Baleinabodua v State [2015] FJSC 16; CAV7.2014 (20 August 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA

CRIMINAL APPEAL NO: CAV 7 of 2014
[Court of Appeal No: AAU 19 of 2012]

BETWEEN:

ANASA BALEINABODUA
Petitioner

AND:

THE STATE

Respondent

Coram : Hon. Justice Saleem Marsoof, Justice of the Supreme Court
Hon. Madam Justice Chandra Ekanayake Justice of the Supreme Court
Hon. Justice William Calanchini, Justice of the Supreme Court

Counsel : Mr. S. Waqainabete for the Petitioner
Mr. L. Burney and Mr. E. Samisoni for the Respondent

Date of Hearing : 5 August 2015
Date of Judgment : 20 August 2015

JUDGMENT
Justice Marsoof

[1] The primary question that arises for decision in this case is whether the Single Judge of the Court of Appeal erred in law in dismissing the Petitioner's appeal to the Court of Appeal under section 35(2) of the Court of Appeal Act (Cap. 12) on the basis that the Petitioner's "grounds of appeal are not arguable and the appeal is frivolous".

[2] Before considering this and other questions that arise for consideration by this Court in this case in greater detail, it may be useful to outline the factual background to the case.

The Factual Matrix

[3] The incident that gave rise to these proceedings occurred on 22nd July 2010 at Raiwaqa in close proximity to the Raiwaqa Police Post situated on Grantham Road, Raiwaqa. The victim was a police constable, Alvin Hemant Prakash, attached to the Samabula Police Station, who was directed to proceed to Raiwaqa Police Post to record the statement of an assault victim.

[4] While the Constable Prakash was recording the statement of the assault victim at approximately 7.30 pm, he was disturbed by noises from outside, which came from the direction of the Sigatoka Electric Shop, where the Petitioner and his father were drinking beer.

[5] Unable to concentrate in his work, the constable stepped out of the Police Post and saw the Petitioner's father, Tevita Seru, holding a bottle of beer standing with the Petitioner in front of the Sigatoka Electric building which was situated 20 to 30 steps away from the Police Post.

[6] When Constable Prakash approached the Petitioner and his father, the latter gave the opened bottle of beer to the Petitioner, who fled from the scene with the bottle of beer. Constable Prakash arrested Tevita Seru and proceeded to escort him into the Police Post with the assistance of two other police officers, for questioning.

[7] Shortly afterwards, while Constable Prakash was questioning Tevita Seru inside the Police Post, the Petitioner suddenly appeared at the door of the Police Post with a cane knife and struck Constable Prakash on the head with the said knife. The blow penetrated the victim's skull and caused serious head injuries.

[8] After smashing the louvers of the windows of the Police Post and threatening the other two police officers present at the Police Post, the Petitioner and his father Tevita Seru fled from the Police Post.

[9] The Petitioner and his father were both subsequently arrested by the Police, and in his caution interview, the Petitioner admitted committing the offences.

[10] The Petitioner was charged with the offences of attempted murder contrary to section 44 and 237 of the Crimes Decree No. 44 of 2009 and damaging property contrary to section 369(1) of the Crimes Decree, and jointly with Tevita Seru, with the offence of drunk and disorderly behaviour contrary to section 4 of the Minor Offences Act (Cap 18).

[11] Tevita Seru was also charged with the offences of criminal intimidation and escaping from lawful custody contrary to respectively sections 375(1) and 196 of the Crimes Decree.

[12] After a brief trial before the High Court of Fiji at Suva, on 2nd March 2012, the assessors returned unanimous opinions of guilty as charged against the Petitioner and his father, Tevita Seru, which opinions were accepted by the High Court Judge, who proceeded to convict the Petitioner and his father of the aforesaid offences as charged.

[13] Based on the said verdicts, on 23rd March 2012, the High Court Judge sentenced the Petitioner to life imprisonment with a non-parole period of 10 years for attempted murder, and imposed two sentences of 1 month imprisonment each for the offences of damaging property and drunk and disorderly behaviour, and further ordered that the said sentences shall run concurrently.

[14] The High Court Judge also sentenced the Petitioner's father, Tevita Seru, to 18 months each for the offences of escaping from lawful custody and criminal intimidation, and imposed on Seru a further sentence of 3 months imprisonment for drunk and disorderly behaviour.

The Application for leave to appeal to the Court of Appeal

[15] The Petitioner, by his letter dated 19th April 2012 addressed to the Officer in Charge, Fiji Court of Appeal, Suva, sought leave to appeal from his conviction and sentence on the following grounds:-

Grounds of Appeal against Conviction

1. That the learned trial Judge erred in law and in fact when he did not direct the assessors and also consider the fact that the Appellant was suffering from Schizophrenia at the time of the commission of the offence and even during the trial and hence would not know the nature and the quality of the conduct neither he know the conduct was wrong and was unable to control the conduct (sic).

Grounds of Appeal against Sentence

3. That the non-parole period of 10 years imprisonment is indeed harsh, manifestly excessive and wrong in principle in the light of the circumstance of the case and the condition of the Appellant.
   

[16] However, in the amended application for leave to appeal dated 25th March 2014 filed by the Legal Aid Commission on behalf of the Petitioner, the ground of appeal against sentence was abandoned, and the application for leave to appeal was confined to the following grounds:-

Ground One

The learned Trial Judge erred in law when he did not properly direct the Assessors to the evidence under cross-examination of Dr. Narayan when he agreed that the Appellant was a patient suffering from schizophrenia (severe mental sickness and even during the trial he was still suffering the same sickness. Dr. Narayan also agreed that his latest report may have been wrong in terms of the Appellant's ability to stand trial and his awareness of his conduct at the material time.

Ground Two

The Learned Trial Judge erred in law and in fact when he did not properly consider what Dr. Narayan said and agreed to under cross-examination.

Ground Three

The Learned Trial Judge erred in law and in fact when he did not direct the Assessors on the Appellant's evidence which was given on oath that would show that he was suffering from schizophrenia even during the trial.

[17] The application for leave to appeal was taken up for hearing before a Single Judge of the Court of Appeal on 27th March 2014 with notice to the Respondent on the amended application for leave to appeal filed by the Petitioner.

[18] In paragraph [4] of his Ruling dated 16th April 2014, his Lordship commenced his consideration of the 3 grounds of appeal contained in the said amended application under the sub-head "Mental Impairment", and stated that he had the power to grant leave to appeal under section 35(1) of the Court of Appeal Act and also the power to dismiss a frivolous appeal under section 35(2) of the said Act.

[19] In paragraph [5] of his Ruling, his Lordship reproduced in full Section 28 of the Crimes Decree No. 44 of 2009 which deals with the defence of mental impairment, and in paragraph [6] of his Ruling fully reproduced the entire summing up relating to the said defence raised by the Petitioner, Anasa Baleinabodua. Thereafter, his Lordship concluded as follows in paragraphs [7] and [8] of the said Ruling:-

"[7] The issue at trial was whether Anasa [The Petitioner] knew the difference between right and wrong when he committed the alleged offence. According to the Summing Up, Dr. Narayan maintained his opinion that Anasa knew what he did was wrong even under cross examination. The grounds of appeal allege that Dr. Narayan withdrew from his initial opinion under cross-examination. I have perused the judge's notes on the cross examination of Dr. Narayan. The notes does not (sic) support Anasa's contention regarding the change of opinion.

[8] The trial judge's directions on mental impairment were correct in law and fact. I find the grounds of appeal are not arguable and the appeal is frivolous."(Emphasis added)

[20] In paragraphs [9] to [13] of the Ruling, his Lordship deals with the appeal filed by the Petitioner's father, Tevita Seru, which is not material to the application for special leave to appeal lodged in this Court by the Petitioner, and records the overall result in paragraph [14] of the Ruling in the following manner:-

"[14] Leave is refused. Both appeals are dismissed under section 35(2) of the Court of Appeal Act."(Emphasis added)

The Application for Special Leave to Appeal to the Supreme Court

[21] In his letter dated 7th May 2014 addressed to the Senior Court Officer of the Supreme Court Registry in Suva, the Petitioner has stated that he wishes "to appeal his conviction and sentence" as he is "not satisfied with the decision of the Court of Appeal." The Petitioner has set out 3 grounds of appeal in the said letter.

[22] The grounds of appeal urged by the Petitioner in the aforesaid letter dated 7th May 2014 in support of his appeal are identical with the grounds set out in the amended application for leave to appeal against conviction dated 25th March 2014 filed in the Court of Appeal by the Legal Aid Commission on behalf of the Petitioner. These grounds, which are 3 in number, have been reproduced in full in paragraph [3] of the Ruling of the Single Judge of the Court of Appeal dated 16th April 2014 as well as in paragraph [16] of this judgment, and need not be reproduced here.

[23] Although the Petitioner was represented at the hearing of this application for special leave to appeal by Mr. Waqainabete of the Legal Aid Commission, the letter dated 7th May 2014 referred to in paragraph [21] of this judgment appears to have been prepared without assistance of Counsel, and does not contain a prayer seeking special leave to appeal. Mr. Waqainabete sought the indulgence of Court to treat the said letter as one seeking special leave to appeal against the Ruling of the Single Judge of the Court of Appeal dated 16th April 2014, and in the interests of justice, this Court will do so.

[24] The question that arises for determination in this application is whether the Single Judge of the Court of Appeal erred in law in dismissing the Petitioner's appeal to the Court of Appeal under section 35(2) of the Court of Appeal Act on the basis that the Petitioner's "grounds of appeal are not arguable and the appeal is frivolous".

[25] As his Lordship rightly observed in paragraph [4] of his Ruling, all three grounds urged by the Petitioner in his amended application for leave to appeal dated 14th March 2015 filed in the Court of Appeal involved mixed questions of law and fact. The essence of these grounds was that the trial judge erred in law and in fact when he did not properly direct the assessors and himself in regard to the alleged mental impairment of the Petitioner.

[26] It is noteworthy that in paragraph [6] of his Ruling, his Lordship reproduced at length the entire summing up relating to the defence of mental impairment raised by the Petitioner and went on to observe in paragraph [8] of his Ruling that the trial judge's directions on mental impairment were correct in law and fact. It was on this basis that his Lordship arrived at the conclusion that the grounds of appeal urged by the Petitioner are not arguable and the appeal is frivolous and hence should be dismissed under section 35(2) of the Court of Appeal Act.

[27] In this connection, the question arises as to whether the Single Judge of the Court of Appeal was right in proceeding to dismiss the Petitioner's application for leave to appeal in terms of section 35(2) of the Court of Appeal Act as opposed to refusing him leave to appeal in terms of section 35(1)(a), which latter cause would have provided the Petitioner with the opportunity of moving the Court to have his application determined by it "as duly constituted for the hearing and determination of appeals" as provided in section 35(3) of the Court of Appeal Act.

[28] Before attempting to answer that question, it is necessary to observe that section 35 should be understood and interpreted in the context of the overall structure of the Court of Appeal Act and bearing in mind that the Court of Appeal is a busy court that has a multitude of functions including hearing civil and criminal appeals, and some flexibility as to the minimum number of judges required to constitute the court for a hearing has been provided by section 6 of the Act.

[29] In view of the heavy load of work that could otherwise congest the court, Sections 22 of the Act seek to filter the cases that come up for hearing before the Court of Appeal by way of appeal by interposing the requirement of obtaining the leave of that court except in regard to matter that involve a question of law alone or which is certified by the judge from whose decision the appeal is sought that it is a fit case for appeal.

[30] Section 35 of the Court of Appeal Act takes the filtering function even further by conferring on a single judge of that court, subject to certain safeguards imposed in the interests of justice, the power to grant or refuse leave to appeal [section 35(1)(a) of the Act] as well as the power to summarily dispose of matters that cannot possibly come up on appeal due to the no-existence of a right of appeal or right to seek leave to appeal [section 35(2)].

[31] There is a material distinction in regard to the remedy available to a party who is affected by the decision of the single judge depending on whether the single judge purported to act under section 35(1)(a) or section 35(2) of the Court of Appeal Act. While section 35(3) provides that where a single judge of the Court of Appeal has refused an application for leave to appeal under section 35(1)(a) of the Act, the appellant may move to have the matter determined by the Court as duly constituted for the hearing and determination of appeals under the Act, where a single judge has dismissed an appeal in terms of section 35(2), his only remedy is to seek special leave to appeal from this Court, as the petitioner has done in this case.

[32] In terms of section 35(2) of the Court of Appeal Act–

"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." (Emphasis added)

[33] The language of section 35(2) clearly indicates that the power of dismissal is conferred on a single judge to deal with cases which are "vexatious or frivolous or is bound to fail because there is no right of appeal or no right to seek leave to appeal." To my mind it is manifest that the objective of this provision was to confer a power of dismissal on a single judge of the Court of Appeal to summarily dismiss a notice of appeal or an application for leave to appeal where due to the absence of a right to appeal or the absence of a right to seek leave to appeal, the notice of appeal or application for leave to appeal is found to be vexatious or frivolous. This summary dismissal power has been conferred of a single judge of the Court of Appeal to not only redress congestion of the court but also to prevent inconvenience and expense to respondents having to face proceedings which cannot be maintained due to the absence of a right to appeal or right to seek leave to appeal.

[34] In Tiritiri v. The State [2014] FJSC 15 CAV9.2014, this Court had to had to grapple with a similar question, and in the course of his judgment in this case, his Lordship Justice Calanchini observed as follows:-

".......section 35(2) provides that if the justice of appeal determines that the appeal is (1) vexatious or frivolous or (2) 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. The use of the words "dismiss the appeal" indicate a different outcome from the words "refuses the appion"" in section 35(3). ismissal ssal of the appeal indicates finality. The words indicate that the Court of Appeal is as a result of the orde60;PPrevious decisions of this Court do indo indicate that the jurisdiction should buld be exercised sparingly. It will always be difficult to distinguish between an appeal none of the grounds of which are arguable and an appeal that is frivolous or vexatious. Nevertheless, the sections require a justice of appeal to do just that. It is less difficult to envisage an appeal that should be dismissed where there is no right of appeal. This will usually be the position when an appellant does not meet the jurisdictional requirement prescribed by section 22 of the Act in respect of an appeal from the High Court exercising its appellate jurisdiction."(Emphasis added)

[35] No doubt, section 35 is a difficult provision to interpret and apply, and the difficulties of interpretation the provision gives rise to are manifested in the below quoted paragraph [4] of the Ruling of the Single Judge of the Court of Appeal wherein he discussed the grounds of appeal urged by the Petitioner in his amended petition filed in the Court of Appeal:-

"[4] All three grounds involve questions of mixed law and fact. Section 21(1)(b) [of the Court of Appeal Act (Cap 12)] requires the appellant to obtain leave. The test of leave is whether the ground is arguable before the Full Court. A single judge has power to grant leave (section 35(1) of the Court of Appeal Act). A single judge also has power to dismiss a frivolous appeal. A frivolous appeal is one that cannot possible succeed (Naisua's case)." (Emphasis added)

[36] In the above passage from the Ruling, while the Single Judge has correctly propounded a test for leave on the basis of whether the ground urged for appeal is arguable before a bench of the Court of Appeal as properly constituted, in my view, he erred in isolating the word "frivolous" from its context which I have already highlighted, which is that his power of dismissal is confined to a notice of appeal or an application for leave to appeal which he determines to be "vexatious or frivolous or is bound to fail because there is no right of appeal or no right to seek leave to appeal."

[37] It is noteworthy that in the instant case the application of the Petitioner for leave to appeal was not summarily dismissed by the Single Judge, and in fact had been argued after giving notice to the respondents. The ruling of the single judge to dismiss the application for leave to appeal was made after full hearing, and in those circumstances, in my considered opinion the proper order to be made where the single judge finds that the ground of appeal was not arguable would be to refuse leave to appeal, in which event, the appellant would have had the opportunity of taking the matter for review by a properly constituted bench of the Court of Appeal.

[38] During the hearing before this Court Mr. Burney has pointed out that, although the trial judge had dealt with the alleged mental impairment of the Petitioner in paragraphs [41] to [46] of his summing up, and proceeded to provide a summary in paragraph [47] in which he has adverted to the burden on the prosecution to prove the guilt of the accused beyond reasonable doubt, in addressing the assessors in paragraph [48] of the summing up regarding the possible opinions they may form as regards the guilt of the Petitioner for attempted murder as well as for alternative verdicts for lesser offences such as causing grievous harm, damaging property and drunk and disorderly behaviour, the trial judge has failed to refer to the possibility that they may form an opinion based on the Petitioner's alleged mental impairment.

[39] In my opinion, the said omission on the part of the trial judge arguably would have prejudiced the Petitioner, and this aspect of the matter deserves to be considered by a full Court of the Court of Appeal in addition to the grounds of appeal set out by the Petitioner in his amended petition of appeal filed in that court.

[40] In the circumstances, I would grant the Petitioner special leave to appeal, and for the reasons set out above, set aside the decision of the Single Judge of the Court of Appeal dated 16th April 2014 and remit this appeal to the Court of Appeal for determination by a properly constituted bench of that court.

Hon. Justice Ekanayake
[41] I have read the draft judgment and agree with the reasoning and conclusions.

Hon. Justice Calanchini
[42] I agree that the Petitioner's appeal should be remitted to the Court of Appeal for determination pursuant to section 35(3) of the Court of Appeal Act.

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Hon. Justice Saleem Marsoof
Justice of the Supreme Court

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Hon. Madam Justice Chandra Ekanayake
Justice of the Supreme Court

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Hon. Justice William Calanchini
Justice of the Supreme Court