Mototabua v State [2008] FJSC 41; CAV0013.2007S (26 February 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0013 OF 2007S
(Fiji Court of Appeal No.AAU00 16 of 2005S)

BETWEEN:

ELIKI MOTOTABUA
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: Tuesday, 26th February 2008, Suva

Counsel: Petitioner in Person
A Driu for the Respondent

Date of Judgment: Tuesday, 26th February 2008, Suva

JUDGMENT OF THE COURT

Introduction

[1] The Court dismissed this petition for special leave to appeal after the hearing on 26 February 2008. We now publish our reasons.

{2} On 29 December 2003 Eliki Mototabua was found guilty of being in possession of a dangerous drug, namely Indian hemp. He was fined $100. He appealed against his conviction to the High Court which, on 17 January 2006, dismissed the appeal and increased the sentence to 18 months imprisonment backdated to 29 December 2003. A subsequent appeal to the Fiji Court of Appeal was dismissed, albeit that the Court found that his arrest by an off duty special constable, had been unlawful. The Court of Appeal found that he had been convicted on evidence which was not obtained unlawfully. The Court of Appeal dismissed his appeal on 23 March 2007.

[3] Mr Mototabua then lodged a petition for special leave to appeal to this Court. For the reasons that follow, no basis for the grant of special leave was made out. We have, however, expressed our concern about the unacceptable delay in this and a number of other cases in the progress of matters to trial and appellate courts in Fiji. We also note our concern about the approach taken by the magistrate in receiving some inadmissible evidence. However, for the reasons which follow, we did not consider that any basis for the grant of special leave was made out.

Factual and procedural background

[4] Eliki Mototabua was charged, on 7 February 2003, with the offence of being found in possession of a dangerous drug, contrary to ss 8(b) and 41(2) of the Dangerous Drug Decree No 1 of 1990 as amended by the Dangerous Drug Decree of 1991, Act 114. The particulars of the offence were as follows:

"ELIKI MOTOTABUA on the 5th day of February, 2003 at Korovou, Tailevu in the Central Division was found impossession [sic] of 11.5 grams of Dangerous Drugs namely Indian Hemp."

[5] Mr Mototabua pleaded not guilty in the Magistrates Court at Tailevu on 7 February 2003. After a number of remands his case proceeded to trial on 24 October 2003. Mr Mototabua represented himself. The hearing was adjourned at 12.25pm on the first day for reasons which are not apparent from the record except the magistrate’s note:

"It is now 12.25pm on this Thursday afternoon. Good time for adjournment."

The hearing resumed a month later on 25 November 2003. At the close of the prosecution case, Mr Mototabua indicated he wanted to file a submission of no case to answer. He was given seven days to do that and the case was adjourned to 10 December 2003. However, when the case resumed on 10 December 2003 he opted to give sworn evidence. The case was adjourned for judgment to be given on 23 December 2003. On that day it was further adjourned for judgment to be given on 29 December 2003. The magistrate’s record on that day included a written judgment and a finding of guilty.

[6] The magistrate fined Mr Mototabua $100 to be paid within 28 days and an order that in default he was to serve three months imprisonment.

[7] Eight months later, on 31 August 2004, Mr Mototabua sent a letter to the Senior Court Registrar at the Valelevu Courthouse, Valelevu in Nasinu. The letter was described in its head as a "Skeleton Application" for an appeal against the conviction and sentence in the Magistrates Court on 29 December 2003. The proposed appeal was, of course, well out of time. It appears, however, that Mr Mototabua was given leave to appeal out of time by Gates J on 31 August 2004.

[8] The appeal came on for hearing in the High Court before Winter J. The record of appearances on the appeal in the High Court is chronologically somewhat confused. However, it seems that Mr Mototabua first appeared in the High Court on the substantive appeal on 9 June 2005. The matter was listed for hearing on 19 July 2005. The record was found to be deficient. The matter went on before the High Court again on 29 August 2005. There was then argument about the conviction. The State raised the contention, pursuant to s.319 of the Criminal Procedure Code, that the penalty imposed by the Magistrates Court, namely the fine of $100, had been too lenient. The appeal was then adjourned part heard to 23 September 2005. It proceeded again on 21 October 2005 and on 30 November 2005.

[9] On 17 January 2006 Winter J gave judgment in which he dismissed the appeal against conviction and increased the penalty imposed on Mr Mototabua from a fine of $100 to a sentence of 18 months imprisonment, backdated with effect from 29 December 2003. At the time the appeal was heard he was said by Winter J to be serving "... 6-year term for wrongful confinement and rape" and was due to be released in 2010. It does not appear that Mr Mototabua was serving any term of imprisonment at the time that the magistrate imposed the fine on 29 December 2003. The effect of a sentence of 18 months imprisonment on 17 January 2006, backdated to that date is not at all clear. Subsequently the Court of Appeal appears to have regarded the sentence as having been imposed concurrently with a term of imprisonment Mr Mototabua was serving for rape.

[10] Mr Mototabua’s appeal to the Fiji Court of Appeal was lodged on the same day that Winter J delivered his judgment. It raised a number of grounds but in the Court of Appeal he was granted leave to appeal on one ground only. That ground went to the lawfulness of his original arrest in relation to the offence with which he was charged and of which he was convicted. The arrest had been effected by an off duty special constable. Mr Mototabua’s contention was the constable had no power to arrest him.

[11] The Court of Appeal found that Mr Motoabua’s arrest had been unlawful. It then went on to consider whether the evidence relied upon to convict Mr Mototabua had, by reason of the unlawful arrest, been obtained unlawfully. It referred to authority that evidence may be admissible in the discretion of the court even though it may have been obtained improperly or unlawfully. That consideration was academic because the Court held that even though the arrest may have been unlawful, the evidence was not obtained unlawfully. Drugs were not seized from Mr Mototabua following any unlawful search. They were found discarded in plastic bags on the ground where he had been seen to throw them; Attempts by Mr Mototabua in the Court of Appeal to argue that police had fabricated the evidence were rejected on the basis that they raised questions of fact and he had been granted leave to appeal only on the question of the lawfulness of his arrest. In any event, a lay witness who knew the accused gave what the Court of Appeal regarded as "quite unequivocal evidence." That she had seen the accused throw plastic bags to the ground as he was being chased by the off duty special constable. That evidence was accepted by the magistrate.

[12] The Court of Appeal dismissed the appeal on 23 March 2007.

[13] On the day that the appeal was dismissed Mr Mototabua lodged a petition for special leave to appeal against the judgment of the Court of Appeal. In summary his grounds for seeking special leave, to the extent that they were intelligible, were as follows:

1. The Court of Appeal erred in law in accepting fabricated evidence, this being a reference to plastic bags containing Indian hemp said to have been thrown to the ground by Mr Mototabua at the time of his arrest.

2. The Court of Appeal erred in finding that the magistrate correctly accepted the allegedly fabricated evidence when it was his duty to stop the case on Mr Mototabua’s submission of no case to answer.

3. The magistrate erred in law in not explaining the substance of the charge to the accused when he put him to his defence, contrary to s. 211 of the Criminal Procedure Code, Cap 21.
   
4. The Court of Appeal erred in law in stating that the second prosecution witness, Vasenai Mataitoga, gave unequivocal evidence about his disposal of the drugs. According to Mr Mototabua, she gave conflicting evidence in court about the date she gave her statement to the police and how he had thrown the plastic bags said to have contained Indian hemp to the ground.
   
5. The Court of Appeal erred in dismissing the appeal when nothing was said about the requirement to establish Mr Mototabua’s guilt beyond reasonable doubt.
   
6. The President of the Court was one of the judges who signed the judgment when he was not one of the three judges who heard the appeal.
   

The facts of the case

[14] Winter J in the High Court set out the factual background in passage which was reproduced in the judgment of the Court of Appeal. It is convenient, for completeness, to reproduce that passage here:

"The brief particulars of the offence are that on the 5th of February 2003 at Korovou an off duty police constable saw the appellant inside a carrier van and became suspicious as he saw the person the appellant was talking to holding a two dollar note as though he was trying to buy something from the appellant.

This witness knew the appellant by reputation as a well-known marijuana dealer in Korovou. Based on this information he formed a reasonable suspicion that the offence of drug dealing was being committed and he walked straight up to the van. He saw the appellant put something into his trousers pocket. He asked the appellant to accompany him to the police station. In the middle of that request the appellant quickly jumped out of the van and ran off. The off duty police constable gave chase.

During that chase an independent civilian witness saw the appellant throw something to the ground and this witness pointed the packets out to the off duty police constable. He picked them up and found two plastic bags containing 12 rolls of Indian hemp and four sachets wrapped in foil.

All this happened very quickly as the constable was keen to continue his pursuit of the fast escaping appellant.

Assisted by the van driver the appellant was eventually arrested. He was abusive and struggled as he did not want to be arrested. However, with the assistance of another policeman the appellant was taken by the van to the police station and handed over to the desk office. That officer also received the drug exhibits. Subsequent interviews were largely exculpatory. The appellant refused to sign charge sheets. He was charged and processed.

The plastic packets he threw away during the course of his pursuit were examined by the Government Analyst. He confirmed that there were 12 rolls and four sachets contained inside the plastic weighing 11.5 g. The material was positively identified as Indian hemp."

Whether special leave should be granted

[15] As Mr Mototabua recognized in his submission, special leave to appeal in a criminal matter will not be granted unless a question of general legal importance is involved or there is a substantial question of principle affecting the administration of criminal justice or substantial and grave injustice could otherwise occur: Supreme Court Act s 7(2).

[16] We have a number of concerns about the inefficiencies of the judicial process disclosed in the proceedings before the Magistrates Court and the rather painfully protracted processes in the High Court before the matter came on for hearing and judgment. Trials in the Magistrates Court should, generally speaking, be continuous unless an adjournment is mandated by the interests of justice. There seems to have been no justification for the first adjournment of the hearing in the Magistrates Court half way through the first day. Certainly none was stated beyond the proposition that it was a "good time for an adjournment." The result was a delay of a month before the hearing could resume. There are far too many examples, in the judicial process in Fiji of unacceptable delays in the progress of matters through trial and appellate courts, even allowing for the substantial disruptions to civil society which have been caused by the events of 2000 and 2006.

[17] The correctness of the Court of Appeal’s decision that Mr Mototabua’s arrest was unlawful was not challenged in this Court. There was no error disclosed in the Court of Appeal’s finding that the admissibility of the physical evidence seized at the time of Mr Mototabua’s arrest was not affected by the lack of authority in the off duty special constable to effect the arrest. The evidence was that he was seen by an independent witness throwing the bags on to the ground. The bags were recovered by the off duty special constable. They were not seized from Mr Mototabua. The evidence which was critical to the charge was not therefore dependent in any way upon his arrest. Challenges to the reliability of the independent witness and unsupported assertions that the relevant evidence was fabricated, do not support the grant of special leave.

[18] We would add one further comment about the magistrate’s reasons for decision. In his judgment the magistrate appears to have found as a fact that:

"The accused is a well known marijuana dealer in Korovou."

This was a reference to the evidence of the special constable that:

"Eliki is a well known dealer in my district."

This explains why the special constable suspected that Mr Mototabua was in the process of selling drugs when he saw him at Korovou on 5 February 2003. However, it is not evidence which ought to have been given. It was irrelevant to the guilt or innocence of Mr Mototabua. It was found as a fact by the magistrate. It was a fact which he did not have to find in determining guilt or innocence. It was purely prejudicial. However, given the clear evidence of the independent civilian witness and the physical evidence recovered from the scene of the offence, it cannot be said that there was any substantial miscarriage of justice flowing from it. Nevertheless, the reception of this evidence and the magistrate’s finding based on it, does throw up the need for ongoing judicial training in the areas of criminal law and evidence.

[19] For the preceding reasons, the petition was 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 Prosecution, Suva for the Respondent