Kirikiti v State [2015] FJSC 13; CAV17.2014 (20 August 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA

CRIMINAL PETITION NO. CAV 17 OF 2014
(Court of Appeal AAU 5 of 2011)
(High Court HAC 139 of 2010)
(Magistrates Court Criminal 1209 of 2010)

BETWEEN:

ALIFASI KIRIKITI
Petitioner

AND:

THE STATE
Respondent

Coram : The Honourable Mr Justice Saleem Marsoof,
Justice of the Supreme Court
The Honourable Madam Justice Chandra Ekanayake,
Justice of the Supreme Court
The Honourable Mr Justice William Calanchini,
Justice of the Supreme Court

Counsel : Mr M Yunus for the Petitioner
Mr M Delaney for the Respondent

Date of Hearing : 6 August 2015
Date of Judgment : 20 August 2015

JUDGMENT

Marsoof JA

[1] I agree with the judgment of Calanchini JA.

Ekanayake JA

[2] I have read in draft the judgment of Calanchini JA and concur with his reasoning and conclusions.

Calanchini JA

[3] This is a petition for leave to appeal the decision of the justice of appeal dismissing the Petitioner's appeal pursuant to section 35(2) of the Court of Appeal Act Cap 12.

Introduction
[4] The Petitioner was charged with one count of aggravated robbery contrary to section 311(1) (a) of the Crimes Decree 2009. Following a trial in the Magistrates Court at Suva exercising extended jurisdiction, the Petitioner was convicted and sentenced on 10 January 2011 to a term of imprisonment of 8 years and 6 months with a non-parole term of 7 years.

Court of Appeal proceedings – grounds of appeal
[5] By letter dated 16 January 2011 the Petitioner applied for leave to appeal to the Court of Appeal against conviction and sentence. The application was filed within the time prescribed by Section 26(1) of the Court of Appeal Act. An amended petition of appeal was filed on 3 March 2014 by the Legal Aid Commission on behalf of the Petitioner. The Petitioner sought leave to appeal against conviction on the following amended grounds:

"(1) The learned trial Magistrate erred in law in convicting your petitioner for aggravated robbery when the said offence was defective.

(2) The learned trial Magistrate erred in law when he failed to properly assist the petitioner as a result of this unrepresented status by failing to direct himself on the following matters:

(i) failing to warn himself on the dangers of identification alone when there was no other corroborating evidence;

(ii) failing to warn himself on the prejudicial effect of using its judicial discretion to exclude the identification parade which would have assisted the court in terms of what weight to award to the identification made by the two eye witnesses."

[6] The Petitioner sought leave to appeal against sentence on the following grounds:

"1. The learned trial Magistrate erred in law when he imposed a non-parole period when the imposition of the non-parole period offended against the remission as allowed in the Prisons and Corrections Act 2006.

2. The learned trial Magistrate erred in law in using the Appellant's previous conviction as an aggravating factor in sentence."

[7] To the extent that the grounds of appeal against conviction involved a mixed question of law and fact or of fact alone the Petitioner was required to obtain the leave of the Court of Appeal. In respect of his appeal against sentence the Petitioner was required to obtain the leave of the Court (Section 21(1) (b) and (c) of the Court of Appeal Act). However leave was not required in the event that any of the Petitioners grounds of appeal against conviction involved a question of law alone (Section 21(1) (a) of the Act). Pursuant to section 35(1) of the Court of Appeal Act the power of the Court of Appeal to give leave to appeal to the Court may be exercised by a justice of appeal.

[8] The application for leave came before a justice of appeal on 17 March 2014 and a ruling was subsequently delivered on 7 April 2014. In considering the ground of appeal claiming that the charge was defective, the learned Judge referred to section 311 (1) (a) and to the statement of offence and the particulars of offence for which the Petitioner was tried and convicted. The Judge noted that Counsel for the Petitioner did not identify the alleged defect and concluded that the particulars contained all the ingredients of aggravated robbery. The learned Judge concluded that since the error alleged involved a question of law alone, leave was not required. However the learned Judge then went on to conclude that the ground was frivolous since it could not "possibly succeed."

[9] In relation to the identification ground, the learned justice of appeal rightly considered that this ground involved a question of mixed law and fact: (Cava –v- The State CAV 7 of 2010; 14 November 2011 and Jitoko –v- The State AAU 11 of 2010; 8 March 2012). The Judge noted that the learned trial Magistrate had turned his mind to the Turnbull guidelines. The Judge found no error in the trial Magistrate's finding that the identification evidence was reliable and that an identification parade would not have added anything because the Petitioner was arrested after he had been identified by witnesses at the scene as one of the offenders. The Judge concluded that not only did the ground of appeal not raise an arguable point (thereby refusing leave) but was also a frivolous ground in the sense that it could not possibly succeed.

[10] The learned justice of appeal then considered the grounds of appeal against sentence. In relation to the issue of a remission and the non-parole term, the justice of appeal noted that remission under the Corrections Service Act 2006, (formerly Prisons and Corrections Act 2006) is not a matter that a sentencing court is entitled to take into account in sentencing. The power to grant remission is a matter for the executive branch. A sentencing court, however, is required to impose a non-parole term under section 18(1) of the Sentencing and Penalties Decree 2009 unless there are circumstances under section 18(2) which make the fixing of such a term inappropriate. The Judge concluded that the ground was frivolous.

[11] As for the second ground of appeal against sentence, the justice of appeal noted that the learned Magistrate had expressly stated that the Petitioner's previous convictions were not considered to be an aggravating factor, although they did go to character.

[12] The justice of appeal concluded that both grounds of appeal against sentence were frivolous and as a result he dismissed the appeal against conviction and sentence under section 35(2) of the Court of Appeal Act.

Supreme Court – grounds of appeal

[13] On page 2 of the additional submissions filed on 6 July 2015 the Petitioner sets out his grounds for leave to appeal the dismissal of his appeal by the justice of appeal as being:

"(a) The learned Justice of Appeal acted beyond his powers by dismissing a ground of appeal that only involved question of law.

(b) The learned Justice of Appeal erred by dismissing his appeal solely on the basis that it could not possibly succeed and is frivolous."

[14] Pursuant to Rule 5 of the Supreme Court Rules (the Rules) an application for special leave must be by way of petition and the petition must be supported by an affidavit verifying the allegations made in the petition.

[15] It would appear that the initial letter to the Supreme Court Registry indicating that the Petitioner challenged the Ruling of the justice of appeal was dated 26 May 2014 but did not set out the basis of the challenge. An affidavit in support sworn by the Petitioner on 28 May 2014 was filed with a detailed notice of leave to appeal in the Supreme Court Registry on 10 June 2014. The Petitioner in person subsequently filed material that outlined the grounds of the challenge. The issues were clarified when the Legal Aid Commission filed its submissions on 6 July 2015.

[16] Rule 6 of the Rules requires the Petitioner to lodge with the Registry of the Supreme Court the petition and an affidavit in support within 42 days of the date of the Ruling of the justice of appeal. The documents should have been lodged no later than 19 May 2014. If it is accepted that the petitioner had done all that he could do as an incarcerated petitioner on 26 May 2014, the petition was about 7 days out of time.

[17] In its written submissions the Respondent has indicated that it does not take issue with the late lodgement of the petition.

Leave to appeal to the Supreme Court

[18] In order to obtain leave to appeal from this Court as is required by section 98(4) of the Constitution, the Petitioner pursuant to section 7(2) of the Supreme Court Act 1998 must show that in the grounds raised:

"(a) a question of general legal importance is involved;

(b) a substantial question of principle affecting the administration of criminal justice is involved; or

(c) a substantial and grave injustice may otherwise occur."

[19] In Naisua –v- The State (CAV 10 of 2013; 20 November 2013) this Court at paragraph 32 accepted that where a Petitioner's appeal has been properly brought before the Court of Appeal and has been subsequently curtailed by a wrong application of the law, then a substantial and grave injustice may occur if the petitioner is not granted leave to appeal to this Court. That decision involved the dismissal of an appeal by a justice of appeal under section 35(2) of the Court of Appeal Act.

[20] Therefore in deciding whether to grant special leave it is necessary to consider (1) whether the Petitioner's appeal was properly before the Court of Appeal and (2) whether that appeal was curtailed by a wrong application of the law.

[21] It is not in dispute that the Petitioner's appeal was properly before the Court of Appeal. Two issues arise as to whether it was curtailed by a wrong application of the law. The first issue is whether the justice of appeal acted beyond his jurisdiction when he exercised the power of dismissal under section 35(2) of the Court of Appeal Act in respect of a ground or grounds of appeal that involved a question of law only. The second issue is whether he erred in his conclusion that the grounds of appeal were frivolous on the basis that they could not possibly succeed.

Jurisdiction of a justice of appeal
[22] The question of the powers of the single judge can be considered by reference to the legislation. Under section 21(1) (a) of the Court of Appeal Act an appeal lies as of right in respect of a conviction on any ground of appeal which involves a question of law alone. In such a case there is no requirement for leave. Therefore an appellant can, if there are no other grounds of mixed fact and law or fact alone, file a notice of appeal rather than an application for leave to appeal. If there are grounds of appeal involving questions of law only with grounds involving questions of mixed law and fact or fact alone, then an application for leave must be filed, setting out all the grounds of appeal, including those that raise questions of law alone. The question of leave will only be considered in relation to the grounds requiring leave under section 21(1) (b) and (c).

[23] Section 35(2) states:

"If on the filing of a notice of appeal or of an application for leave to appeal, a justice 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."

[24] The jurisdiction to dismiss the appeal on any of the stated grounds can be exercised in relation to either a notice of appeal or an application for leave to appeal. A notice of appeal is filed when leave is not required, that is when the appeal involves a question of law alone under section 21(1) (a). An application for leave to appeal is filed when leave is required under section 21(1) (b) and (c). It is quite apparent that the power to dismiss an appeal can be exercised in respect of both a notice of appeal and an application for leave to appeal. The learned judge did not exceed his jurisdiction when he proceeded to consider dismissing the appeal under section 35(2) of the Court of Appeal Act. The power to dismiss under section 35(2) can be exercised in respect of any appeal that is filed pursuant to section 21 of the Court of Appeal Act.

Was the appeal frivolous?
[25] The next issue is to determine whether the learned justice of appeal erred when he dismissed the appeal as being frivolous. Although the learned Justice of Appeal appears to have concluded that the grounds were frivolous on the basis that they could not possibly succeed, it is arguable on a reading of section 35(2) that reasoning relates to the ground that there is no right to appeal. However, as a result of this Court's decision in Naisua –v- The State (supra) it appears that a similar meaning has in law been given to frivolous.

[26] The Petitioner's written submissions do not address the merits of the first ground of appeal before the justice of appeal. It would appear that the Petitioner was prepared to rely upon the jurisdictional issue on the basis that the first ground raises a question of law only. The first ground of appeal states:

"The learned Trial Magistrate erred in law when convicting your Petitioner for aggravated robbery when the said offence was defective."

[27] The offence of aggravated robbery is set out in section 311(1)(a) of the Crimes Decree 2009 as follows:

"A person commits an indictable offence if he or she:

(a) commits a robbery in company with one or more other persons; or
(b) commits a robbery and _ _ _."

[28] The Petitioner was charged under section 311(1) (a) of the Crimes Decree according to the "statement of offence." "The particulars of the offence" are stated as:

"Alifasi Kirikiti on the 9th day of July 2010 at Suva in the Central Division with others stole cash $345.00 from one Ashwant Nagaiya s/o Nagaiya."

[29] The particulars allege that the Petitioner stole cash in company. The offence created by section 311 (1) (a) is rob in company. The difference between rob and steal is the use of force. It is not frivolous to claim that the charge was defective because there was no reference to the use of force or any reference to a fact or acts that might constitute the use of force. In my judgment a ground of appeal that has the effect of claiming that the charge is defective on account of non-compliance with sections 58 and 61 of the Criminal Procedure Decree is not a frivolous ground. This is even more so the case when the particulars have not been drafted in accordance with Form 8 in the Criminal Procedure Decree 2009 (Forms) Rules.

[30] The other ground relied upon by the Petitioner concerned the manner in which the learned Magistrate had considered the issue of identification. In particular the Petitioner's complaints are (1) that there was no evidence to corroborate the identification evidence of two witnesses who witnessed the incident and identified the Petitioner to the arresting police officer at the scene of the incident and (2) that there was no identification parade, a matter which should have been taken into account by the learned Magistrate.

[31] In his ruling the learned justice has correctly considered the second issue. In view of the identification of the Petitioner by the witnesses at the scene of the incident, it is clear that an identification parade would not have added any weight to the evidence. The only issue for the learned Magistrate was to determine the reliability of that evidence which he did.

[32] In relation to the first issue there is no requirement in law for any evidence to be adduced to corroborate identification evidence. I am satisfied that the ground of appeal relating to identification was frivolous. There was no error on the part of the learned judge when he arrived at that conclusion.

[33] The two grounds of appeal against sentence are frivolous. In relation to a non-parole period fixed by a sentencing court, there is no basis for taking into account the remission provisions of the Corrections Service Act 2006. Furthermore it is quite clear from paragraph 15 of the sentencing judgment dated 10 January 2011 that the learned Magistrate has not taken into account the previous criminal record of the Petitioner as an aggravating factor. The Magistrate was entitled to consider the previous record when assessing character and specific deterrence.

An additional ground against sentence
[34] Before leaving the issue of sentence, it is necessary to consider the Respondent's submission concerning a ground that was not considered by the learned Justice of Appeal. The ground is that the sentence was harsh and excessive. The ground is raised in a document filed on 20 June 2014 in the Supreme Court Registry which may be read as setting out additional grounds for leave to appeal to the Supreme Court (pages 12 – 26 in the Record). Although not initially a ground of appeal in the notice of appeal to the Court of Appeal, it was raised by the Petitioner in his submissions filed in the Court of Appeal on 2 May 2014 for the hearing before the Justice of Appeal. Unfortunately the date of receipt was after the Ruling by the judge delivered on 7 April 2014. The ground was therefore not considered by the learned judge.

[35] The Respondent submits that had the submissions reached the Court of Appeal registry before the delivery of the Ruling, the Justice of Appeal may well have concluded that it was an arguable, or, at least not a frivolous, ground of appeal against sentence. Upon a reading of the sentencing decision and the judgment delivered by the learned Magistrate it is an arguable point that the Magistrate has confused the offences of armed robbery and robbery with violence under section 293(1)(a) and (b) of the Penal Code (now repealed) with the offence of aggravated robbery under section 311 (1)(a) and (b) of the Crimes Decree 2009 and the sentencing principles that apply in each case. It is at least arguable and certainly not frivolous to claim that the penalty was harsh and excessive on the basis that the Magistrate has considered matters that he should not have considered and that as a result his sentencing discretion has miscarried.

[36] For that reason I would grant leave to appeal against the decision of the Justice of Appeal dismissing the appeal against sentence and allow the appeal.

Conclusion
[37] In summary I would grant leave to appeal on the basis that the Petitioner was wrongly denied the right to have his appeal determined by the Court of Appeal in respect of the one ground of appeal against conviction that involves a question of law alone, being the defective charge. The Petitioner has also been denied the right to argue leave to appeal against sentence on the ground of a harsh and excessive sentence. Otherwise a grave and substantial miscarriage of justice may occur. I would allow the appeal on those grounds and quash the decision dismissing the Petitioner's appeal in the Court below. The Petitioner's appeal against conviction on the ground involving a question of law alone under section 21(1)(a) of the Court of Appeal Act and the application for leave to appeal against sentence (under section 21(1)(c) of the Act) on the ground of a harsh and excessive sentence should be remitted to the Court of Appeal for determination.

Orders:

1. Leave to appeal is granted.

2. Appeal is allowed and the order of the Court of Appeal is quashed.

3. The petitioner's appeal against conviction on the question of law alone and the application for leave to appeal sentence are remitted to the Court of Appeal for determination.

_______________________________________
Hon. Mr Justice Marsoof
Judge of the Supreme Court

_______________________________________
Hon. Madam Justice Ekanayake
Judge of the Supreme Court

_______________________________________
Hon. Mr Justice Calanchini
Judge of the Supreme Court