Tubuli v State [2008] FJSC 37; CAV0009.2006 (25 February 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0009/06
(Fiji Court of Appeal No. AAU0010/2006)

BETWEEN:

PENIONI TUBULI
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

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 to apply for special leave to appeal against a decision of the Court of Appeal. The petitioner was convicted on his plea of guilty on 5 July 2005, of the offence of robbery with violence. He was sentenced to a term of imprisonment for five years by the Suva Resident Magistrates Court. An appeal to the High Court was dismissed on 7 October 2005 and an application for leave to appeal out of time to the Court of Appeal was dismissed on 28 March 2006, apparently pursuant to s 35(2) of the Court of Appeal Act. On 30 June 2006 the petitioner lodged a petition for special leave to appeal out of time to this Court.
   
2. For the reasons that follow, we are of the view that the application to enlarge time for seeking special leave to appeal to this Court should be allowed but that the petition for special leave should be dismissed.
   

Factual and procedural background

3. The petitioner pleaded guilty in the resident Magistrates Court at Suva to the following charge:
   

"PENIONI TUBULI and others on the 3rd day of July 2005 at Suva in the Central Division robbed BRAD SMITH of his wallet valued at $50.00 with cash $314.00 to the total value of $364.00 and at the [sic] such time of robbery did use personal violence to the said BRAD SMITH."

He was sentenced to five years imprisonment.

4. Mr Tubuli had six prior convictions dating back to 1998 when he was convicted of theft against the person. In 2002 he was convicted of robbery with violence and imprisoned for 12 months. He also had convictions for larceny from the person and larceny in July 2003 and June 2004.
   
5. On 18 July 2005 Mr Tubuli lodged a "Petition of Appeal" against his sentence in the High Court. Attached to the Petition was a handwritten letter setting out his grounds of appeal. They were as follows:
   

"1. ... I was caught right [sic] handed and also assisting the police officers or investigating officer about the money recovered in my possession.

2. ... I’ve pleaded guilty on my first appearance in court saving the courts [sic] time and money that the Learned Magistrate never takes a discount of my guilty plea.

3. ... the complainant or the investigating officer stated in my disclosure and also my police caution and interview that personal violence had occurred on that particular day. Sir, to tell the truth, I only snatched his wallet from his pocket and ran away from the complainant before they caught me.

4. ..., that sentence of 5 years imposed by the Learned Magistrate is too harsh and manifestly excessive in giving much weight to the circumstantial evidence as addressed by the prosecution."

He indicated that further grounds would be submitted. The appeal against sentence came on before Shameem J in the High Court of Fiji at Suva on 30 September 2005 and on 7 October 2005 it was dismissed.

6. The judgment on the appeal recited the facts, Mr Tubuli’s prior record and mitigating factors which he had advanced before the Magistrates Court. In his written submissions he had accepted that the sentence was within the relevant "tariff" but argued that inadequate weight had been given to mitigating factors. The Court agreed with the State’s submission that the sentence was "right in principle". The Court said:
   

"In this case, the tariff was 4 to 7 years. Because this was a borderline larceny from person case, a starting point of 4 years imprisonment would have been appropriate. A scaling up to 6 years, would reflect the luring away of the complainant, the force used on him by the holding of his neck, the fact that the offence was committed by a gang of youths, and the value of the money stolen. To reflect the guilty plea, remorse, and recovery of the money, I would scale down by 12 to 18 months. The 5 year term imposed is therefore correct in principle."

7. An application for leave to appeal out of time against the decision of the High Court was lodged with the Court of Appeal on 23 January 2006. In that application Mr Tubuli explained that his appeal was out of time because of the difficulty he had in seeking legal advice and the absence of any facilities to assist in his preparation of his appeal. His proposed grounds of appeal were as follows:
   

"1. Your Lordship, the appellant would like to question this Honourable Court of Appeal whether I the Appellant was entitled to a reduction of my sentence on the basis that I had pleaded guilty on the first occasion.

2. That the 5 years imprisonment was manifestly excessive in view of the circumstances of the case.

3. That I was prejudiced by the Learned Magistrate [sic] sentencing remarks when he failed to consider important issues such as mitigation. This can be clearly ascertained in Magistrate record [p 8]. Further the High Court failed to except [sic] this important fact."

8. On 28 March 2006 the President of the Court of Appeal recorded the following decision:
   

"No right of appeal in these grounds.

Dismissed under section 35(2)."

It appears from the record that Mr Tubuli was present in person and that the State was represented by Mr D Goundar.

9. On 30 June 2006 Mr Tubuli sent a letter to the Registrar of the Supreme Court seeking what he described as a "late appeal". We take this to have been treated by the Registry as a Petition for Special Leave to Appeal to this Court out of time. The time limited by the Rules of the Supreme Court for lodging a Petition for Special Leave is 42 days. A submission was sent to the Registrar setting out the grounds upon which special leave out of time was sought. Mr Tubuli referred to his lack of education and inexperience and his inability to access legal assistance. The substantive grounds he raised in support of his petition were in substance as follows:
   

1. The magistrate had erred by not having regard to his plea of guilty in fixing the sentence.

2. It was not clear that the magistrate had directed his mind to the totality principle of sentencing.

3. The magistrate had neglected to have regard to Mr Tubuli’s co-operation with the police when apprehended.

4. The magistrate had paid too much regard to Mr Tubuli’s previous record.

5. The magistrate erred in law and in fact in determining the proper range of sentence to be imposed. The sentence was wrong in principle as it did not allow for what might have been and for what are sometimes far worse cases of the kind for which a sentence of five years would properly be deserved.

10. Although the proposed grounds of appeal are, in the end, without merit, there is a jurisdictional question to be addressed. There is also a question of the procedure adopted by the Court of Appeal in disposing summarily of appeals from the High Court without adequately exposing its reasoning process for so doing. Before turning to those questions, it is convenient to have regard to the constitutional and statutory framework.
    

Constitutional framework

11. Chapter 9 of the Constitution deals with the judiciary. It defines the original and appellate jurisdiction of the High Court, the jurisdiction of the Court of Appeal and that of the Supreme Court. Under s 120(3):
    

"The High Court has jurisdiction, subject to the conferral by Parliament of rights of appeal and to such requirements as the Parliament prescribes, to hear and determine appeals from all judgments of subordinate courts."

12. Section 121 provides:
    

"(1) The Court of Appeal has jurisdiction, subject to this Constitution and to such requirements as the Parliament prescribes, to hear and determine appeals from all judgments of the High Court, and has such other jurisdiction as is conferred by law.

(2) Appeals lie to the Court of Appeal as of right from a final judgment of the High Court in any matter arising under this Constitution or involving its interpretation.

(3) The Parliament may provide that appeals lie to the Court of Appeal, as of right or with leave, from other judgments of the High Court in accordance with such requirements as the Parliament prescribes."

13. Section 122 defines the jurisdiction of the Supreme Court. It provides, inter alia:
    

"(1) The Supreme Court has exclusive jurisdiction, subject to such requirements as the Parliament prescribes, to hear and determine appeals from all final judgments of the Court of Appeal.

(2) An appeal may not be brought from a final judgment of the Court of Appeal unless:

(a) the Court of Appeal gives leave to appeal on a question certified by it to be of significant public importance; or

(b) the Supreme Court gives special leave to appeal.

(3) In the exercise of its appellate jurisdiction, the Supreme Court has power to review, vary, set aside or affirm decisions or orders of the Court of Appeal and may make such orders (including an order for a new trial and an order for award of costs) as are necessary for the administration of justice.

(4) Decisions of the Supreme Court are, subject to subsection (5), binding on the courts of the State.

(5) The Supreme Court may review any judgment, pronouncement or order made by it."

Statutory framework – The Court of Appeal Act Cap 12

14. Section 22 of the Court of Appeal Act deals with appeals from the High Court in its appellate jurisdiction in criminal cases. It relevantly provides:
    

"(1) Any party to an appeal from a magistrate’s court to the High Court may appeal, under this Part, against the decision of the High Court in such appellate jurisdiction to the Court of Appeal on any ground of appeal which involves a question of law only:

Provided that no appeal shall lie against the confirmation by the High Court of a verdict of acquittal by a magistrate’s court."

Section 22(1A) provides for appeals in respect of sentences imposed by the High Court in its appellate jurisdiction. Sections 22(2) to 22(5) are not material for present purposes. Section 22(6) provides:

"On any appeal brought under the provisions of this section, the Court of Appeal may, notwithstanding that it may be of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has in fact occurred."

The time limited for an appeal to the Court of Appeal or for an application for leave to appeal is 30 days from the date of the conviction or decision appealed against.

15. Section 35 of the Court of Appeal Act deals with the powers of a single judge of the Court. These include the power to give leave to appeal to the Court and to extend the time within which notice of appeal or of an application for leave to appeal may be given (s 35(1) (a) and (b)). Section 35(2) provides:
    

"If on the filing of a notice of appeal or of an application for leave to appeal, a judge of the Court determines that the appeal is vexatious or frivolous or is bound to fail because there is no right of appeal or no right to seek leave to appeal, the judge may dismiss the appeal."

Statutory framework – Supreme Court Act 1998

16. Section 7(2) of the Supreme Court Act 1998 provides:
    

"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."

A final judgment of the Court of Appeal

17. The appellate jurisdiction conferred on the Supreme Court by the Constitution is a jurisdiction to hear and determine appeals from "all final judgments of the Court of Appeal". A decision by the Court of Appeal to dismiss an appeal under s 35(2) is, for all practical purposes, a final decision of that Court. In our opinion, it also falls within the class of final judgment of the Court of Appeal contemplated by s 122(1). The constitutional concept of final judgment does not leave judgments of dismissal under s 35(2) unchallengeable by way of petition for special leave to appeal where one of the criteria for the grant of special leave in criminal cases set out in s 7 of the Supreme Court Act 1998 can be made out. The constitutional provision is to be interpreted broadly and not by reference to distinctions between interlocutory and final judgments relevant to rules governing civil procedure and informed by case management considerations. In our opinion, a decision under s 35(2) dismissing an application for leave to appeal out of time is a final judgment of the Court of Appeal for the purposes of s 122(1) of the Constitution.
    
18. The Court discussed the scope of the term "final judgment of the Court of Appeal" which appears in s 122(1) of the 1997 Constitution in Native Land Trust Board v Narawa Appeal No CBV0007/2002S given on 21 May 2004. In that case the Court said (at [34]:
    

"The term "all final judgments" appears in section 122 of the Constitution and defines the jurisdiction of the Supreme Court in relation to appeals from the Court of Appeal. There is no discretion available under the Constitution to allow the Supreme Court to entertain applications for leave to appeal against decisions of the Court of Appeal which are not final. The construction of the term "all final judgments" in section 122 is not linked to a case management regime that will mitigate the injustice or inconvenience that might otherwise be worked by the fine distinctions developed under the existing case law. Having regard to its use as a constitutional term and its functions in defining the jurisdiction of the Supreme Court, the term "final judgment" may require a wider interpretation than that which has evolved under rules of court in various jurisdictions."

The question canvassed in that case without final decision was whether a judgment of the Court of Appeal, disposing of an appeal from an interlocutory judgment of the High Court, could be regarded as a final judgment of the Court of Appeal. The constructional questions had not been fully argued before the Court in that case and, in any event, it was not necessary to come to a concluded view about the proper construction of s 122(1). The case was one in which even if there were jurisdiction it was clearly a case in which special leave should not be granted.

Later in 2004, this Court revisited the scope of the term "final judgment of the Court of Appeal" in Ralumu v The Commander Republic of Fiji Military Forces Civil Appeal No CBV0008 of 2003S. That case involved a petition for special leave to appeal against a decision of a single judge of the Court of Appeal refusing an extension of time to appeal to that Court from a judgment of the High Court refusing habeas corpus. In holding that the decision the subject of the special leave application was a "final judgment of the Court of Appeal" the Court said (at [51]):

In our opinion the better view is that a final judgment of the Court of Appeal, for the purposes of section 122 of the Constitution, is any judgment of the Court of Appeal which finally disposes of a proceeding in that Court. It was conceded by the first respondent that refusal by a judge of the Court of Appeal of an extension of time to bring an appeal is a final judgment of the Court of Appeal for the purposes of section 122 of the Constitution and may be the subject of a petition for special leave provided that it meets the criteria for the grant of such leave. We are satisfied that the concession was a proper one and that what occurred in this case was in substance a final judgment.

19. In reaching the conclusion that it did the Court referred to what it said in the Native Land Trust Board case (at [37]):
    

"It is to be kept in mind, however, that the Supreme Court is able, through the special leave requirement, to ensure that only those matters which are of sufficient important to warrant the grant of special leave come to it."

20. It may be noted also that the Court has, in recent decisions, worked upon the assumption, without discussing the question, that the dismissal of an appeal by a single judge under s 35(2) of the Court of Appeal Act is a final judgment of the Court of Appeal. In Simione Raura v The State Criminal Appeal No CAV0010 of 2005S, the Court dismissed, on its merits, a petition for special leave against a dismissal of an appeal by the President of the Court of Appeal pursuant to s 35(2) of the Court of Appeal Act. In the same sittings in Joji Waqasaqa v The State Criminal Appeal No CAV0009 of 2005S, this Court granted special leave to appeal against a dismissal pursuant to s 35(2) and set aside the order of the Court of Appeal and sentences imposed in the High Court.
    

Summary disposal of appeals or applications for leave to appeal under s 35(2)

21. The purpose and operation of s 35(2) was discussed by this Court in Raura in which it was said (at [17]-[18]):
    

"In our opinion the power given by this sub-section is one generally intended to be exercised in a summary way on a consideration of the notice of appeal. It is a power exercisable only where and when it appears from the notice of appeal that the appeal is vexatious or frivolous, or is bound to fail because there is no right of appeal or no right to seek leave to appeal. These are the pre-conditions for the exercise of the power. The power enables a judge to terminate an appeal without a hearing and without prior notice to the appellant, and for this reason it is a power that should be used sparingly and only in cases where one of the pre-conditions is plainly met. In Sashi Suresh Singh v Reginam [1983] 29 FLR 86 at 88 a like view was expressed by the Court of Appeal about a similar statutory provision. That decision also demonstrates that an appeal may lie from an order of dismissal if one of the pre-conditions of the exercise of the power is not met.

However, whilst the power is one generally intended to be exercised in a summary way on a consideration of the notice of appeal and without hearing any party, circumstances may arise where the single judge does hear the appellant."

22. The Court also observed in that decision that s 31 of the Court of Appeal Act recognises that it may give leave to an appellant to be present at "any proceedings preliminary or incidental to an appeal". The consideration of a notice of appeal under s 35(2) was regarded as such a proceeding and a single judge of appeal acting under that section as exercising the powers of the Court of Appeal. It followed that the single judge could give leave to an appellant to be present at the consideration of the notice of appeal. The Court held in that case that the President of the Court of Appeal did not fall into error of law in dismissing the appeal without hearing from the appellant.
    
23. The Court of Appeal record indicates that the appellant was present before the President of the Court of Appeal when the dismissal order was made under s 35(2). Nothing turns on that fact for present purposes. What is of some significance is that the record of decision was brief in the extreme.
    
24. As it is clear that an appeal may lie to this Court against a decision of dismissal under s 35(2), it is not only desirable, but necessary, that the judge exercising that power of the Court of Appeal make clear the basis upon which it is being exercised. If an appeal is being dismissed as vexatious or frivolous then there should be a short statement of the reasons for that characterisation. If an application for leave to appeal out of time is refused, as appears to have been the case here that should be made clear. If an appeal is dismissed on the basis that it is out of time and leave has not been sought, then that should be made clear, although in such a case an unrepresented petitioner might be invited to seek leave. If the appeal is dismissed because it does not involve "a question of law only" as required by s 22(1), then that should be stated and the basis for it briefly stated. It may be that an appeal is brought against "a sentence imposed by the High Court in its appellate jurisdiction" under s 22(1A) and attracts the constraints imposed by that subsection. A sentence will be imposed by the High Court in its appellate jurisdiction when it increases or reduces a sentence imposed by a subordinate court. Dismissal of an appeal against sentence by the High Court does not amount to imposition of a sentence by that Court and therefore the limitations applicable under s 22(1A) do not apply in such a case.
    
25. The provision of reasons for decision in relation to summary dismissal will not, in most cases, require the production of extensive judgments. It may be that no more than a half page statement will be sufficient to make clear the reasons for which the appeal is being dismissed. The unsuccessful appellant must be given the opportunity both to understand why the appeal was dismissed and to consider whether there is any basis upon which a special leave application may be made to the Supreme Court. The Supreme Court itself is assisted in dealing with such petitions when it understands the basis upon which the dismissal order was made.
    

The merits of the present case

26. Having said that, we do not consider that the failure to provide reasons, not itself a matter raised in the petition, would constitute, in the circumstances of this case, a ground for granting of special leave. That is because the substantive grounds of appeal themselves identify no relevant error on the part of the High Court, nor the adoption or acceptance by that Court of any error apparent from the magistrate’s decision. The petitioner had the benefit of what amounted to a substitutive judgment on sentence by the High Court which took account of his guilty plea, his remorse and the recovery of the money. Having regard to the approach that the High Court took in reviewing the sentence imposed by the magistrate, no error of law was involved. None was disclosed on the grounds of appeal and the appeal was rightly dismissed by the Court of Appeal. In the present case it appears that the application before the Court of Appeal, which was an application to enlarge time within which to appeal, may have been treated by the President of the Court of Appeal as an application for leave to appeal and dealt with on that basis under s 35(2).
    
27. The petition is a petition for special leave to appeal out of time. The delay was comparatively brief. No prejudice was asserted by the State. Time will be extended, but the petition dismissed.
    

Orders:

1. The time limited for filing an application for special leave to appeal against the decision of the Court of Appeal given on 28 March 2006 is extended to 30 June 2006.

2. The petition for special leave is 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