Tirikula v State [2009] FJSC 4; CAV0007.2008S (12 February 2009)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0007 OF 2008S
(Fiji Court of Appeal No. AAU0012 of 2007S)

BETWEEN:

PENIASI TIRIKULA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice David Ipp, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court

Hearing: Monday, 9th February 2009, Suva
Wednesday, 11th February 2009, Suva

Counsel: Petitioner in Person
Ms A. Driu
Mr W. Kurisaqila] for the Respondent

Date of Judgment: Thursday, 12th February 2009, Suva

JUDGMENT OF THE COURT

[1] The petitioner was sentenced in the Suva Magistrates Court on 3 August 2005 to concurrent to terms of 12 months imprisonment for the offences of criminal trespass and possession of house breaking implements committed on 2 August 2005. He was sentenced on 31 August 2005 to concurrent terms of imprisonment of 3 years and 4 years for house breaking and larceny on 17 December 2002 and 14 August 2003. which were cumulative on the sentences imposed on 3 August. The petitioner was then sentenced on 15 September 2005 to 2 consecutive terms of 9 months each for breach of his bail conditions cumulative on his previous sentences. His effective sentence at this point totalled 7 years and 3 months.

[2] He appealed to the High Court and on 15 December 2006 his appeal was allowed in part by Shameem J. She ordered that the sentences for breach of his bail conditions be served concurrently, but his appeal was otherwise dismissed. His effective sentences at this point totalled 5 years and 9 months.

[3] He then appealed to the Court of Appeal by leave granted by Ward P on 20 February 2007. On 8 April 2008 that Court allowed his appeal in part, ordering that the sentences of 12 months concurrent imposed on 3 August 2005, be made concurrent with those imposed on 31 August. His effective sentence at this point was 4 years and 9 months.

[4] On 13 May 2008 he applied for special leave to appeal to this Court. The petition challenges his convictions and sentences for breach of his bail conditions. The petitioner has submitted that he was never tried for these offences, and was given no opportunity to show cause. He also submits that he was never informed, in a language that he could understand, of his obligation to surrender to his bail.

[5] These points were not taken in the High Court or the Court of Appeal, and the necessary evidence from the petitioner, and the Magistrate’s reasons for convicting the petitioner, and imposing the sentences he did, are not in the record.

[6] The petitioner’s next point was that the convictions for breach of his bail conditions were wrong in law because, after being convicted and sentenced for the substantive offences, the purpose of these bail offences, which was to ensure that the accused surrendered to his bail, had already been achieved. There is nothing in this point. The purpose of the offence is indeed to ensure that accused persons on conditional liberty surrender to their bail at the time and place nominated, but the offence had been committed when the petitioner failed to do this some considerable time before. This point must also be rejected.

[7] The petitioner then submitted that his sentences for the bail offences should have been made concurrent with his sentences with the principal offences. This is clearly wrong. An accused on conditional liberty would have no incentive to surrender to his bail if he knew that any sentence for breach of his bail conditions would be concurrent with his sentence for the principal offence. The offences are different, they are committed at different times, and a sentence for breach of bail conditions must be made consecutive to reflect the objective criminality of the offence, and the need for both the specific and general deterrence.

[8] The petitioner’s last point is that his cash bail of $500 was forfeited and his sentence of imprisonment for the same offence subjected him to double jeopardy. There is no substance in this point. The forfeiture of his cash bail was essentially a civil remedy for the breach of his bail bond, cumulative on any punishment properly imposed under the criminal law. The Magistrate knew about the forfeiture, and should have taken it into account in fixing the sentences he did.

[9] If this was all, the petition would have to be dismissed. However it is not all. This matter was adjourned from the last session. When the case was called on the first stay of the current session on 9 February the State was still not ready to proceed. The facts are as follows.

[10] The petition was listed before this court at 3:15 pm on 15th October 2008 during the last session but in breach of directions given by the Acting Chief Justice at the call over on 26 August 2008 the State had not filed any written submissions. When the petition was called on for hearing Ms Driu, appearing on behalf of the State, informed the Court that the State was not ready to proceed because counsel in the DPP’s Office with responsibility for the case had not prepared written submissions, and he was in court on another case.

[11] The petitioner consented to the petition being adjourned to the next session of the Supreme Court, and the Court reserved its decision to the following day.

[12] On 16 October the court published its reasons. It adjourned the case the next session and gave the following directions:

"[2]. Direct that within 60 days the State is to prepare file and serve a Supplementary Record of the Supreme Court containing all available records of the Magistrate’s Court and the High Court relating to the convictions on charges under s.26 of the Bail Act that are not part of the existing Record. If no such records are available the State is to file and serve a letter explaining the searches it has conducted and proposing what further steps should be taken in the petition.

[3] Within a further 60 days the petitioner is to file and serve additional grounds of appeal and submissions relating to any challenge he makes to the said convictions.

[4] The petitioner is released on bail immediately, subject to the conditions set out in the document attached to this order."

[13] The petition was in the cases listed for the current session of the Court that was called over before the Chief Justice on 18 December 2008 and again on 15 January 2009 when the petitioner was present and the State were represented.

[14] Directions were given on 18 December for the filing of written submissions by the State by 14 January. On 15 January the case was fixed for hearing on 9 February, and the State was directed to file written submissions by 23 January.

[15] At 9:30am on 9 February the petitioner appeared to answer his bail and Ms Driu appeared for the State. She informed the court that the officer "handling" the matter was appearing for the State on the first day of a trial in the High Court at Lautoka, and he had the file with him. The State was unable to proceed, and she sought an adjournment.

[16] If the State had been the petitioner the petition would have been summarily dismissed for want of prosecution. There is no equivalent remedy for a petitioner confronted with a dilatory respondent.

[17] In this case the procedural defaults of the State has caused the petitioner serious prejudice.

[18] The petitioner claimed in his submissions of 26 August 2008 (paras B1 and B2) that there no trial on the charge of breaching bail and that he was not given an opportunity to show reasonable cause. This point could not be supported on the record as printed for the October 2008 session of the court. The record in number 2868/02 in the Magistrate’s Court (p 31) for 15 September 2005 when the petitioner was in custody, reads:

"For prosecution – Insp Suraj

Accused – No appearance

Court:

Issue production order

Ruling of bail

Adjourned – 22/9/05 – Mention."

[19] A warrant for the petitioner’s commitment dated 22/9/2005 for breach of bail for a term of 9 months imprisonment consecutive to his current prison term appears in that record (p19). A similar warrant appears in the other relevant record in the Magistrate’s Court (1808/2003) (p3). The same record reveals (p19) under date 31/8/2005:

"NB

All his bail recognizance, shall be reviewed pursuant to Section

30(2) of Bail Act – 26 of 2002"

[20] On 13 September 2005 the petitioner appealed to the High Court from the sentences imposed on 3 and 31 August, i.e. prior to his sentences for breach of bail (record 2868/2002 pp 1- 3, 1808 of 2003 pp 1 – 3, 1454 of 2005 pp 1-3). The record does not include any petition of appeal against the sentences imposed for breach of bail on 22/9/2005.

[21] The record of the High Court (p38) for 10 November 2006 states:

"Ms Tabete - for the State

Appellant in Person

H Tabete: Have only just received Court hearing appeal on forfeiture of bail

– no bail ruling

Explained to appellant

Appellant – ... On 22nd September 2005 I appeared before Mr Nadakuitavuki

and he forfeited my bail

Court: Will get a copy of ruling. Why appealing now?

Appellant: It was within time. Registry informed me they received no

application

Court: 29th November for hearing. Officer in charge Registry to write to

officer in charge Magistrates Court to get a copy of ruling on

forfeiture of bail."

[22] The record for 29 November (p39) states:

H Tabete – For the State

Appellant in person

H Tabete: Only first received a copy of the bail decision

Court: Adjourned to 12th December, 2006 at 9:30 am...for hearing"

[23] The appeal was argued on 12 December and judgment was delivered on 15 December.

[24] The record as printed does not include any other information relating to the breach of bail hearing in the Magistrate’s Court on 22 September 2005, or the Magistrate’s decision.

[25] The Court was entitled to approach the petitioner’s claims about what did and did not happen on 22 September 2005 with caution, but his claim that he had been denied a hearing could not be ignored. This led the Court on 16 October 2008 to give the direction that the State file and serve a supplementary record containing material relevant to the breach of the bail charges which was not included in the existing record.

[26] The direction was not complied with and still has not been complied with. The material in question may have supported or destroyed the petitioner’s claims about those sentences. If the supplementary record had supported the petitioner’s claims his petition would almost certainly have been allowed and the sentences quashed. The petitioner has been prejudiced by the State’s delays and by its failure to comply with the directions of the Court. I would remove this as unnecessary.

[27] On 16 October 2008 the Director of Public Prosecutions appeared personally before this Court, as then constituted, to apologise for the procedural defaults of his Office, and to assure the Court that his Office took such directions seriously, and that this situation should not occur in future. Without doubting the sincerity of the Director, of the genuineness of his expressions of intention made to the Court on that occasion regrettably there has been a lamentable failure on his part to either adopt or enforce appropriate procedures and controls to ensure that his cases in this Court are ready to proceed on the date fixed.

[28] This Court, as presently constituted, will not be sitting again as our current commissions, which predate May 2006, expire within a few weeks. If the petition was again adjourned the petitioner would remain on bail, unable to get on with the rest of his life, and in jeopardy of being returned to prison on some uncertain date in the future, to serve the balance of his sentence.

[29] If the additional material had destroyed the petitioner’s case he would have been returned to prison to serve the balance of his sentence but, with his remissions, he would be released within a few months, and able to get on with his life.

[30] In our judgment the prejudice to the petitioner, which has arisen from events outside his control, and within the control of the State, since the judgment of the Court of Appeal is such as to occasion him "substantial and grave injustice" within s.7 (2) of the Supreme Court Act, and thus attracts the power of this Court to grant special leave.

[31] The failure of the State in comply with the directions of the Chief Justice prior to two sessions of this Court constitute a breach of the petitioner’s rights under s.29(3) of the Constitution which provides:

"Every person charged with an offence... has the right to have the case determined within a reasonable time."

[32] The case against the petitioner for breach of his bail will not be finally determined until his normal avenues of appeal have been exhausted. The right conferred by s.26 (3) extends to appellate proceedings at any level, and this is put beyond all possible doubt by s.21 (1) (a) of the Constitution which binds the judicial branch of government at all levels.

[33] The petitioner is entitled to appropriate relief from this Court for the actual and threatened breach of his constitutional right to have his case determined within a reasonable time.

[34] The Court will therefore grant special leave, allow the appeal and reduce the petitioner’s sentences for breach of bail so as to make them expire, after remissions, on 16 October 2008. At the conclusion of oral argument on 11 February the Court ordered that the petitioner be discharged from his bail, and released on unconditional liberty. That order is confirmed.

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice David Ipp
Judge of the Supreme Court

Hon Justice Ronald Sackville
Judge of the Supreme Court

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