Vakatale v State [2015] FJSC 17; CAV8.2014 (20 August 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA

CRIMINAL PETITION NO. CAV 8 OF 2014
(Court of Appeal AAU 104 of 2010)
(High Court HAC 58 of 2009)

BETWEEN:

ROPATE VAKATALE
Petitioner

AND:

THE STATE
Respondent

Coram : The Hon Mr Justice Marsoof, Judge of the Supreme Court
The Hon Madam Justice Ekanayake, Judge of the Supreme Court
The Hon Mr Justice Calanchini, Judge of the Supreme Court

Counsel : Mr J Savou for the Petitioner
Mr M Delaney for the Respondent

Date of Hearing : 10 August 2015
Date of Judgment : 20 August 2015

JUDGMENT

Marsoof JA

[1] I have had the advantage of reading the draft judgment of Calanchini JA and agree with his reasoning and conclusions.

Ekanayake JA

[2] I agree with the reasoning and conclusions of Calanchini JA.

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 (the Act).

[4] Following a trial in the High Court before a Judge sitting with three assessors the Petitioner was convicted on one count of robbery with violence contrary to section 293(1) (a) of the Penal Code Cap 17, one count of criminal intimidation contrary to section 330(a) of the Penal Code and on one count of resisting arrest contrary to section 247(b) of the Penal Code. On 26 November 2010 the Petitioner was sentenced to a term of 8 years imprisonment for count 1, 18 months for count 2 and 6 months imprisonment for count 3. The sentences were ordered to be served concurrently being a total sentence of 8 years with a non parole term of 7 years.

[5] By letter dated 4 December 2010 the Petitioner gave timely notice of his intention to appeal to the Court of Appeal against conviction and sentence. That letter set out a number of grounds of appeal to which were added further grounds in a letter received by the Registry on 23 March 2011. The grounds of appeal were modified in a notice of amended petition of appeal dated 3 March 2014 filed by the Legal Aid Commission on behalf of the Petitioner. The Petitioner's grounds of appeal against conviction, as amended, were:

"1. The Learned Trial Judge erred in law and in fact in proceeding to trial with fore knowledge that the petitioner did not have the necessary disclosures to enable him to prepare adequately in his defence.

2. The Learned Trial Judge erred in law when he failed to properly assist the petitioner as a result of his unrepresented status by failing to direct the assessors and himself on the following matters:

1. The petitioner was unable to re-direct the Trial Judge following summing up as a result of his unrepresented status;
2. The petitioner was unable to challenge the alleged confessions contained in the caution interview as a result of his unrepresented status;
3. The petitioner was unable to challenge the tendering of the carbon copy of the caution interview.
   

3. The Learned Trial Judge erred in law and fact when he allowed the carbon copy of the caution interview to be tendered as evidence in absence of a formal enquiry.

4. The Learned Trial Judge erred in law in convicting the petitioner in the absence of corroborating evidence independent of the alleged confessions contained in the caution interview."

[6] The grounds of appeal against sentence was:

"The Learned Trial Judge erred in law when he imposed a non-parole period when the imposition of the non-parole period of offended against the remission as allowed in the Prisons and Corrections Act 2006."

[7] In a Ruling delivered on 7 April 2014 the learned Judge considered each of the grounds of appeal and concluded that none of the grounds raised an arguable point. He then went on to find that none of the grounds could possibly succeed and that as a result the appeal was frivolous. The Judge dismissed the appeal pursuant to section 35(2) of the Act.

[8] The Petitioner subsequently filed two documents in the Supreme Court Registry indicating his intention to appeal to the Supreme Court. The second of the documents was filed on or about 4 May 2014 and was as a result filed within the 42 days time limit presented by Rule 6 of the Supreme Court Rules. This document was the formal petition for special leave to appeal against conviction and sentence.

[9] It would appear that the Petitioner has not filed an affidavit verifying the facts in the petition as required by Rule 5(3) of the same Rules. Although there has been non-compliance with the Rules, the consequences for such failure are at the discretion of the Court under Rule 20. In this case it is in the interests of justice to proceed to consider the Petition for leave in the absence of a verifying affidavit.

[10] In its submissions the legal practitioners for the Petitioner seek to challenge the Ruling of the learned Justice of Appeal on the basis that he had erred in dismissing the Petitioner's appeal on the basis that the appeal was frivolous. However Counsel for the Petitioner informed the Court that reliance for that contention will be the first ground of appeal raised in the Court of Appeal. That ground relates to the late receipt of disclosures by the Petitioner from the Legal Aid Commission thereby depriving him of the opportunity to adequately prepare in his defence.

[11] 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 on 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."

[12] 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. It is therefore 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.

[13] In this case it is not disputed that the Petitioner's appeal was properly before the Court of Appeal. The only issue that now arises is whether the appeal was curtailed by a wrong application of the law when the learned Judge dismissed the appeal under section 35(2). It appears that there is no challenge to the jurisdiction given to the learned Judge to dismiss an appeal under section 35(2) of the Act. The question to be determined is whether the Judge erred in dismissing the appeal as frivolous.

[14] Counsel for the Petitioner indicated in the written submissions that for the purposes of the leave application in this Court the Petitioner relies only on the ground relating to the disclosures and the adequacy of time to prepare his defence. The Respondent in its submissions addresses the same issue together with the related matter of the prejudicial effect of the Petitioner's lack of legal representation at the trial.

[15] It appears not to be disputed by the parties that the Petitioner received his disclosures from the Legal Aid Commission on the morning of the commencement of the trial (which in this case commenced with a voir dire). Those disclosures had been in the possession of the Legal Aid Commission for a considerable amount of time, possibly up to a year beforehand. It may have been the case that the Petitioner had been in possession of his disclosures before they had been given to the Legal Aid Commission. Shortly before the commencement of the trial the Petitioner had been advised that the Commission had refused his application for legal aid although his disclosures were not returned to him at that time.

[16] In my judgment, on the basis that the disclosures had not been returned to the Petitioner until the morning of the trial proceedings, it was not a frivolous ground to claim that the Petitioner did not have adequate time to prepare his defence for trial.

[17] Similarly, in my judgment the three matters raised by the Petitioner in relation to his lack of representation, even if considered not to be arguable by the learned Justice of Appeal cannot reasonably be described as frivolous in the sense that they have no hope of succeeding. The Petitioner should have been given the opportunity to renew his application for leave to the Court of Appeal.

[18] I have concluded that the learned Judge has curtailed the Petitioner's appeal to the Court of Appeal by a wrong application of the law. In my judgment neither the disclosures issue nor the lack of representation grounds can be described as frivolous. Furthermore a substantial and grave injustice would occur in the event that the Petitioner were not granted leave to appeal to this Court. Therefore I would grant leave to appeal and allow the appeal. The order of the Justice of Appeal dismissing the Petitioner's appeal under section 35(2) should be quashed. The Petitioner's application for leave to appeal should be remitted to the Court of Appeal for determination as a renewed application under section 35(3) of the Court of Appeal Act.

Orders:

1. Leave to appeal to this Court is granted.

2. The appeal is allowed and the orders of the Court of Appeal are quashed.
   
3. The Petitioner's application for leave to appeal is remitted to the Court of Appeal.
   

_______________________________________

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