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Rokobukai v State [2015] FJSC 20; CAV0023.2014 (20 August 2015)

IN THE SUPREME COURT OF FIJI
APPELLATE CRIMINAL JURISDICTION


Criminal Petition No. CAV 0023 Of 2014
(On appeal from Court of Appeal No. AAU 0020 of 2011)


BETWEEN:


SAULA ROKOBUKAI
Petitioner


AND:


THE STATE
Respondent


CORAM : Hon. Chief Justice Anthony Gates, President of the Supreme Court
Hon. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Madam Justice Chandra Ekanayake, Judge of the Supreme Court


COUNSEL : Mr. A. Vakaloloma for the Petitioner
Mr. M. Delaney for the Respondent


Date of Hearing : 11 August 2015
Date of Judgment : 20 August 2015


JUDGMENT OF THE COURT


Gates, P
I have read the judgment of Ekanayake J in draft and I concur with her Ladyship's opinion that the petition must be refused, for the reasons set out in the judgment.


Justice Saleem Marsoof
I also have read the judgment of Ekanayake J and I agree with her Ladyship's conclusion.


Justice Chandra Ekanayake


Introduction


  1. The petitioner by a document dated 5/7/2014 with his signature addressed to the President of the Court of Appeal (which appears to have been received by that Court on 6/8/2014) had sought leave to appeal before a Full Court against the dismissal of his application for leave to appeal by a single Justice of the Court of Appeal. It is observed that the Supreme Court Registry by its letter addressed to the petitioner dated 8/10/2014 had informed him that the aforementioned application of his filed on 6/8/2014 was acknowledged and he will be advised of the outcome in due course.
  2. At the listed hearing on 11/8/2015, this Court however, proceeded to consider the said application of the petitioner as an application seeking special leave to appeal out of time preferred against the judgment of the single Judge of the Court of Appeal dated 5/11/2012, that affirmed the appeal preferred against his conviction. This approach was adopted by Court solely with the view to avoid any probable prejudice that would be caused to him. No objection was raised for the same by the counsel who appeared for the respondent.
  3. The petitioner was tried in the High Court of Fiji at Labasa in Criminal Case No. HAC 17of 2010 on the following charge:-

Statement of Offence

MURDER: Contrary to Section 237 of the Crimes Decree No.44 of 2009.


Particulars of Offence

SAULA ROKOBUKAI and another between the 28th day of April 2010 and the 29th day of April 2010 at Raranikawai, Labasa in the Northern Division, murdered SUSHILA DEVI d/o Ragubar.


  1. The petitioner had pleaded guilty to one count of murder before the learned High Court Judge sitting in the High Court at Labasa. By his sentencing order dated 15/12/2010, the petitioner was sentenced to life imprisonment with a non-parole term of 12 years. In his sentencing order, the learned High Court Judge appears to have considered that the petitioner was:-

Further he had considered the following as aggravating factors;-


(i) The pre-meditation involved to take away human life,

(ii) Wanton regard shown for human life when the plan was executed to kill the victim,

(iii) The victim was a vulnerable person of 50 years of age and a widow who was living alone with her young child,

(iv) The impossibility to determine the long term effect of the crime on the victim's child who witnessed her mother being killed.

Having given due regard to the above factors the learned High Court Judge has proceeded to fix a non-parole period of 12 years.


Proceedings Before the Court of Appeal


  1. The petitioner had lodged a Notice of Appeal against conviction and sentence dated 7/1/2011 which had been received by the Registry in Labasa on 13/1/2011. The learned Justice of the Court of Appeal in paragraph 2 of his judgment had clearly stated that he had accepted the above Notice of Appeal was one filed within the time prescribed by Section 26 of the Court of Appeal Act, although it was initially delivered to the wrong Registry. In the above Notice of Appeal, the petitioner had raised 8 grounds of appeal, 7 of which were grounds of appeal against conviction and one in relation to the appeal against sentence. By a document filed on his behalf on 11/7/2012 following amended grounds of appeal too had been raised;-

That the learned High Court Judge had erred with regard to the following:


  1. failure to consider adequately or at all law relating to joint enterprise particularly under Section 22 of the Penal Code,
  2. failure to consider the evidence regarding joint enterprise,
  3. failure to consider the evidence to direct himself on the law relating to manslaughter,
  4. failure to consider or to direct himself on the possibility of manslaughter being an alternative verdict,
  5. failure to direct himself on the requirement to be satisfied beyond reasonable doubt of the guilt of the appellant paying due regard to the evidence and confession of a guilty plea,
  6. failure to consider the appellant's rights under the constitution as he was not afforded facilities to consult a legal practitioner at the time of his arrest and/or detention,
  7. erred in law and in fact when he admitted into evidence the caution interview of the appellant in so far as he failed to consider:-

a) that the appellant's submission was due to threats made on the appellant's life during interrogation, and

b) that the guilty plea was equivocal because the caution interview was conducted under threat and force, and

c) the facts which led to the unlawful detention of the appellant from 29/4/2010 to 27/4/2010 while taking the statement, and

d) that the inducement held out by the police officers during the arrest, interrogation and the promises made to the appellant before he made his statement.


  1. It is manifest from paragraph 4 of the impugned judgment of the Court of Appeal that the learned Justice was satisfied that amended grounds of appeal did not raise any issue in relation to the appeal against sentence. It is also noted that at the hearing, the appeal preferred against sentence was not pursued and only the application for leave to appeal against conviction was proceeded with. The learned Justice has further observed that the principal claim of the appellant was that his plea of guilty was equivocal since it was entered on the basis of admissions in the caution interview that were made under duress and threats of violence.
  2. The learned Justice of the Court of Appeal whilst giving due regard to submissions and the line of authorities on tendering of guilty plea, had concluded that there was nothing on record that would support the appellant's claim that his early guilty plea was equivocal or that the guilty plea was ambiguous (see para 13 of the impugned judgment).

Enlargement of Time


  1. Although no specific provisions are found in the Supreme Court Rules conferring the power to this Court to consider enlargement of time applications, the principle elucidated in Josua Raitamata v The State; CAV 0002 of 2007, decided on 25/2/2008 would lend assistance in this regard. In the above case this Court stated that:

"The High Court Rules do provide for that court to enlarge the time prescribed by any provision of those Rules for taking any step. On that basis it may be accepted that there is a general power in the Supreme Court to extend time limit for filing a petition for special leave to appeal against a decision of the Court of Appeal."


Thus it is clear that Rule 46 of the Supreme Court Rules can be used to derive the necessary jurisdiction to deal with enlargement of time applications. Rule 46 of that Supreme Court rules 1998 thus reads as follows:-


"The High Court Rules and the Court of Appeal Rules and the forms prescribed in them apply with necessary modifications to the practice and procedure of the Supreme Court."


  1. When considering the length of the delay it would be of importance to consider the pronouncement in the case of Edwin Rhodes [1910] 5 Cr. App. R.35 at p36. This being a case where an application for extension of time for leave to appeal was made by an applicant who was convicted for manslaughter, it was observed that;-

"it must not be taken for granted that an extension of time will be allowed as a matter of course without satisfactory reasons."


  1. Further, in a Full Court decision of New South Wales namely – R. v Albert Sunderland [1927] NSWStRp 78; [1927] 28 SR (NSW) 26; which also being a case involving an application for extension of time after conviction, the court held as follows:

"(1) – that want of means was not a sufficient ground on which to base the application, and


(2) – that in view of the delay in applying "very exceptional circumstances would have to be established before the court would be justified in granting the application."


  1. It is noteworthy to reproduce the observations of the Judicial Committee of Privy Council in Ratnam v Kumarswamy (164) 3 All.ER 933 at 935, which was to the following effect:-

"The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion."


  1. In an enlargement application to determine whether the interests of justice requires allowing extension of time certain factors have to be examined. Those factors as laid down in the case of Kamlesh Kumar v The State; Criminal Appeal No. CAV 001/2009; by His Lordship the Chief Justice, Gates are as follows:-
  2. Now I shall advert to consider the extent of applicability of the above factors to this case.

The reason for the failure to file within time:


  1. At the hearing before this Court, the counsel for the respondent vehemently objected to enlargement of time on the ground that this application had been filed more than 1 year and 7 months after the expiration of the statutory period of 42 days spelt out in Rule – 6(a) of the Supreme Court Rules of 1998. The only reason given by the petitioner's counsel in this regard was that the draft application was handed over to the petitioner to be filed after signing the same. His submission was that the delay was occasioned due to the reason that the petitioner had no control of himself or what needed to be done as he was in the prison.
  2. His next submission was that the difficulty in calculating time for legal vacation from 13/12/2012 to January 2013. However the present application of the petitioner has been received only on 6/8/14 and his complaint regarding calculating the legal vacation appears to be in respect of a period prior to 7 months from 6/8/2014. Thus I am not inclined to give the benefit of that submission to the petitioner. I therefore hold that the above reasons are insufficient to explain an inordinate delay of more than 1 year and 7 months.
  1. The line of authorities here would amply demonstrate that if the delay is a very short one generally the discretion of the court could be exercised in favour of the petitioner. In enlargement applications the length of the delay has been extensively dealt with, in some of the recent Fiji Supreme Court decisions. In the case of Eddie McCaig v Abhi Manu; CBV 002/2012 (27th August 2012); Gates, P observed as follows:

"[22] The delay here was very short, a mere 2 days. In C M Stillevoldt BV v EL Carriers (1983) 1 WLR 207 it was 2 weeks, and the discretion was exercised in favour of the appellant. In Palata it was 3 days and Ackner CJ said at p.521b;


...."we expressed the opinion that, in cases where the delay was very short and there was an acceptable excuse for the delay, as a general rule the appellant should not be deprived of his right of appeal and so no question of the merits of the appeal will arise. We wish to emphasise that the discretion which fell to be exercised is unfettered, and should be exercised flexibly with regard to the facts of the particular case."


  1. Despite the fact that the above observations were made in an enlargement application in a civil case, yet if the delay was very short and there was an acceptable excuse for the same, as a general rule the appellant should not be deprived of his right of appeal. Therefore it is necessary to consider all the facts and circumstances in each case when exercising the discretion of the Court in granting an enlargement of time.
  2. His Lordship Gates, P in Kamlesh Kumar's case, referring to the case of Viliame Cavubati; AAU 0022.03S said that the rights of appeal are granted by statute within a framework of Rules. Enlargement normally can be granted because of specific powers granted to the appellate courts. No doubt because of a need to bring litigation to finality, once there is non-compliance, the court can only exercise a limited discretion (see paragraph 7 of the Kamlesh Kumar case).

Any ground of merit justifying the Appellate Court's consideration


  1. On a careful consideration of the impugned judgment of the Court of Appeal the learned Justice appears to have given cogent reasons with regard to his conclusion in tendering of guilty plea by the petitioner. The petitioner having agreed with the summary of facts that was read out to Court by the prosecutor, the petitioner was charged as the primary principal participant to cause the death of the deceased and the admitted facts clearly indicated that the petitioner alone attended at the deceased's home on the night in question. Further the co-accused was an accomplice and had been charged accordingly. All the above matters lead to the conclusion that the Justice of the Court of Appeal was not in error when he arrived at his final conclusion in the impugned judgment. On a careful examination of the proceedings before the lower court there is nothing to infer that the petitioner was deprived of a fair trial. Thus I hold the view that this application lacks grounds of merit justifying the appellate court's consideration.

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


  1. The delay here is a quite substantial one and it is inordinate also. The main grounds of appeal urged by the petitioner's counsel could be summarised as follows:-
    1. The learned Justice of Appeal failed to appreciate that the appellant was unrepresented,
    2. The learned Justice of Appeal failed to consider the petitioner's failure to understand the legal consequences of his decision to plead guilty,
    1. The learned Justice of Appeal erred when he stated that there was nothing on record to support the petitioner's claim that his guilty plea was equivocal.
  2. It is evident from page 162 of the Supreme Court record that only on the 1st mention date in the High Court that is 13/5/2010, the petitioner (who was named as the first accused there) had been unrepresented. Right to counsel had been explained by Court to the petitioner and had fixed for mention on 27/5/2010. From 27/5/2010 except on 9/8/10 up to the conclusion of the proceedings in the High Court the petitioner had been represented by counsel.
  3. At the listed hearing before this Court, petitioner's counsel laid heavy stress on the fact that the learned Justice of Appeal failed to consider the petitioner's failure to understand the legal consequences of pleading guilty. In this regard it would be pertinent to refer to the proceedings had before the High Court Judge from 7/12/2010 to 10/12/2010 which being the date case was fixed for sentence on 15/12/10 at 9.30 am.

Tuesday 7/12/2010 at 9.30 am


Mr. T. Ravuniwa for State

Ms. M. Lemaki (Duty Solicitor) for 1st and 2nd Accused

Information read / explained.

1st Accused – Understand charge

Pleads guilty

2nd Accused – Understand charge

Plead not guilty.


Court – serious charge. Carries maximum penalty of life imprisonment. Will give some time to the first accused to consider the consequences of pleading guilty before his plea is accepted.


Mention on 10/2/10- at 9.30 am for facts and mitigation. Bail ext.


Friday 10/12/2010 at 9.30 am


Mr. T. Ravuniwa for State

Ms. M. Lemaki for 1st and 2nd Accused

M/L – I have advised the first accused of his rights and consequences of pleading guilty to murder. The accused wishes to make representation to the court in person.

1st Accused – I wish to plead guilty. I am pleading guilty freely and voluntarily. That is without any pressure or promise. I understand the consequences of my guilty plea. Legal Aid can mitigate on my behalf.

Court – Information read and explained.

1st Accused – Understand charge.

Plead guilty.


T/R – Tender facts. Read out.

1st Accused – Admit facts.

T/R – Nil previous convictions.

M/L – Tender written mitigation. Read out.

Court – Sentence on 15/12/10 at 9.30 am. Bail ext.


  1. The above would amply demonstrate the steps the learned High Court Judge had taken to ensure that the guilty plea was unequivocal, despite the petitioner been represented by counsel. Further it appears that the facts were read out and agreed, and there is no ambiguity.
  2. The Learned Justice of Appeal has correctly observed in paragraph 9 of the judgment that the learned High Court Judge, exercising commendable caution, gave sometime to the petitioner to consider the consequences of pleading guilty before his plea was accepted. The said para - 9 of the judgment is reproduced below:

"9. The record shows that the Appellant and a co-accused appeared before the Learned Judge on 7 December 2010. Both accused were represented by the same Counsel. The information was read and explained. The Appellant personally indicated that he understood the charge and pleaded guilty. So did the co-accused. The Learned Judge indicated to the Appellant and the co-accused that the charge of murder was serious and carried a maximum penalty of life imprisonment. As a result the Learned Judge, exercising commendable caution, gave some time to the Appellant to consider the consequences of pleading guilty before his plea was accepted."


  1. On the material available in the High Court record we are satisfied that the guilty plea of the Petitioner was unequivocal and unambiguous. For the aforecited reasons we are satisfied that there exist no grounds of appeal that will probably succeed.

If time is enlarged will the Respondent be unfairly prejudiced?

  1. This would entirely depend on facts and circumstances of each case. In this case the delay is even more than 1 year and 7 months which is undoubtedly an inordinate one. Further the petitioner has failed to offer any acceptable, reasonable explanation for the delay. If time for appeal is enlarged that would obviously deprive the ability of the prosecution to call its case again. Further in this case there is no evidence of an unfair trial, equivocal or ambiguous plea or no meritorious ground in existence demanding such consideration. Viewed in the above context it is concluded that if time is enlarged, great prejudice will be caused to the petitioner.

Special Leave to Appeal


  1. It is amply clear that the jurisdiction of the Supreme Court with respect to Special Leave to appeal is embodied in Section 7 of the Supreme Court Act No. 14 of 1998.

"Section 7(1) of the Supreme Court Act No. 14 of 1998 provides as follows:-


In exercise of its jurisdiction under Article 122 of the Constitution [see new Section 98 of Constitution 2013] with respect to Special Leave to Appeal in any civil or criminal matter, the Supreme Court may, having regard to the circumstances of the case –


(a) refuse to grant special leave to appeal;

(b) grant special leave and dismiss the appeal or instead of dismissing make such orders as the circumstances of the case require; or

(c) grant special leave and allow the appeal make such other orders as the circumstances of the case require".

Section 7(2) thereof sets out as follows:


In relation to a criminal matter, the Supreme Court must not grant special leave to appeal unless –


(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) substantial and grave injustice may otherwise occur.

Section 7(3)..."


26. A plain reading of the above Section 7(2) which relates to criminal matters would show that the Supreme Court must not grant special leave to appeal in a criminal matter unless the court is satisfied that a question of general legal importance is involved, or a substantial question of principle affecting the administration of criminal justice is involved or substantial and grave injustice may otherwise occur.


27. Further I am mindful of the observations made by this court in Dip Chand v State; CAV 004 of 2010 (9th May 2012) to the following effect:


"...Given that the criteria is set out in Section 7(2) of the Supreme Court Act No. 14 of 1998 are extremely stringent, and special leave to appeal is not granted as a matter of course...".


28. It is noteworthy that this Court being the final Appellate Court, special leave to appeal should be granted in cases which fulfil the criteria enunciated in Section 7(2) of the Supreme Court Act or in a rare situation there exists any remediable injustice compelling the intervention of this court.


29. Viewed in the above context the length of the delay in this case is an inordinate and also a very substantial one. For the reasons enumerated above the petitioner has totally failed to offer any acceptable or any reasonable explanation for the delay. The Court is therefore inclined to the view that the application for enlargement of time lacks merit and same is hereby refused. The judgment of the Court of Appeal dated 5/11/2012 is affirmed.


The Orders of the Court:

1. Petitioner's application for enlargement of time is refused.

  1. Special leave to appeal is also refused.
  2. The judgment of the Court of Appeal dated 5/11/2012 is affirmed.
  3. Conviction and sentence also affirmed.

..........................................................
Hon. Chief Justice, Anthony Gates
President, Supreme Court


.................................................
Hon. Justice Saleem Marsoof
Justice of the Supreme Court


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


Solicitors:


Vakaloloma and Associates for the Petitioner
Office of the Director of Public Prosecutions for the Respondent

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