Naqau v State [2015] FJSC 11; CAV0006.2014 (20 August 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA
CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. CAV0006 of 2014
[On Appeal from Court of Appeal No. AAU0012 of 2012]

BETWEEN:

SAKIUSA NAQAU
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon. Chief Justice Anthony Gates
President of the Supreme Court
The Hon. Madam Justice Chandra Ekanayake
Judge of the Supreme Court
The Hon Mr. Justice William Calanchini
Judge of the Supreme Court

Counsel: Mr. M. Yunus for the Petitioner
Mr. Y. Prasad for the Respondent

Date of Hearing : Wednesday 5th August 2015
Date of Judgment : Thursday 20th August 2015

JUDGMENT OF THE COURT

Gates P

[1] This petition, as with several others brought before this session of the Supreme Court, is concerned with the interpretation of section 35(2) of the Court of Appeal Act [the Act]. The original section 35 had been expanded by an amending statute, the Court of Appeal (Amendment) Act [No. 13 of 1998].

[2] By the subsection, a single justice of appeal can dismiss a notice of appeal. He or she can do so either upon the filing of the notice or the filing of an application for leave to appeal. The word order would seem to suggest in both instances the dismissal can be ordered upon the papers and without a hearing: Raura v The State Criminal Appeal No. CAV0010.2005S. This particular power has not been exercised in recent years, the Court preferring to grant access to litigants in a hearing and to provide reasoning for any dismissal, approved in Naisua v The State Criminal Appeal No. CAV0010 of 2013.

[3] But if there were a hearing, or even if there were a hearing for an application for enlargement of time within which to appeal, the single judge could refuse the interlocutory application, and then go on, if the established tests were correctly met, to dismiss the appeal itself as being either:

(a) vexatious
(b) frivolous
(c) or since it was bound to fail, because there was no right of appeal,
(d) or no right to seek leave to appeal.

[4] I have broken up the headings which pose separate and different considerations within the subsection which might entitle the single judge to dismiss the entire appeal at this stage. Unfortunately the Act does not so separate. It would seem this has brought about an area of uncertainty, and with it, a crop of unfortunate petitions to this Court.

[5] If dismissed in this way, the appeal could stand dismissed summarily and at an early stage. If merely the interlocutory application is refused, the applicant could renew his or her application before the Full Court. If the filter process had been designed by the legislature to eliminate hopeless appeals this device has unfortunately failed. The applicant who is unsuccessful before the single judge might, and increasingly does, go on to take his application to the Supreme Court.

[6] The appeal point here is whether the single judge was correct in law in concluding his ruling in the following manner:

“[13] The grounds of appeal are not arguable and they cannot possibly succeed. The appeal is frivolous. The application for bail must fail as well.

[14] Leave is refused on all the grounds and the appeal is dismissed under section 35(2) of the Court of Appeal Act.”

[7] The wording of section 35(2) of the Act is as follows:

“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.”

High Court Proceedings

[8] The Petitioner was charged with a single count of rape contrary to section 207(1) and (2) of the Crimes Decree 2009. The specific allegation was that of penetration of the vagina by finger [section 207(2)(b)]. He was found guilty by the unanimous opinions of the assessors, opinions accepted by the learned judge in a concurring and reasoned judgment.

[9] The complainant worked for Guard Force as a security guard. She is married with 5 children. On the evening of 24th June 2010 she came from home with her cousin to Nausori Town. They were sitting down at R.B. Patel’s when they were approached by two men, hitherto unknown to them. They were invited to join them for drinks at the Nausori Club. Four bottles of beer were bought by one of the men from the Club. They sat down near a bamboo tree inside the Club’s compound. After drinking the beer the complainant asked her cousin to go and find a taxi to take them both home. It may have been one o’clock in the morning at that time.

[10] At that point the petitioner came up behind her and said he loved her. The complainant rejected this advance, and said “No.” The petitioner started punching her on her shoulder. After that he dragged her down towards the bamboo tree. She cried out and shouted. She resisted his various attempts to make love. In the process she was punched on the face and suffered injuries and bleeding.

[11] Her clothing was torn, some taken off. He took off his clothes, and he inserted his finger in and out of her vagina.

[12] The cousin returned. He told the Club’s security guard and asked him to call the police. Eventually the police arrived, and the petitioner ran off towards the town. There was a general chase and the complainant was there at the time when he was caught.

[13] It had happened that the cousin had returned to the Club after trying unsuccessfully to obtain a taxi. At first he could not see the complainant. The security guard opened the compound gate, which meanwhile had been locked after he had first left. He went down to the bamboo and heard the complainant calling his name after he called out for her. The petitioner swore at him and told him to go away “or I will kill you.” The complainant came out half dressed, “crying and injured.” She was bleeding from the lips. Her injuries were confirmed in a medical report. The examining doctor noted scratch marks on her face around the right eye and top of the nose. There was a small abrasion on the inner aspect of the upper lips.

[14] The petitioner however made off by climbing the gate and headed towards town. The security guard opened the gate and the complainant, the security guard and the cousin followed after the petitioner. On their way they met up with the police who were answering the emergency call. Soon after they met up with the petitioner under the Rewa Bridge. The description of the clothing in the report was the same as the man found under the bridge. At one point when the police were leading the petitioner back to the police station, he escaped and ran in the direction of the bus stand and Syria Park. He was quickly found lying down on the grass beside the Rewa River.

[15] That they had all drunk together near the Club was not denied by the petitioner when putting his cross-examination to the cousin. The petitioner gave evidence in his own defence. He said:

“All I want to say is that on that particular day I was very drunk. I did not know what happened. I could only recall what happened at the club and after that I have no recollection of what happened afterwards. Only when I woke up the next date I was in the cell.”

[16] The learned judge in his concurring judgment said he accepted the evidence of the victim that she was raped, the penetration had been “without her consent.” She had suffered digital penetration of the vagina. He accepted that her injuries occurred at the same time from the assaults made upon her by the petitioner. There was no live issue on identity. The petitioner was arrested immediately after the incident and after hot pursuit from the crime scene to the place under the Rewa Bridge.

[17] His lordship said of the defence, such as it was:

“Accused took up the defence stating that he was drunk and that he did not know what happened thereafter on that day.

There is no evidence to show that the accused was intoxicated involuntarily. Only available evidence is that the accused consumed alcohol voluntarily. Voluntarily intoxication is no defence for the offence of Rape. Intent is not an element to prove the offence of Rape. However, I disbelieve the accused that he could not recall anything because he got drunk at Nausori Club.”

The Appeal to the Court of Appeal

[18] The petitioner was sentenced by the High Court on 2nd March 2012 to 9 years imprisonment with a non-parole period of 7 years. On 12 November 2012 the petitioner filed his appeal with the Court of Appeal. The appeal was filed more than 7 months late. Appeals to the Court of Appeal have to be filed within 30 days of the date of conviction [section 26(1) of the Act].

[19] The single judge said he had 2 applications before him, leave to appeal against conviction and bail pending appeal. But there was a third matter for consideration, namely whether to enlarge time within which to appeal.

[20] In cases such as this, the need for enlargement of time presents a further hurdle for the petitioner. Though not hide-bound by strict rules in cases involving indigent and incarcerated applicants, the courts have adopted an approach to enlargement applications wherein five factors are traversed so as to maintain a principled approach. They are:

(i) The reason for the failure to file within time.

(ii) The length of the delay.

(iii) Whether there is a ground of merit justifying the appellate court’s consideration.

(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?

(v) If time is enlarged, will the Respondent be unfairly prejudiced?

[21] The enlargement of time consideration has to be considered prior to any other leave, for without the exercise of judicial discretion in favour of allowing enlargement, the appeal has not been filed and is not in being, nor can any leave to appeal be considered.

[22] Here there is unexplained delay of 7 months, a substantial delay, and therefore the court will be looking for both –

(a) a ground of merit justifying the appellate court’s consideration where, as here, the delay is substantial, and

(b) a ground of appeal that will probably succeed.

The Decision of the Single Judge

[23] This is the decision which is challenged in the petition to this Court. Besides a Notice of Appeal filed on 12th November 2012 [1st Notice] another was filed on 12th July 2013 [2nd Notice] and another on 24th February 2014 [3rd Notice]. A further notice [4th Notice] purported to be filed on 5th June 2014. This was filed after the decision of the single judge who delivered his ruling on 11th April 2014 after a hearing on 20th March 2014.

[24] Even allowing for the hardships facing an applicant such as the present applicant, this procedure is not to be encouraged. It may have been resorted to because the Court of Appeal at the time was facing a backlog of single judge applications. That situation fortunately, by the application of a sufficiency of judicial resources, no longer exists. The court cannot entertain a succession of Notices of Appeal from the same applicant, all of which are considerably out of time. Such filing becomes an abuse and is likely to result in summary dismissal.

[25] This Court in considering a challenge to the single judge’s decision cannot consider the 4th Notice which was filed after the single judge had delivered his ruling on 11th April 2014. It is disregarded.

[26] The single judge dismissed the appeal before him for the reasons summarized at paragraph [8] of the judgment. They were that the grounds were frivolous by virtue of being unarguable.

Petition to Supreme Court

[27] A petition containing 9 grounds of appeal against conviction only were filed on 20th April 2014. On 8th July 2015 the petitioner through the intervention of his Legal Aid Counsel had substituted two new grounds for the 9. They were:

1. The Learned Justice of Appeal erred in law when he acted beyond his powers by dismissing a ground of appeal that only involved question of law.
   
2. The Learned Justice of Appeal erred in law and in fact by dismissing the Petitioner’s leave to appeal application as frivolous under section 35(2) of the Court of Appeal Act.
   

[28] In effect there is only one ground and that is ground 2. Ground 1 fails at the outset for a ground involving a question of law solely can still be dismissed under section 35(2) if frivolous: Naisua (supra). I move now to the grounds raised in the court below.

Composition of the Assessors

[29] The single judge canvassed 7 grounds in his ruling. The first was a complaint that 2 of the 3 assessors were itaukei females who might have sided with the itaukei female complainant, this being a rape case. This complaint was not raised in the trial court. What of the unfairness had the 2 assessors been itaukei males who might have sided with the male itaukei petitioner? The third assessor was an Indian male. Such an apprehension of bias is unarguable and the single judge correctly said:

“This contention is not arguable for two reasons. Firstly, an assessor is not disqualified on the basis of race and gender. Race or gender alone cannot give rise to a perception of bias. Secondly, the assessors express their opinions based on the law and evidence as directed by the trial judge. There is a presumption that the assessors perform their functions independently, impartially, fairly and without favour or bias one way or the other. The presumption can be displaced only on very compelling grounds. None exists in this case.”

[30] Whilst court registries are required to strive for gender and racial balance in the panels this is not always possible. Any imbalance cannot in itself give rise to an apprehension of bias or form a successful ground of appeal. In State v Timoci Naisake and Anor. [2001] Suva High Court Crim. Case No. HAC001 of 2000, Ruling 31st January 2001 Shameem J said “Nor can I accept that the Indian and part-European assessors should be replaced by assessors of other races.”

[31] Her Ladyship concluded:

“There are no male/female gender issues relating to this case. Even if there were, I doubt that my decision would be different. Just as men can be and are trusted to judge impartially in affairs relating to women, so are women to be trusted to judge impartially the affairs of men. Although a gender balance is always desirable on a panel of assessors, I am reluctant to adjourn this trial for an unknown length of time to allow a man to replace a woman on this panel.”

[32] Though opinions are tendered to the court by the 3 person panel of assessors it must be remembered that under Fiji’s criminal trial system in the High Court, the ultimate decision on law and fact rests with the judge. In the same way complaints with regard to the race or gender of the trial judge, without evidence of actual or apprehended bias, could not form a relevant ground of challenge either.

Lack of Legal Representation
[33] The lack of legal representation in itself is not enough to indicate a miscarriage of justice. Legal representation in a rape case is desirable. However it is hard to see how counsel could have assisted the petitioner in cross-examining the two key witnesses for the prosecution. This was because he had no alternative circumstances to put to the witnesses as to what had happened after they had finished drinking at the Club when the complainant and her cousin were getting ready to leave. His case was a complete denial of their allegations but he said he did not remember anything. This would not have provided any information to counsel in the way of instructions in order to test the witnesses. Nor could the judge in assisting the trial Accused have assisted in this regard. Nonetheless the petitioner cross-examined the witnesses and gave evidence in his own defence and called one witness. The trial did not miscarry for want of legal counsel.

Medical Report

[34] It is not easy to follow the ground objecting to the judge’s direction on the medical report. Pursuant to section 133 of the Criminal Procedure Decree 2009 the prosecution had three choices:

1. Tendering the medical report without calling a witness, unless the Accused requires the witness, the maker of the report, to be present having given 14 days notice to the prosecutor before the trial [section 133(1)(b)].
   
2. Tendering the medical report through its maker, the examining doctor who completed the form, or
   
3. Tendering the medical report through another expert witness, as here, who may refer to it and comment upon it [section 133(5)].
   

[35] The third option was chosen by State Counsel in this trial.

[36] The medical report set out the injuries noted by the hospital doctor upon examination. These injuries were consistent with the account given by the complainant and what was seen on her face by the other witnesses.

[37] The single judge said of the summing up in this regard:

“The medical report of the victim revealed that she sustained visible facial injuries that were consistent with physical abuse. The history related to the doctor was that a Fijian man assaulted her and inserted his finger in her vagina. The history related to the doctor was consistent with the evidence of the victim in court. The medical evidence was opinion evidence and the trial judge correctly pointed out in his summing up that the doctor’s opinion on the matters in the field of obstetrician and gynecology was admissible evidence. At paragraph 29 of his summing up, the trial judge summarized the medical evidence to the assessors and left the weight of it to be considered by them. There is no arguable error in those directions.”

[38] The trial judge had said:

“He gave evidence on the history given by the patient, special medical findings and the professional opinion. The medical report is before you. There had been scratch marks on the victim’s face around the right eye and over the nasal bridge. There had been a small abrasion on the inner aspect of the upper lip. Injuries were consistent with the physical abuse and the history given by the patient.”

[39] This ground was clearly unarguable.

[40] All of the other grounds – failure to put the appellant’s defence, defective summing up, identification evidence, and unsafe verdict were all properly covered by the single judge and do not raise matters that should detain this court. They do not meet any of the required thresholds for enlargement of time, or for raising arguable grounds for the grant of leave by a single judge. The single judge’s decision was correct. In addition this was not an appropriate matter on which to grant an enlargement of time.

Conclusion
[41] The single judge kept within the test for “frivolous” as against “vexatious” or the need for mere “refusal” of leave on the grounds raised. Dismissal by the single judge may properly be exercised under section 35(2) applying the principles set out in Naisua, following a hearing, and with the delivery of properly enunciated reasons: The State v John Miller and 2 Others CAV0008 of 2009 15th April 2011. Dismissal “on the papers without a hearing” is the category of dismissal to be used sparingly, and as I have said in recent years this procedure has not been resorted to.

[42] Leave to this court is still considered to be a ‘special’ leave requirement [section 7 Supreme Court Act] Tiritiri v The State CAV9 of 2014 at para 27. In this case the single judge was right to dismiss the application as being frivolous in the sense that the grounds were not arguable and could not succeed. This was a correct use of the filter provision of section 35(2). The petitioner has failed to meet the threshold requirements of section 7(2) of the Supreme Court Act, and his petition must therefore be dismissed.

Ekanayake JA
I have read the draft judgment of His Lordship Gates P and agree with the reasoning and conclusions.

Calanchini JA
I agree with the reasoning and conclusions of Gates P.

.......................................................
Hon. Chief Justice Anthony Gates
President of the Supreme Court

......................................................
Hon. Madam Justice Chandra Ekanayake
Judge of the Supreme Court

.......................................................
Hon. Mr. Justice William Calanchini
Judge of the Supreme Court

Solicitors for the Petitioner: In Person
Solicitors for the Respondent: Office of the Director of Public Prosecutions