Dromudole v State [2015] FJSC 28; CAV0013.2013 (23 October 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA
[CRIMINAL APPELLATE JURISDICTION]

Criminal Petition No. CAV 0013 of 2013
(Court of Appeal Criminal Appeal No. AAU 095/2008)

BETWEEN:

AKUILA DROMUDOLE
PETITIONER

AND:

THE STATE
RESPONDENT

CORAM : Hon. Mr. Justice Brian Keith, Justice of the Supreme Court
Hon. Mr. Justice Gerard Dep, Justice of the Supreme Court
Hon. Mr. Justice William Calanchini, Justice of the Supreme Court

COUNSEL : Mr. S. Waqainabete for the Petitioner
Mr. M. Delaney for the Respondent

Date of Hearing : 7 October 2015
Date of Judgment : 23 October 2015

JUDGMENT OF THE COURT

Keith, J
Introduction

1. In the past, there were occasionally times when applications for legal aid were not considered by the Legal Aid Commission as promptly as they might have been. This case concerns one such occasion. The applicant, Akuila Dromudole, was due to be tried in the High Court. He was not informed that his application for legal aid had been refused until the morning of his trial. He would, therefore, have to represent himself. That was when he first got most of the bundles of disclosures, ie the bundles of those documents which the prosecution proposed to rely on at his trial. He asked the judge to adjourn the case so that he could familiarise himself with the bundles of disclosures and prepare for trial. The judge refused, and the trial went ahead that afternoon. The applicant claims that the refusal of the adjournment he requested resulted in him being denied a fair trial. I trust that I will be forgiven for referring to the applicant by his family name from now on for convenience.

The facts

2. In the light of the issue to which this application relates, it is unnecessary to set out the facts in any detail. In short, the prosecution's case was that at about 5.00 pm on Saturday 7 July 2007 a number of men wearing masks stormed into a supermarket in Tamavua. They were armed with knives, beer bottles and a pinch bar. The supermarket was full of customers at the time, mostly women and children. The men began to smash the bottles in the area where the cashiers were, and told staff and customers alike to get down. They eventually made off with a number of cash register tills containing over $21,000 in cash. Some of the customers had cash and personal effects such as mobile phones and jewellery stolen from them. None of this was seriously disputed at the trial of Dromudole and his three co-defendants. The issue was whether they had been the culprits. They all claimed that they had not been, and that they had been elsewhere at the time of the robbery.

The course of the proceedings

3. The trial. The charge on which Dromudole and his co-defendants were tried was one of robbery with violence contrary to section 293(1)(b) of the Penal Code. None of them were legally represented, and they all represented themselves. They all pleaded not guilty. The trial began on 30 July 2008. The evidence against them consisted substantially, if not exclusively, on the confessions they were alleged to have made. All the defendants challenged the admissibility of those alleged confessions, and since their admissibility depended on facts which were in dispute, the trial judge, Goundar J, held a voir dire. At the conclusion of the voir dire, the judge ruled that the confessions were admissible. The trial then proceeded in the presence of the assessors. In due course, a majority of the assessors expressed the opinion that the four defendants were guilty. The judge agreed, and gave judgment convicting them. They were sentenced on 15 September 2008. Dromudole was sentenced to 14 years' imprisonment.

4. The application for leave to appeal to the Court of Appeal. All four defendants applied for leave to appeal against their conviction. Two of the defendants also applied for leave to appeal against their sentence, but Dromudole did not do so. His appeal was limited to his conviction. He drafted the grounds himself, and they were lodged with the Registry in time. For some reason, the defendants' applications for leave to appeal were not heard for quite a while, and they were only heard by Madigan J sitting as a single judge of the Court of Appeal on 27 April 2012. We were not given an explanation for that lengthy delay, and an inspection of the court's file has made us none the wiser. In the meantime, Dromudole had wanted to amend his grounds of appeal, and he did so by a notice of application for leave to amend his grounds lodged with the Registry on 2 December 2009. I shall return later to what those grounds of appeal were. In the event, Madigan J dismissed the four defendants' appeals under section 35(2) of the Court of Appeal Act on the basis that none of their grounds of appeal had "any merit whatsoever". That was on 4 May 2012. The effect of Madigan J dismissing Dromudole's appeal under section 35(2), rather than simply refusing him leave to appeal to the Court of Appeal, was that Dromudole was deprived of renewing his application for leave to appeal to the Full Court of Appeal.

5. The petition for special leave to appeal to the Supreme Court. By a document dated 25 February 2013 addressed to the Chief Registrar of the Court of Appeal, Dromudole purported to appeal to the Full Court of Appeal against the decision of Madigan J. It was lodged at the Registry on 5 April 2013. As I have said, you cannot appeal to the Full Court of the Court of Appeal against the dismissal of an appeal by a single judge under section 35(2). You have to apply by petition to the Supreme Court for special leave to appeal to the Supreme Court. Accordingly, the Registry treated Dromudole's document of 25 February 2013 as such a petition for special leave. I shall refer to the document from now on as the petition. Since it had been lodged over 9½ months out of time, it was treated as including an application for an enlargement of time. Again, I shall refer later to what the grounds of appeal were, and what Dromudole's counsel, Mr Seremaia Waqainabete, now tells us was the reason for this lengthy delay. In the event, the petition was heard by the Supreme Court (Gates P, Hettige J and Ekanayake J) on 6 August 2014. In his judgment (with which the other two members of the court agreed), Hettige J refused to enlarge Dromudole's time for lodging his petition and consequently refused to give him special leave to appeal.

6. The application for a review. In the normal course of events, that would have been the end of the story. But there has grown up a practice of asking the Supreme Court to review a previous decision it has made. That is provided for by section 98(7) of the Constitution of Fiji, which provides: "The Supreme Court may review any judgment, pronouncement or order made by it." There is no time limit for that to be done, but the first document which the Registry received from Dromudole about a review of the previous judgment of the Supreme Court was a letter to the Chief Justice dated 8 June 2015. Again, I shall have to come back to that letter later, but the upshot was that the Supreme Court decided to give Dromudole an oral hearing of his application for a review of its previous judgment, limited to "ground 3 of your grounds of appeal, that is that you were denied the opportunity to prepare your defence adequately due to the late return of the bundle of disclosures to you on the morning of the trial proceedings". This is the court's judgment following that hearing.

The procedural hurdles which Dromudole faces

7. The grounds of appeal to the Court of Appeal. Dromudole faces three procedural hurdles before his application for a review can be considered on its merits. The first relates to his grounds of appeal to the Court of Appeal. Dromudole's original grounds of appeal to the Court of Appeal did not complain about the judge's refusal to adjourn the trial so that he could familiarise himself with the bundles of disclosures and prepare for the trial. But his amended grounds of appeal came close to doing that, though not quite. Ground (ii) read:

"... the learned trial judge erred in law and in fact when his lordship denied an adjournment for time for appellant to find counsel of choice."

So although Dromudole was challenging the judge's refusal of an adjournment, he was saying that he had wanted an adjournment to instruct counsel (presumably privately), rather than because he needed time to familiarise himself with the bundles of disclosures and prepare for the trial.

8. It does not look as if Madigan J realised that the challenge was to the judge's refusal to adjourn the case. In relation to this ground of appeal, he said:

"The second, third and fourth applicants had applied for representation by the Legal Aid Commission. All were refused and then disclosures returned to them. In numerous mentions of the case since October 2007, all of the applicants (the then accused) were told of their rights to legal representation. The second applicant having been rejected on the first day of trial was advised that the court would use every endeavour to assist him in his defence, he being unrepresented. All of the applicants had previous convictions and could not be said to be unaware and unsophisticated in matters of defence. Their ground of appeal that they were prejudiced by lack of legal representation cannot be made out."

The references to the second applicant were references to Dromudole. So what Madigan J was saying was that Dromudole had had a fair trial even though he had had to represent himself. He did not address the question whether Dromudole had been disadvantaged at his trial because he had not had the chance before the trial began to familiarise himself with the bundles of disclosures and prepare for the trial. So although Dromudole can be criticised for not spelling out in his amended grounds the reason which he now says he wanted the adjournment for, the real problem was that Madigan J did not realise that it was the refusal to grant the adjournment which was at the heart of this ground of appeal.

9. The delay in the lodging of the petition for special leave. The more serious hurdle which Dromudole faces is the delay in the lodging of the petition for special leave. As I have said, the petition was not lodged with the Registry until 5 April 2013, about five weeks after Dromudole had written it. It would not be right to hold that lapse of time against him. The petition had to be typed by the prison authorities, and they were responsible for getting it to the Registry. The relevant delay is the delay from 15 June 2012 (being 42 days after the decision of Madigan J) and 25 February 2013 when the petition was handed to the prison authorities, a delay of a little over 8 months. As far as I can tell, no enquiry had ever been made of Dromudole prior to the hearing before us of what the reason for the delay was, and that may in part have been the reason why Dromdole himself had not offered an explanation for the delay. In such a case, the affidavit which is required to be lodged verifying the allegations in the petition would have been the obvious time to explain the delay. No affidavit was lodged.

10. We wanted Dromudole to be given another chance to explain the delay, and we asked Mr. Waqainabete what his instructions from Dromudole were. His instructions were that Dromudole had not known that he could appeal to another level. There had been nothing in Madigan J's judgment which had said that he could. He had only discovered in early February 2013 that he had a further right of appeal. We are highly sceptical about that. It is not as if Dromudole is entirely uneducated. He had been educated up to level 6, and at the time of his arrest he was in the second year of an electronics course at the Fiji Institute of Technology. And it would have been very odd if he had not learned on the prison grapevine that an appeal lay from the Court of Appeal to the Supreme Court.

11. My scepticism about the reasons Dromudole now gives for the delay in filing the petition could well have been increased by his delay in applying for this review. The letter dated 8 June 2015 which he wrote to the Chief Justice complained of why he had heard nothing from the Registry about his application for a review. He claimed that he had submitted an application for a review which was dated 20 August 2014 (the day after the Supreme Court's judgment) and receipt of it had been acknowledged by the Registry on 28 August 2014. There are three difficulties with that claim:

(i) The Registry's files do not contain the letter of 20 August 2014 or the document purporting to acknowledge its receipt. The only document in the Registry's file is Dromudole's letter to the Chief Justice of 8 June 2015. The fact is that no-one has seen the letter of 20 August 2014, and the purported acknowledgment of it on 28 August was not produced at the hearing.

(ii) If the letter of 20 August 2014 had been lodged at the Registry, the Registry would have caused a copy of it to be sent to the prosecution. The prosecution has never seen a copy of it.

(iii) In the written submissions for this hearing prepared by Mr. Waqainabete, he referred to Dromudole's "petition of appeal dated 27th October 2014". I assume that he meant by that Dromudole's request for a review. But not only is there no such document in the Registry's file; the date does not match Dromudole's claim that his application for a review had been dated 20 August 2014.

All of this strongly suggests that Dromudole is falsely claiming that he applied for a review on 20 August 2014 because he thinks that otherwise he might be criticised for delaying his application.

12. Having said all that, there was not sufficient time at the hearing before us for all this to be put to Mr. Waqainabete, and it would therefore be wrong for the court to take any of it into account. It is, though, a not unimportant part of the narrative. The fact remains that (a) Dromudole's reasons for the delay in lodging his petition for special leave are unimpressive, and (b) the length of the delay is substantial. There is no suggestion that the prosecution would be unfairly prejudiced if Dromudole's time for lodging his petition was enlarged, and so the real question is whether, to use the well-known language of Kumar v The State [2012] FJSC 17 at paragraph 4, "there is a ground of appeal that will probably succeed". There is no doubt that there is such a ground of appeal, namely Madigan J's failure to consider whether there was any merit in the claim that the trial should have been adjourned.

13. The nature of the review. The third hurdle which Dromudole must overcome is that the current application is an application for a review. Such an application will always present an applicant with difficulties. It has been said that a decision of a final appellate court is one of great sanctity. It should not be disturbed save in exceptional circumstances. That is not to say that an application for a review of a previous judgment of the Supreme Court can never be granted, but it does mean that only compelling reasons will justify taking that course.

14. The argument that this is one of those exceptional cases is that the Supreme Court in its previous judgment did not address the ground of appeal that the refusal of an adjournment had resulted in Dromudole being denied a fair trial. That ground was ground 3 in the petition. The ground was not drafted as crisply as a lawyer would have drafted it, but the thrust of it was plain. It referred to the fact that shortly before his trial was due to begin, Dromudole was informed that his application for legal aid had been refused. That was when the bundles of disclosures were returned to him. He applied for an adjournment of the trial, as he put it, to "enable me to study my disclosures to prepare my defence at the trial", but that application "was refused".

15. In my opinion, the Supreme Court did not address that ground. In ground 2, Dromudole had complained that the trial judge had erred in law in ruling his confession admissible. In para 17 of his judgment, Hettige J said that he would deal with grounds 2 and 3 together. In paras 18-21, he dealt with ground 2, but he did not deal with ground 3 at all. He merely concluded in para 22 that "none of the grounds relied on by the petitioner has any merit". He never addressed the question whether the refusal of an adjournment to enable Dromudole to prepare his defence resulted in him being denied a fair trial. The fact that that ground was not addressed is, in my opinion, a sufficiently compelling reason to justify the Supreme Court now taking the exceptional course of reviewing its previous judgment, limited, of course, to ground 3.

The limits to what this review can achieve

16. As I have said, Dromudole's appeal to the Court of Appeal was dismissed under section 35(2) of the Court of Appeal Act on the basis that it was frivolous, ie that it could confidently be said that the appeal could not possibly succeed. As Calanchini P pointed out in the course of argument, the Supreme Court's function in those circumstances is (and was at the time of the previous hearing in the Supreme Court) to decide whether Madigan J erred in law in concluding that the grounds of appeal were frivolous. Since he had erred in law by not considering one of the grounds of appeal which was before him, namely that the trial judge should have allowed Dromudole's application for an adjournment, the appropriate course for the Supreme Court to take now is to quash the decision of Madigan J, and then do one of two things. One is to order another single judge of the Court of Appeal to consider the ground of appeal which Madigan J did not consider. The other is to remit the application for leave to appeal to the Full Court of Appeal, but the Supreme Court can only do that if it thinks that that there is merit in the ground which Madigan J did not consider, ie that the trial judge had erred in refusing the application for an adjournment.

17. However, the difficulty is that in his petition Dromudole did not seek to argue that Madigan J had not addressed the issue of the adjournment, or that Madigan J had been wrong to regard his grounds of appeal as frivolous. He simply argued that the trial judge had been wrong not to grant his application for an adjournment. That was the issue which Hettige J said in paragraph 17 of his judgment he would be addressing, even though in the event he did not do so. That is why the argument on this application for a review focused, not on Madigan J's approach to the question of leave to appeal, nor even on his conclusion that the grounds of appeal were frivolous, but on whether the trial judge had erred in not granting the application for an adjournment.

18. What should we do now? It would be tempting, in the exceptional circumstances of this case, for the Supreme Court to proceed to consider ground 3 on its merits. We are in just as good a position to form a judgment on its merits as another single judge of the Court of Appeal or the Full Court of Appeal would be. Indeed, we have had the benefit of full argument on the topic. But that would not be appropriate. The technically correct course is to take one or other of the two courses referred to in paragraph 16 above. Otherwise Dromudole would be deprived of the opportunity to have his case properly considered by the appropriate intermediate appellate court. It would be preferable to take the second of those two courses, but we can only do that if there is merit in ground 3. That is the issue which I now address.

The process of the trial

19. Events prior to the trial. The court record shows that Dromudole first appeared in the High Court on what was to become the charge which he eventually faced on 8 August 2007. He told the judge on 4 November that he would be representing himself at the trial, although that does not sit well with what the record then went on to say, which was: "All Accused to seek legal representation." On 11 January 2008, the date for the trial was fixed for 28 January, but on 23 January the trial date was vacated. A new trial date had not been fixed by 11 April when Dromudole told the court that he would be applying for legal aid that week. The fact that he did indeed apply for legal aid after that is not disputed, though we were not told when that was.

20. By then, Dromudole had been served with the initial bundle of disclosures. As he was not legally represented, the bundle had been served on him personally. It is unclear when that was. Mr. Mosese Korovou for the State told us that there was a note on the prosecution's file which suggested that the bundle had been served on Dromudole on 28 March 2008. He thought that that may have been a reference to an additional bundle of disclosures, but since the initial bundle of disclosures included a witness statement dated 15 March 2008, I proceed on the basis that it was indeed the initial bundle of disclosures which had been served on him on 28 March 2008. That bundle included 35 witness statements together with the records of the defendants' interviews under caution and the statements they had made when they had been charged. The bundle amounted in all to 279 pages. Dromudole would have had that bundle from 28 March 2008 until whenever after 11 April 2008 he had applied for legal aid. That is because when someone applies for legal aid, they must hand over any bundles of disclosures already served on them so that the Legal Aid Commission can make an informed assessment of their eligibility for legal aid. For part of this time, Dromudole was in custody, but it is not possible to tell from the record when he was released. The record shows that he was in custody on 3 March 2008, but it also shows him telling the judge on 11 April 2008 that he was then on bail.

21. On 19 May 2008, a new date for the trial was fixed. It was to start on 28 July 2008. However, on that date additional evidence was served. That consisted of another bundle of disclosures, and related to evidence which was relevant to the issues to be canvassed in the voir dire. The bundle consisted of 7 witness statements (none of them particularly long) and extracts from the diary of the police station at which Dromudole and his co-defendants had been interviewed. The witness statements came to 9 pages, and the extracts from the diary came to 25 pages. It does not look as if this additional evidence was served on Dromudole. Since his application for legal aid was still pending, it is likely that it was served on the Legal Aid Commission. Because of the service of this additional evidence, the trial was adjourned for two days to 30 July 2008.

22. The day the trial began. One of Dromudole's co-defendants was in custody on 30 July 2008 when the trial was due to start. He had not been brought to court that morning because he had claimed to be ill. The case was stood down to 10.45 am for the State to consider whether to apply for the severance of that defendant from the case and to proceed against the other three defendants. However, before the court adjourned, Dromudole told the judge that he was still awaiting a decision from the Legal Aid Commission on his application for legal aid. He applied for an adjournment. The court record records him as saying: "Not ready to proceed today." The judge did not rule on that application at that stage. By the time the court reconvened at 10.50 am, two things had happened. The defendant who had claimed to be ill had been brought to court, and a duty solicitor from the Legal Aid Commission had come to court as well. When the court reconvened, she told the judge that Dromudole's application for legal aid had been refused (as had the same application of one of his co-defendants). She added that the two defendants had been informed of that, and that the bundles of disclosures had been returned to them.

23. The defendant who had claimed to be ill then applied for an adjournment. He said that he was not feeling well and that he wanted to apply for legal aid. The court record does not say that Dromudole then renewed the application he had made earlier that morning for an adjournment, but since the judge had not yet ruled on that application, Dromudole's previous application for an adjournment had to be considered in the light of the fact that by then it was known that his application for legal aid had been refused, and that he would have to represent himself at a time when he had only just had the bundles of disclosures returned to him. Indeed, he had to deal with two additional bundles of disclosures served on him that day. Both of those additional bundles related to evidence which was relevant to the issues to be canvassed in the voir dire. In all, they consisted of 15 witness statements although, again, none of them were particularly long. Whether the judge was told that the defendants had been served with these two additional bundles of disclosures is not apparent from the court record.

24. The judge refused the application for an adjournment. The court record reads as follows:

"LAC has rejected the applications of 2nd, 3rd & 4th Accused persons. Two accused persons are in remand pending trial. The accused persons have been given ample opportunity to secure legal representation. Since their legal aid applications have been refused, I would ensure they get a fair trial and that they understand the proceedings. Adjournment is refused. Trial will proceed."

That is not all that happily phrased. It was not as if Dromudole had delayed in applying for legal aid. The problem was that he had been informed of the outcome of his application so late that he had little time to prepare for the trial as an unrepresented defendant. Be that as it may, the trial was stood down to 2.15 pm which was when the trial began with none of the defendants represented. At the beginning of that session, Dromudole told the judge that he would need more time to prepare his defence. The judge told him that he would give Dromudole time to prepare his cross-examination.

25. Subsequent events. The voir dire began almost immediately that afternoon. The prosecution's case was that the defendants had voluntarily confessed to their involvement in the robbery both when interviewed under caution and when charged. They had willingly signed the records of both their interviews and of what they had said when they had been charged to acknowledge that the contents of those records were correct. The defendants' case was that they had not confessed to anything, that the accounts of what they were supposed to have said had been fabricated, that they had been ill-treated and beaten up by the police, and it was that which had caused them to acknowledge that the records were accurate when they were not. The voir dire continued until 8 August. Written representations were then filed, and on the morning of 14 August, the judge ruled that the confessions were admissible. The trial then proceeded in the presence of the assessors.

Is there merit in the argument that the trial should have been adjourned?

26. Whether a trial should be adjourned is very much a matter for the judge's discretion. You may disagree with the exercise of the judge's discretion in a particular case, but there are many occasions when more than one view is reasonable, and so long as the exercise of the judge's discretion comes within the wide ambit of discretion which the judge enjoys, an appellate court cannot interfere with it if the view which the judge reached was one which was reasonably open to the judge to reach.

27. The judge's overarching function in a criminal trial is to ensure that the defendant receives a fair trial. Not infrequently, a defendant is not legally represented. Sometimes that is a matter of choice. More often the defendant has little option – because his application for legal aid has been refused and he does not have the means to pay for legal representation himself. But whenever a defendant is not legally represented, it is for the judge to ensure that the defendant has had enough time to prepare for the trial (unless, of course, the defendant was himself responsible for not being ready to defend himself). The starting point here is that the trial proper in the presence of the assessors got under way at least two weeks after Dromudole had been served with the last of the bundles of disclosures. The critical question, therefore, is whether, in the light of what had previously happened, he had had enough time to prepare himself for the voir dire. That depends, in part at least, on when he first had the documents which related to the issues to be canvassed in the voir dire.

28. The fact of the matter is that the documents in the last three bundles of disclosures all related to the issues to be canvassed in the voir dire, and Dromudole did not get them until sometime during the morning of the day when the trial was due to start. He could have guessed that the relevant police officers would be denying his allegations, but very often the only way in which a defendant can realistically challenge the evidence given against him by a host of police officers in a voir dire is by pointing out any inconsistencies in their evidence. That involves comparing what each of the police officers said in their witness statements. In my view, it is strongly arguable that Dromudole had not really had an opportunity to do that before the voir dire began.

29. It is true that between 28 March 2008 and the day on which Dromudole applied for legal aid, he had had the initial bundle of disclosures. He is likely to have read the documents in them at the time. But he had not had them for well over three months, and it is strongly arguable that it would have been expecting far too much of him to have been able to recall on the day the trial began what the police officers who were to give evidence in the voir dire had said in their witness statements in the initial bundle of disclosures. And then there were the records of the defendants' interviews and what they had said when they had been charged. As I have said, they were in the initial bundle of disclosures as well. Dromudole could not have been expected to remember on 30 July 2008 what had been attributed to him and his co-defendants by the police. In that context, it was not just what Dromudole was supposed to have said to the police that was important. Of course, what the others were alleged to have told the police was not admissible evidence against him, but it is strongly arguable that he would have wanted to know what all the other defendants were supposed to have told the police to see if there was an unexpected similarity in the language they were alleged to have used. The more there was, the more possible it might be to contend that what had been attributed to the defendants had been fabricated.

30. Two other points need to be mentioned. First, I have not overlooked the fact that the first witness who was relevant to the allegations made by Dromudole was not called until the morning of 31 July 2008. Could it be said that Dromudole had had at least the evening of 30 July 2008 to prepare his defence? That is possible, but if he was to cross-examine the relevant witnesses effectively, he would have had to absorb the contents of all the relevant witness statements as well as the records of what the defendants had said when they had been interviewed and charged. I have not seen anything which suggests that he would have been informed what witnesses were due to be called the next day. Even if he had been, it is strongly arguable that a single evening with the relevant documents would not have been anything like enough for a man unused to questioning witnesses to familiarise himself sufficiently with the material to conduct a meaningful cross-examination.

31. Secondly, Mr Korovou made the point that Dromudole never took up the judge's invitation to ask for time out to prepare his cross-examination if he needed it. That is also true, but in my opinion it is strongly arguable that it ignores the practical realities of the situation. Dromudole would have had every reason to think that he might irritate the judge if he asked for an adjournment before cross-examining every witness who gave evidence which was relevant to his case. Apart from that, anyone who has been an advocate knows how difficult it is to prepare things at a time when you know that the judge and the rest of the court are waiting for you. In any event, there was no real substitute for Dromudole familiarising himself before the voir dire began with all the material so that he had a picture of the case he had to meet as a whole and could plan his line of attack accordingly.

32. There are parallels between this case and Chand v The State (CAV0018 of 2008). That was a case like this where the defendant who was representing himself had been given the bundle of disclosures shortly before the trial began. Like the present case, the trial proper started a number of days after the defendant had been provided with the bundle, but it was the fact that he had been given the bundle on the day the voir dire was due to start and was then given only one hour to read the bundle which consisted of 125 pages which caused the Supreme Court to rule that the defendant had been "severely prejudiced" in the voir dire. Indeed, that was a case, unlike the present one, in which the reason why the defendant was representing himself was because he had dispensed with the services of his counsel shortly before the trial began.

33. I have considerable sympathy for the position in which the judge found himself. The trial had already been put back for many months, and even then it had had to be adjourned for two days because of the additional evidence which had been served. The judge would understandably have been very anxious not to put the trial off yet again. But for the reasons I have given, there is, I think, merit in the argument that it was not reasonably open to the judge to refuse Dromudole's application for an adjournment of the trial, if only for a couple of days.

Conclusion

34. It follows that I would grant Dromudole's application for a review of the previous judgment of the Supreme Court. I would enlarge his time for lodging his petition for special leave to appeal to the Supreme Court by the 9 months and 21 days necessary to validate it because of Madigan J's failure to consider whether there was merit in the claim that the trial should have been adjourned. I would give him special leave to appeal to the Supreme Court because (a) ground 3 is not frivolous in the sense that it could confidently be said that the appeal could not possibly succeed and (b) a substantial and grave injustice might therefore occur if special leave were to be refused. I would allow the appeal and remit to the Full Court of Appeal the question whether Dromudole should be granted leave to appeal on ground 3.

Dep, J
35. I agree with the conclusions and reasoning of Keith J.

Calanchini, J
36. I too agree with the conclusions and reasoning of Keith J.

Hon. Mr. Justice Brian Keith
Justice of the Supreme Court

Hon. Mr. Justice Gerard Dep
Justice of the Supreme Court

Hon. Mr. Justice William Calanchini
Justice of the Supreme Court

Solicitors:
Office of the Legal Aid Commission for the Petitioner
Office of the Director of Public Prosecutions for the Respondent.