Vaqewa v State [2015] FJSC 21; CAV5.2015 (20 August 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA

CRIMINAL PETITIONS NO. CAV 5 OF 2015
and CAV 29 of 2014
(Court of Appeal AAU 119 of 2011
and AAU 38 of 2013)
(High Court HAA 18 of 2010L)
(Magistrates Court Criminal No.889 of 2008)

BETWEEN:

ERONI VAQEWA and
ASELAI WAQANIVALU
Petitioners

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 : Petitioners in person
Mr M Delaney for the Respondent

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

JUDGMENT

Marsoof JA

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

Ekanayake JA

[2] I also agree with the judgment of Calanchini JA.

Calanchini JA

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

[4] The Petitioners were charged with one count of robbery with violence contrary to section 293(1)(a) of the Penal Code Cap 17. Following a trial in the Magistrates Court at Lautoka the Petitioners were convicted and subsequently sentenced on 18 May 2010. The first Petitioner Vaqewa (the second accused and second appellant in the courts below) was sentenced to a term of imprisonment of seven years and the second Petitioner (the first accused and first appellant in the courts below) was sentenced to a term of imprisonment of 6 years and 6 months. The Magistrate ordered that the time spent in remand should be deducted from the sentences ordered. This meant that the Petitioner Vaqewa's sentence was to be reduced by 7 months and the Petitioner Waqanivalu's sentence was to be reduced by 2 months.

[5] Both Petitioners appealed to the High Court against their convictions and sentences. The appeals were timely. The learned High Court Judge dismissed both of the Petitioners' appeals against conviction and sentence.

[6] The Petitioners then sought to appeal the decision of the High Court to the Court of Appeal. The Petitioners were faced with two problems when they decided to appeal to the Court of Appeal. The first problem for them was the time limit prescribed by section 26(1) of the Court of Appeal Act Cap 12. The Petitioners were required to file and serve their notices of appeal within 30 days of the date of delivery of the decision of the High Court. The High Court judgment was delivered on 22 September 2010. The first Petitioner (Vaqewa) filed his appeal about 2 years out of time and the second Petitioner (Waqanivalu) was just over 1 year out of time. Under section 26(1) of the Court of Appeal Act the Court may at any time extend the time within which a notice of appeal may be given.

[7] It was therefore necessary for the Petitioners to apply for an enlargement of time within which they could file their notices of appeal. Pursuant to section 35(1) of the Court of Appeal Act the power of the Court to enlarge time may be exercised by a justice of appeal. It was on that basis that the application came before a justice of appeal for hearing on 27 May 2014. His Ruling was delivered on 6 June 2014.

[8] The factors that are considered by a court when determining an application for an enlargement of time are well settled and were clearly stated by the Supreme Court in Kumar and Sinu –v- The State (CAV 1 of 2009; 21 August 2012). Apart from the length of the delay and the reasons for that delay, the court also considers whether there is a ground of merit justifying the appellate court's consideration or, where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed. The court will also consider whether any unfair prejudice might be caused to the Respondent if the appeal were to proceed. However the principle involved is whether it would be just in all the circumstances to grant or refuse the application.

[9] The learned justice of appeal when considering whether the appeal would probably succeed then turned his mind to the second problem confronting the Petitioners. The Petitioners' right to appeal to the Court of Appeal against a decision of the High Court given in the exercise of its appellate jurisdiction is governed by section 22 of the Court of Appeal Act. The right to appeal in such cases is restricted to any ground of appeal that involves a question of law only.

[10] The grounds of appeal upon which the Petitioners intended to rely in the event that an enlargement of time was granted were set out in the learned Justice of Appeal's decision:

"Ground One

The Learned Appellate Judge erred in law when he did not rule that the Learned Trial Magistrate had wrongly allowed dock identification of the Appellants which was prejudicial.

Ground Two

The Learned Appellate Judge erred in law when he did not rule that the identification of the Appellants in the Police Station was without their consent and that there was no evidence from the Police Officer who was present during the identification of the Appellants that the identification was carried out fairly and properly.

Ground Three

The Learned Appellate Judge erred in law when he failed to consider that the Learned Trial Magistrate had given no weight to the unsworn evidence of the First Appellant when the Appellant and put forward his defence.

Ground Four

The Learned Appellate Judge erred in law when he did not consider that although the confession had been excluded the Learned Trial Magistrate had already heard the confession which was led in evidence hence a substantial miscarriage of justice had occurred."

[11] The learned justice of appeal concluded that none of these grounds involved a question of law only and therefore proceeded to dismiss the appeals under section 35(2) of the Court of Appeal Act on the basis that the appeal was bound to fail because there was no right of appeal.

[12] The Petitioners now apply to this Court for leave to appeal against the decision of the justice of appeal which for the purposes of section 98(3)(b) of the Constitution is regarded as a final judgment of the Court of Appeal. (Tubuli –v- The State CAV 9 of 2006; 25 February 2006 and Naisua –v- The State CAV 10 of 2013; 20 November 2013).

[13] It would appear that the typed document on page 5 of the Supreme Court Record (SCR) is to be regarded as a timely petition filed on behalf of both Petitioners. The document is not signed and there is no affidavit filed by either Petitioner. Subsequently, amended petitions have been filed by both Petitioners. The Petitioners have also filed written submissions. Although there are a number of procedural shortcomings in relation to compliance with the Supreme Court Act and Rules, in the interests of justice I propose to consider whether the Petitioners should be granted leave to appeal. In order to obtain leave from this Court, as is required by section 98(4) of the Constitution, the Petitioners 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."

[14] In Naisua –v- The State (CAV 10 of 2013; 20 November 2013) this Court at paragraph 32 accepted that where the petitioners' 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 Petitioners are not granted leave to appeal to this Court. In deciding whether to grant leave it is necessary to consider (1) whether the Petitioners' appeals were properly before the Court of Appeal and (2) whether the appeals were curtailed by a wrong application of the law.

[15] In this case the two questions are to some extent merged. The Petitioners' appeals in the Court of Appeal were out of time by at least a year in respect of both Petitioners. Their appeals were, therefore, not properly before the Court. It was necessary for the Petitioners to obtain from the Court of Appeal leave to file their appeals out of time by way of an application for an enlargement of time. It was in the course of considering that application that the learned Judge found that none of the grounds of appeal involved a question of law alone as was required by section 22 of the Court of Appeal Act. The immediate conclusion from that finding was that the appeals did not satisfy the test for an enlargement of time (Kumar and Sinu –v- The State – supra). The result was that the application for an enlargement of time should have been refused. It would appear that the learned judge then proceeded to dismiss the appeal under section 35(2) of the Court of Appeal Act on the basis that there was no right to appeal.

[16] The material filed by the Petitioners has been drafted without the benefit of legal assistance. The submissions filed by the Respondent clearly identify the issues in the Petition in a fair and balanced manner. It is those submissions upon which the question of whether leave should be granted will be considered.

[17] On page 17 of the transcript of proceedings in the Magistrates Court, the following appears under the heading "Order" (subsequently signed by the Magistrate on page 18).

"Thus I explain the right of the Accused to either give evidence from the Accused box without being cross-examined OR to give evidence from the witness box on oath, subject to cross-examination. Further I explain the Accused the right to call witnesses.

1st Accused says that he will give unsworn evidence from the dock.

. . .

2nd Accused is again explained that if he wants he can give evidence from the dock without being subject to cross-examination OR he can give evidence from the witness box on oath subject to cross-examination OR he can call witnesses.

2nd Accused says that he will remain silent and will not call any witnesses."

[18] These directions to the Petitioners were given by the learned Magistrate on 25 February 2010. It is apparent that the directions were not in compliance with the provisions of the Criminal Procedure Decree 2009 (as amended) which came into effect on 1 February 2010. Section 179 of that Decree appears in Part XIII dealing with "Procedure in Trials before Magistrates Court" and states:

"(1) At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require the making of a defence, the court shall:

(a) again explain the substance of the charge to the accused; and
(b) inform the accused of the right to give evidence on oath from the witness box and that, if evidence is given, the accused will be liable to cross-examination; and
(c) ask the accused whether he or she has any witnesses to examine or other evidence to adduce on his or her defence; and
(d) _ _ _ "

[19] Both this provision and the directions given by the learned Magistrate give rise to a number of significant issues. The first issue is that when the Criminal Procedure Decree was published it did give the accused the right to make an unsworn statement. That was the position as at 1 February 2010. However the Criminal Procedure (Amendment) Decree 2010 dated 9 February 2010 removed that right. The amending Decree was deemed to have come into effect on the date of commencement of the Criminal Procedure Decree 2009, i.e. 1 February 2010. (see section 1(2) of the amending Decree).

[20] The second issue is that it is not expressly stated in section 179 that the Magistrate is required to advise the accused of his common law right that he can remain silent and not say anything. Although it may be argued that it is implied in the wording of the section, in my judgment such a right should be expressly stated to an unrepresented accused.

[21] The third issue is that it follows that the learned Magistrate has erred in law by informing the Petitioners that they have a right to make an unsworn statement. It is also arguable that he has erred in law by not expressly advising them of their right to remain silent. The Magistrate appears also to have erred in law by not again explaining the substance of the charges to the Petitioners.

[22] The Respondent acknowledges that the wording of ground 3 of the Petitioners' notice in the Court of Appeal did not raise a ground involving a question of law alone and that as a result the learned justice of appeal had not erred. I agree with the Respondent's submission, however, that differently worded, the application could well be said to have raised a ground involving a question of law only. In my opinion the directions given on page 17 of the Magistrates Court Record were given to both Petitioners and were wrong in law.

[23] It is on the basis of what has been said above that in the event that leave is not given by this Court a substantial and grave injustice may otherwise occur. There is also merit in the Respondent's submissions that the Petitioner Waqanivalu is at risk of a further substantial and grave injustice on account of the manner in which the learned Magistrate considered the unsworn statement during the course of his judgment.

[24] In conclusion the Petitioners can be said to have raised a ground of appeal that involves a question of law alone. As a result a substantial and grave injustice will occur if leave to appeal to this Court is not granted. I would grant leave to appeal and allow the appeal. In my view the decision of the learned Judge dismissing the Petitioners' appeals to the Court of Appeal should be quashed. The Petitioners' application for an enlargement of time should be remitted to the Court of Appeal as a renewed application pursuant to section 35(3) of the Court of Appeal Act.

Orders:

1. Leave to appeal is granted.

2. Appeal is allowed and the orders of the Court of Appeal are quashed.

3. The Petitioners' application for an enlargement of time to appeal is 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