State v Miller [2011] FJSC 7; CAV0008.2009 (15 April 2011)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

Criminal Appeal No. CAV0008/2009
[Court of Appeal AAU0043.05]

BETWEEN:

THE STATE
Petitioner

AND:

1. JOHN MILLER
2. PITA TOKONIYAROI
3. SAMUELA ROGOIVALU
Respondents

Coram: The Hon Mr Justice Anthony Gates
President of the Supreme Court

The Hon Mr Justice William Marshall Justice of Appeal of the Supreme Court

The Hon Mr Justice Priyantha Fernando
Justice of Appeal of the Supreme Court

Hearing: Thursday 14th October 2010

Counsel: Mr A. Rayawa for the Petitioner
Mr S. Sharma for the 1st Respondent
2nd Respondent in Person
Ms B. Malimali for the 3rd Respondent

Date of Judgment: 15th April 2011

JUDGMENT OF THE COURT

[1] On 26th July 2009 the State had filed a petition for special leave to appeal the judgment of the Court of Appeal. Ground 8.1 of that petition stated that "the appellate proceedings are a nullity on the ground that the judgment delivered was not the judgment of a duly constituted court."

[2] Leave was granted for the State to argue this ground broken down into two more specific questions. They were:

(i) Was the oral announcement of the Court of Appeal's order for re-trial pronounced on 3rd April 2009 a sufficient judgment in itself? and

(ii) Did the later "judgment", written and signed by one of the judges alone, issued on 24th June 2009, constitute reasons that went to make up the judgment of the court?

[3] The three appellants were charged on the information of the Director of Public Prosecutions with murder contrary to section 199 of the Penal Code Cap 17. They were also jointly charged with robbery with violence contrary to section 293(1)(a) of the Penal Code.

[4] On 29th April 2005 in the Lautoka High Court all three appellants were found guilty as charged of murder and of robbery with violence. For the murder each was sentenced to life imprisonment and to a minimum term of 12 years which was to run concurrently with any other sentence they might then be serving. For the robbery, the judge imposed a concurrent term of 4 years imprisonment on each Accused.

[5] Mr Justice Byrne explained in the reasons what had transpired concerning the judgment and we set out what his lordship said by way of explanation:

"Introduction

1. This appeal was heard on the 3rd of April 2009 and after the Court heard submissions from Counsel and the unrepresented appellant it announced that the appeal would be upheld and a re-trial of all the appellants be heard in Lautoka before another Judge.
   
2. The Court directed that the appeal be called over at 2.15 pm on the 15th of April 2009 and a direction would then be given that the re-trial was to commence no later than one month after the 15th of April 2009. The appellants were remanded in custody and the court stated that it would hear applications for bail on the 15th of April 2009.
   
3. That date was overtaken by the abrogation of the Constitution of Fiji by His Excellency the President on the 10th of April 2009, one of the consequences of which was that the appointments of all members of the Judiciary were revoked. One of those Judges whose appointment was revoked was the Honourable Mr Justice Mataitoga.
   
4. Byrne, J.A the presiding Judge in the appeal was re-appointed on the 25th of May 2009. The judgment which he now has written incorporates the reasons which he gave on behalf of the Court on the 3rd of April but because of the important question of law and practice involved in the appeal, the judgment contains references to authorities some of which were not available to the court on the hearing of the appeal."
   

[6] It is clear that case authorities decided post the decision or order cannot be added onto the judgment by way of reasons for the decision. A judgment or order cannot be perfected in such a way. In the same way a Summing Up delivered in open court in the course of a trial, cannot be altered subsequently so far as content is concerned. Punctuation, spelling and minor typographical error may be excepted. But mistakes of grammar or expression must remain on the record, since those were the directions actually given to the assessors when the summing up, already committed to writing, was read out.

[7] The reasons were given at a time when the other judge on the panel no longer held the warrant of judge. Leaving aside an instance where the judgment is delivered in two parts, first order then reasons, at the time of the issuance of these reasons only one of the two judges on the hearing panel remained a judge.

[8] The Court of Appeal Act provides through section 6:

" Number of judges

6. (1) For the purpose of hearing and determining appeals the Court of Appeal shall be summoned in accordance with directions given by the President and the Court shall be duly constituted if it consists of not less than three judges, but provision may be made by rules of court for the hearing and determining of specified classes of cases by two judges of the Court of Appeal.

(Amended by 37 of 1965, s. 5.)

(2) Notwithstanding the provisions of subsection (1), the Court of Appeal shall be duly constituted if it consists of not less than two judges in any case or cases where the President is of opinion that it is impracticable to summon a Court of three judges.

(3) In all appeals and applications brought before the Court of Appeal the determination of any question shall be according to the opinion of the majority. If on the hearing of an appeal or application the Court of Appeal is equally divided the appeal or application as the case may be shall be dismissed:

Provided that, if the President so directs, the appeal or application shall, on the request of the appellant or applicant, made within thirty days of the dismissal of the appeal or application or within such further period as the President may, at any time, allow, be re-argued and determined by three judges (Proviso inserted by 37 of 1965, s. 5.)

(4) A judge of the Court of Appeal may sit as a judge upon the re-hearing of an appeal or application pursuant to the provisions of the proviso to subsection (3) notwithstanding that he was a member of the Court which was equally divided.

(Inserted by 37 of 1965, s. 5.) "

[9] Normally three judges hear an appeal to the Court of Appeal [section 6(1)]. However Rules of Court may provide that certain appeals can be heard by two judges. New Rules were made by the President of the Court on 30th November 1999 [Legal Notice No. 150 pp.305-314]. These Rules permitted less than three judges to hear certain sentence appeals [section 21(1)(e)], certain appeals to the Full Court from a single judge such as leave to appeal or extension of time, and cases involving the cancellation of bail [section 35(3) and (4)]. This provision was brought in by Rule 13A.

[10] In addition section 6(2) provides that where the President is of opinion that it is impracticable to summon a Court of three judges, two may be summoned.

[11] Mr Justice Byrne was not made Acting President of the Court of Appeal till 27th October 2009. At the time of the summoning of the Court to hear this case earlier in the year there was no President or Acting President of the Court of Appeal. Therefore section 6(2) could not apply in regard to the composition of the court.

[12] Nor could the composition of the Court be reduced by virtue of Rule 13A. A full appeal against conviction would have to be determined by a Court composed of three judges.

[13] We conclude therefore that the Court of Appeal was not properly constituted for the hearing of this appeal.

[14] Section 35(5) provides:

"(5) A reserved judgment of the Court may be delivered by a single judge of the Court if any or all judges who heard the appeal are absent.".

[15] But a reserved judgment, though it may be delivered or handed down by a single judge must still be the judgment or judgments of all of the judges who heard the appeal. In this case it is the judgment, consisting of reasons for the oral orders, of only one of the panel who heard the appeal. As such it is a nullity and is to be disregarded.

[16] Because we find the published reasons to be a nullity and the hearing court wrongly constituted, the appellate orders must be quashed and the matter returned to the Court of Appeal for a re-hearing before three judges.

[17] Before leaving the matter, there is the issue of whether the oral orders constituted a sufficient judgment and whether the practice (albeit rare) of issuing first an oral order, and later a written judgment with reasons, is a lawful or good practice in discharge of the appellate function of the Court.

The Statutory Provisions

[18] Before traversing the specific provisions for the form or contents of a judgment in criminal proceedings, we commence with a consideration of the purpose of appellate judgments. It is trite that they may confirm, vary or reverse the decision of the lower court. But in doing so, and in order to remove difficulty of understanding, or to set out an authoritative interpretation of the law, substantive, evidential or procedural, any orders are ideally accompanied by succinct discussion, reasoning, illustration, guidance and direction on the law. Oral orders alone are unlikely to serve such purpose, and may as a matter of law be insufficient.

[19] In addition orders of the Court of Appeal (or of any court subject to appeal) without accompanying reasons, would make it impossible for a potential petitioner to frame grounds in a petition so as to make further appeal. In this case it was to the final court of appeal for Fiji, namely the Supreme Court. Such a state of affairs would prove unsatisfactory and unworkable. The modern trend in decision making is towards the requirement for the giving of reasons. It is a part of the fair trial concept.

[20] In relation to criminal appeals the Court of Appeal Act provides:

"s.36. (1) In an appeal under this Part the Court shall ordinarily give only one judgment, which may be given by the senior member of the Court present at the hearing of the appeal or by such other judge present at the hearing of the appeal as he may direct:

Provided that

(a) if any judge dissents from the judgment of the Court it shall not be obligatory on him to sign the same; and

(b) separate judgments shall be given if the Court is of the opinion that it is convenient that there should be separate judgments.

(2) The judgment of the Court or of any judge present at the hearing of the appeal shall be delivered in open Court either at the hearing of the appeal or at any subsequent time of which notice shall be given by the Registrar to the parties to the appeal.

(3) The judgment of the Court or of any judge present at the hearing of the appeal may be read in open Court by any judge, whether present at the hearing of that appeal or not, or by the Registrar. (Inserted by 44 of 1959, s. 7.)"

[21] Section 36(1) envisages that there may be more than one judgment. It is implicit in that possibility that there will be reasons given for adopting a different approach from other members of the court and that they will be set out in a separate judgment. If all members of the panel agree they will sign the sole or joint judgment. The section does not refer to orders or orders alone.
[22] Whilst section 36(2) might suggest that a judgment could be delivered at the hearing itself, this could mean a short judgment on an obvious or non-complex matter where a written judgment could be delivered swiftly on the same day. But this circumstance is likely to be unusual for an appellate matter.

[23] Section 36(3) provides however that a judgment may be read. It goes without saying a judgment must be committed to writing in order that it can be read.

[24] The Criminal Part of the Act, Part IV, follows Part III "Appeals in Civil Cases". To some extent the general provisions have some bearing on and can be read with the later Part. For section 18 provides:

" 18. (1) The decision of the Court of Appeal in any proceedings under this Part or of any judge taking part in the determination of the proceedings may be delivered by or in the presence of a court constituted differently from that which heard the proceedings, and may, at the discretion of the presiding judge, be delivered by a judge who was not present at the hearing of the proceedings, or by the Registrar, in the presence of the Court as for the time being constituted.

(2) It shall be lawful for any decision to be delivered by the effect thereof being pronounced, in such terms as the Court or judge shall think appropriate provided that the full terms of the decision shall have been reduced to writing and that a copy thereof is made available to the parties.

(Substituted by 37 of 1965, s. 11.)

(Emphasis added)

[25] A truncated announcement of the result and reasons could be delivered by another judge, but only if the decision "shall have been reduced to writing and that a copy thereof is made available to the parties." Again the scheme of the Act is to insist on a prior written and reasoned judgment.

[26] We turn to examine the statutory requirements for judgment in the Magistrates Court and High Court.

[27] In the Magistrates Court it is clear a judgment must be committed to writing. Section 141 provides:

"(1) The judgment in every trial in any criminal case shall be pronounced (or the substance of such judgment shall be explained) in open court either immediately after the termination of the trial, or at some subsequent time of which notice shall be given to the parties and their lawyers (if any).

(2) The whole judgment shall be read out by the presiding judge or magistrate if requested by the prosecution or the defence."

[28] Contents of judgment is provided for by section 142 in which it is manifest that the judgment whether by judge or magistrate must be in writing and must contain reasons:

"Section 142. (1) Subject to sub-section (2), every such judgment shall, except as otherwise expressly provided by this Decree, be written by the judge or magistrate in English, and shall contain

(a) the point or points for determination;

(b) The decision and the reasons for the decision; and

(c) shall be dated and signed by the judge or magistrate in open court at the time of pronouncing it."

Subsection (2) deals with the situation where the accused person has pleaded guilty and been convicted.

[29] In compliance with section 144 copies of the judgment are to be made available on the application of the Accused and provided as soon as practicable. A good practice in the High Court, as a matter of access to justice and transparency, has been to hand down in court copies of Rulings, Judgments, Summings Up and sentencing remarks to each of the parties. There should be no opportunity given for suspicion of there having been an improvement of the written version subsequent to its being read out in court. Section 144 is bolstered by section 284 which also requires a person affected by any judgment or order to be given a copy on application.

[30] It is clear the judge's judgment at the close of a criminal trial in non-conformity of the assessor's opinions must be written down with reasons given [s.237(3) and (4)]. However a short written judgment, even where conforming with the assessors opinions is a sound practice. It was recommended in Edward Sheikh Faruk Ali v Reginam [1974] 20 Fiji LR 35 at p.38F where Haslam JA said:

"We would express the view, however, that it would be regrettable if in practice it came to be regarded as a matter of course that a trial Judge who agreed with the majority opinion of the assessors should not write a judgment. In the interests of justice, we venture to hope that in many such cases the trial Judge will elect to assist us with the benefit of a reasoned judgment."

All of the provisions of the Criminal Procedure Decree in this regard follow similar wordings in the former Criminal Procedure Code [see 299(2) 154, 155].

[31] Clearly too with the onerous demands placed on judicial officers by the Sentencing and Penalties Decree 2009 the judgment including discussion of similar cases within the range for the offence, and aspects of aggravating circumstances and mitigating circumstances, should be committed to writing also.

[32] The High Court Act Cap 13 makes it mandatory for every decision to be reduced to writing. Section 27 states:

"It shall be lawful for any decision of the Court or a judge to be delivered by the effect thereof being pronounced, in Court or in chambers, as the case may be, provided that the full terms of such decision shall have been reduced to writing and that a copy thereof is made available to the parties."

[33] This was borne out by the majority of the court in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. At p.279G McHugh JA said:

" But when the decision constitutes what is in fact or in substance a final order, the case must be exceptional for a judge not to have a duty to state reasons. "

[34] At the appellate stage, reasons are vital to the understanding of the decision. This is not simply a matter dealing with a lesser fact, an evidential ruling, or a lesser interlocutory issue. The case has already been decided and is now on appeal. Whatever the appeal court decides, whether to confirm or reverse or to vary, it must state why. This requires the giving of written reasons, and there is no sound reason for giving oral orders followed by written reasons at this level.

[35] Since the reasons were a nullity for the reasons we have given the remaining Court of Appeal decision comprises merely an oral ruling, which is not contained in the record to this court. The orders are in doubt and for the purpose of forming a proper judgment are insufficient.

[36] The orders of this court therefore are:

(i) Decision of the court below is quashed together with the order for a retrial.

(ii) The appeal before the Court of Appeal is to be re-heard before a different panel and comprising three judges.

Hon Justice Anthony Gates
President of the Supreme Court

Hon Justice William Marshall
Justice of Appeal of the Supreme Court

Hon Justice Priyantha Fernando
Justice of Appeal of the Supreme Court

Solicitors:

Office of the Director of Public Prosecutions, Suva for the Petitioner
Legal Aid Commission, Suva for the 1st Respondent
2nd Respondent in Person
Pacific Chambers, Suva for the 3rd Respondent