restricted to the issue whether the assessors had been properly directed on the use of circumstantial evidence. The Court also heard and rejected an appeal against sentence.

[4] The facts disclosed by the evidence and the directions referable to circumstantial evidence are set out in the Judgment of the Court of Appeal (see Senijieli Boila and Anor v The State Criminal Appeal No. AAU0073 of 2005S).

[5] The Court of Appeal observed that no special directions are required of a trial judge in directing on the use of circumstantial evidence. What is required is a clear direction that the tribunal of fact must be satisfied of the guilt of the accused beyond reasonable doubt (McGreevy v Director of Public Prosecutions [1973] 1 WLR 276, applied Kalisoqo v R Criminal Appeal No.52 of 1984). See also R v Hart [1986] 2 NZLR 408. The adequacy of a particular direction will necessarily depend on the circumstances of the case.

[6] The petitioner did not suggest error in these principles as applied by the Court of Appeal.

[7] The Court of Appeal considered carefully the way in which the assessors were directed on the use of circumstantial evidence and the content of that evidence. It concluded that there was no error of law, and (having addressed additional matters relied upon, despite them being outside the leave granted) it was satisfied that there was no risk of a miscarriage of justice having resulted.

[8] We agree with these conclusions, which are sufficient to show that no basis for special leave exists.

[9] The petitioner has been self-represented at all stages. He relied upon the grounds formulated in letters addressed to the Chief Registrar of this Court dated 7 August 2006 and 20 November 2007. He sought a retrial.

[10] None of the matters raised demonstrated a case attracting special leave. Several of them (including the claims of unbalanced directions by the Judge, bias on the part of the assessors and want of a fair trial under the Constitution) never arose above bald assertions.

[11] Several of the matters raised by the petitioner were not addressed by the Court of Appeal, some of them not even having been ventilated in that Court. In so observing, we are not suggesting that this Court would lack jurisdiction to consider such matters if the criteria for a grant of special leave were otherwise established.

[12] Contrary to the written grounds, the trial Judge did not ignore the petitioner’s request for a lawyer or legal aid. There were several adjournments to enable the petitioner to obtain a lawyer, if he chose.

[13] The petitioner was allowed to call the previously notified alibi witness (his wife). He did not seek to call any other evidence in his defence. He chose not to give evidence himself.

[14] The reasoning of the trial Judge and the Court of Appeal on the matter of sentence reveals no matter that might attract a grant of special leave.

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