Murti v State [2009] FJSC 5; CAV0016.2008S (12 February 2009)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0016 OF 2008S
(Fiji Court of Appeal No. AAU0034 of 2008S)

BETWEEN:

SEGRAN MURTI
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

Counsel: Petitioner in Person
Mr J. Naigulevu for the Respondent

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

JUDGMENT OF THE COURT

1. This is a petition for special leave to appeal from a decision of Hickie JA sitting as a single judge of the Court of Appeal.
   
2. The petitioner was found guilty by three assessors of robbery with violence and unlawful use of a motor vehicle. He was sentenced by Goundar J to 10 years imprisonment for the offence of robbery with violence and four months imprisonment for the unlawful use of a motor vehicle, the sentences to be served concurrently. The petitioner appealed to the Court of Appeal against his conviction and sentence. Hickie JA, sitting alone, dismissed the appeal. The petitioner now petitions for special leave to appeal against conviction.
   
3. The petitioner relies on several grounds of appeal. In summary they are as follows:
   
   1. Goundar J was appointed after December 2006 and his appointment was not in accordance with the constitution.
      
   2. The petitioner elected to be tried in the Magistrate’s Court, but was tried in the High Court; Goundar J should not have heard the matter.
      
   100. The criminal proceedings against the petitioner were not brought within a reasonable time.
        
   4. Goundar J should have arranged for the petitioner to be legally represented at the trial; in consequence the petitioner did not receive a fair trial.
      
   5. Goundar J did not explain to the petitioner the consequences of him giving unsworn in evidence
      
   6. After his arrest the petitioner was kept in custody for more than 60 hours notwithstanding that, under s 27(3) (b) of the Constitution, he had the right to be brought before a court no later than 48 hours after the time of arrest.
      
   7. Goundar J erred in failing to exclude the appellant’s confession.
      
   8. Goundar J failed to direct the assessors properly in regard to the fact that none of the witnesses at the scene identified him and that his confession was unlawfully obtained.
      
   9. Goundar J did not give due credit to the evidence of a defence witness who testified that the petitioner was assaulted by the police at the police station during his interrogation.
      
4. The argument based on constitutionality of the appointment of the trial judge fails. Importantly, the petitioner did not raise this issue at the trial or on appeal to the Court of Appeal. Unlike the situation in Forge v Australian Securities And Investments Commission [2006] HCA 44; (2006) 228 CLR 45, the circumstances surrounding Goundar J’s appointment are likely to be relevant to the petitioner’s argument. The validity of the appointment may well depend on the relevant circumstances existing at the time of the appointment (Forge at [7], 57) and whether those circumstances had a bearing on the decision on the part of the government to make the appointment (Forge at [9], 58).
   
5. Had the argument been raised, evidence could have been adduced by the State that might have prevented the argument from succeeding.
   
6. This is sufficient to preclude the petitioner from raising the argument at this late stage: Suttor v Gundowda Pty Ltd [1958] HCA 35; (1950) 81 CLR 418 at 438; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 8.
   
7. It is generally accepted that the acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office (but compare Kirby J in Forge at [168], 114 to [175], and 115). As McHugh JA said in GJ Coles v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 525 "it matters not that his appointment to the office was defective or has expired or in some cases even that he is a usurper". The de facto doctrine has been held to apply to judicial officers: see GJ Coles & Co Ltd v Retail Trade Industrial Tribunal at 526 and cases cited at 526 – 527, in particular Re Aldridge (1893) 15 NZLR 361. As McHugh JA points out at 526 the rule can be traced to the 15th century (Abbot of Fountaine’s Case (YB 9 H VI 33)).
   
8. In Forge the High Court of Australia permitted an argument concerning the validity of the appointment of an acting judge of the New South Wales Supreme Court to be put, notwithstanding that that argument had not been raised in the trial court or in the New South Wales Court of Appeal. According to Kirby J it was sufficient that the point was raised in proceedings that were "still alive before the Australian Judicature" ([166], 113). It is not necessary to decide whether this Court would adopt the same approach. For the reasons given based on the principles in Suttor v Gundowda Pty Ltd and Coulton v Holcombe, the argument cannot now be put for the first time in this Court.
   
9. There is no substance in the petitioner’s complaint that he should have been tried in the Magistrate’s Court.
   
10. Firstly, the petitioner had no right to elect to be tried in the Magistrate’s Court. The relevant legislation is s.3 of the Electable Offences Decree 1988 which provides:
    

"No person charged with an offence under the Penal Code shall be entitled to elect to be tried before the High Court unless the offence with which he has been charged in all Electable Offence."

This section entitles a person to elect to be tried in the High Court, not in the Magistrate’s Court.

11. Secondly, although in interlocutory hearings on 11 February and 7 March 2005 the petitioner and his counsel indicated that the petitioner wished to be tried in the Magistrate’s Court, counsel for the State elected to transfer this matter to the High Court (and the State was entitled to make that election). Thereafter, in interlocutory hearings before the trial, the petitioner did not contend that the matter should be heard in the Magistrate’s Court.
    
12. Thirdly, at the inception of the trial before Goundar J in the High Court, the petitioner stated that he was ready for the trial to proceed. At no point during the trial and not even in the Court of Appeal did the petitioner contend that he should have been tried in the Magistrate’s Court. It is now too late for the petitioner to advance this argument.
    
13. In any event, the fact that the petitioner was tried in the High Court did not give rise to any injustice.
    
14. In support of his argument that the proceedings were not brought within a reasonable time, the petitioner submitted that, by reason of the State’s delay of some three and a half years, he was not able to call a significant witness. He said that the witness would have testified that the petitioner had been employed by him on a contract basis to work at the victim’s premises and he required the petitioner to leave that work, either shortly before or immediately after the commission of this offence, and to work elsewhere. The petitioner submitted that this evidence would have established that the fact that he ceased working at the victim’s premises at the time in question did not give rise to any suspicious inferences.
    
15. This argument is not persuasive. Firstly, during the trial the petitioner gave unsworn evidence in which he made no mention of the fact that he was required by the witness to stop working at the victim’s premises. Secondly, the petitioner did not advance this explanation for his conduct when putting his argument on appeal to Hickie JA. Thirdly, the victim testified that the petitioner had worked at his home doing renovations but on the night of the offence, and the day after, the petitioner did not come to the house. The petitioner did not directly challenge this testimony when cross-examining him.
    
16. The petitioner was legally represented during early interlocutory proceedings prior to the trial. He was also represented shortly before the trial when he appeared in response to a bench warrant and on two occasions thereafter in connection with bail applications. On 17 January 2008 the trial was adjourned to 31 January. On that day the trial was adjourned to 11 February. On 11 February the trial commenced with a voir dire and the petitioner is recorded as being "ready for trial within a trial." The voir dire continued until 16 February 2008 when Goundar J ruled that the petitioner’s interviews with the police were admissible.
    
17. The petitioner thereupon sought an adjournment to engage a lawyer. The Judge’s ruling in this regard was as follows:
    

"The accused has been given ample opportunity to engage a counsel. We are in the middle of a trial. The complainant has arrived from New Zealand and is due to return on 17 February 2008. I have noticed that the accused was able to competently cross-examine the witness in the trial within a trial. I will continue to assist him with his rights and advise him of the trial procedure. Adjournment is refused."

18. Hickie JA, on appeal, accepted the submission that the petitioner had to show how he was disadvantaged in not having a lawyer at the trial and he had failed to do so.
    
19. As was pointed out in Ledua v State [2008] FJSC 31, it is well established that the Constitution does not give an absolute right, in every case, to be given the services of a legal practitioner, paid for by the State; nor an absolute right to a lawyer of one’s choosing.
    
20. We are not persuaded, in the circumstances described, that the trial Judge erred in refusing to adjourn the trial to enable the petitioner to attempt to obtain legal representation. Nor are we persuaded that Hickie JA erred in concluding that the absence of a legal representative did not cause the petitioner material prejudice.
    
21. As regards the argument that the consequences of not giving sworn evidence were not explained to him, the record reveals that Goundar J explained the following to the petitioner:
    
    1. "Right to remain silent
       
    2. Right to give unsworn evidence (not the subject of cross-examination)
       
    3. Right to give sworn evidence."
       

The record reveals further that the petitioner indicated that he was ready to give unsworn evidence.

22. The petitioner did not raise this argument in his appeal to Hickie JA. It is also not a ground in his petition. It was raised before this court apparently as an after- thought, in the course of the petitioner’s written submissions.
    
23. Accordingly, the argument must be rejected.
    
24. The argument based on the petitioner’s contention that he was in custody for 60 hours prior to giving his statement to the police cannot succeed. The voluntariness of his confession was dealt with in a voir dire at the trial and Goundar J found against the petitioner in this regard. His Lordship’s decision in this respect was upheld by Hickie JA on appeal and Hickie JA has not been shown to be wrong. Thus, even if the petitioner was in custody for the period he asserts (and this has not been proved), this did not affect the fairness of the trial.
    
25. The argument that Goundar J should have excluded the petitioner’s confession was rejected by Hickie JA. His Lordship gave detailed reasons for his decision and, as I have stated, these have not been shown to be wrong.
    
26. The petitioner’s complaints about the identification evidence are irrelevant as identification was not an issue at the trial.
    
27. The other grounds on which the petitioner relies involve, essentially, issues of credibility where the assessors found against the petitioner, as they were entitled to do. No error has been shown on the part of Goundar J in regard to the directions he gave concerning these matters.
    
28. In the circumstances the petition for special leave to appeal must be dismissed.
    

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