Araibulu v State [2015] FJSC 31; CAV3.2015 (23 October 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA

CRIMINAL PETITION CAV 3 OF 2015
(Court of Appeal AAU 102 OF 2013)

BETWEEN:

AMENA ARAIBULU
Petitioner

AND:

THE STATE
Respondent

Coram : The Honourable Chief Justice, Mr Justice Gates
President of the Supreme Court
The Honourable Mr Justice Keith
Judge of the Supreme Court
The Honourable Mr Justice Calanchini
Judge of the Supreme Court

Counsel : Mr J Savou for the Petitioner
Mr L Burney with Ms D Kumar for the Respondent

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

JUDGMENT

Gates P

[1] I have read in draft the two following judgments of Keith J and Calanchini J. I agree with their reasoning and the orders proposed for the grant for enlargement of time for the late appeal to this court, for the allowance of special leave, and for the orders remitting this matter back to the Full Court of the Court of Appeal for a renewed hearing of the application for leave to appeal to that court.

[2] I find that the extent of proof required to establish guilty knowledge for an offence brought under section 6(b) of the Illicit Drugs Control Act to be an important issue. Such ground raised before the single judge, albeit in imprecise terms, cannot be described as incapable of argument and thus bound to fail. Therefore the ground complaining of wrongful categorisation by the single judge of the ground relating to guilty knowledge does raise a question of general legal importance [section 7(2)(a) Supreme Court Act] and succeeds before this court. There can be no challenge to the categorisation by the single judge of the remaining grounds as "frivolous" in the sense of unarguable and thus bound to fail as in section 35(2) of the Court of Appeal Act. The extent of the required proof relating to guilty knowledge may have to be set by the Court of Appeal. This application for leave should rightly go before the Full Court for decision.

Keith J

[3] I agree with the orders proposed by Calanchini J for the reasons which he gives. I add a few words of my own to explain why I do not think that it was open to the single judge of the Court of Appeal to conclude that the petitioner's appeal could not possibly succeed. The most compelling ground of appeal to the Court of Appeal was whether it was open to the trial judge to infer from the primary facts that the petitioner knew that the bicycle which he was helping his co-defendant to import was packed with chemicals to be used in the manufacture of illicit drugs. Plainly the trial judge was entitled to infer, from the petitioner's complicity in concealing the true identity of the consignee, that the petitioner was aware that something illegal was being imported. But on the assumption that the prosecution was required to prove that the petitioner knew that what he was helping to import were either illicit drugs or chemicals to be used in the manufacture of illicit drugs, the real question is whether it was open to the trial judge to infer from all the relevant facts that the petitioner knew that. I have had some difficulty identifying anything which would have entitled the judge to infer that. Plenty of evidence that the petitioner's co-defendant knew that, but not so much evidence from which it could be inferred that the petitioner knew that. For the reasons which Calanchini J gives, I think that the Full Court of the Court of Appeal is in a much better position to decide that than the single judge with the very limited materials available to him at the leave stage and who really only had the trial judge's summing-up to go on.

Calanchini J

[4] Although there is no formal application before the Court, the petition must be regarded as including an application for an enlargement of time to file an application for leave to appeal the decision of the Court of Appeal. The petition is about 56 days out of time.

[5] The Petitioner and one other were charged with offences under the Illicit Drugs Control Act 2004 (the Act). The Petitioner was charged with aiding and abetting contrary to 21(c) of the Penal Code Cap 17 and section 6(b) of the Act. It was alleged that the Petitioner on 6 January 2010 aided and abetted his co-accused to import into Fiji controlled chemicals being pseudoephedrine hydrochloride weighing approximately 2.680 kilograms without lawful authority. The Petitioner's co-accused was charged with the importation of the same controlled chemicals contrary to section 6(b) of the Act.

[6] Following a trial in the High Court the assessors returned unanimous opinions of guilty for the co-accused and not guilty for the Petitioner. The learned trial Judge agreed with the guilty opinions and convicted the co-accused. In a reasoned judgment the learned Judge stated his reasons for disagreeing with the not guilty opinions of the assessors and convicted the Petitioner on the aiding and abetting offence.

[7] On 4 October 2013 the Petitioner was sentenced to a term of imprisonment of 8 years with a non-parole term of 6 years. The co-accused was sentenced to a term of 8 years imprisonment without any non-parole term being fixed.

[8] By letter dated 23 October 2013 the Petitioner gave timely notice of his intention to appeal his conviction and sentence. The Petitioner then filed an amended application for leave to appeal against conviction dated 17 July 2014. The effect of this notice is that the appeal against sentence was no longer before the Court of Appeal. The amended grounds of appeal against conviction were:

"GROUND ONE

THE Learned Trial Judge erred in law and in fact when it did not consider that the duty to verify the identity of the consignee solely belongs to the delivery clerk of Carpenters shipping and the Custom officer.

GROUND TWO

THE Learned Trial Judge erred in law and fact when he overturned the unanimous finding of not guilty by the 3 assessors without considering the fact that the Appellant does not know that the controlled chemicals was inside of the bicycle and neither does he had any intention to assist in the importation of drugs.

GROUND THREE

THE Learned Trial Judge erred in law and fact when he failed to consider that the Appellant only assisted the first accused to clear the consignment because he was asked by the first accused and especially given the latter physical disability."

[9] To the extent that any of these grounds of appeal against conviction involved a mixed question of law and fact or of fact alone the Petitioner was required to obtain the leave of the Court of Appeal pursuant to section 21(1) (b) of the Court of Appeal Act Cap 12. However leave was not required in the event that any of the grounds involved a question of law alone under section 21(1) (a) of the Court of Appeal Act. Pursuant to section 35(1) of the Court of Appeal Act the power of the Court of Appeal to grant leave to appeal may be exercised by a justice of appeal.

[10] The application for leave came before a justice of appeal on 27 August 2014 and a ruling was subsequently delivered on 15 September 2014.

[11] In relation to ground one the learned Justice of Appeal regarded the Petitioner's concealment of the true identity of his co-accused and at the same time presenting his co-accused as the consignee as the most incriminating evidence against the Petitioner. The Petitioner presented his co-accused as Jack Wilson knowing all the time that his true identity was not the same as the person named in the shipment documents. When the officials asked for identification the Petitioner informed them that the co-accused did not have any identification. The learned justice of appeal also noted that the Petitioner had offered the two officials $100.00 to be shared between them. The learned Judge concluded that ground one was not arguable.

[12] Ground 2 raised the issue of knowledge about the offence and in particular the claim that the Petitioner did not have the requisite knowledge being that the panel concealed controlled chemicals. The learned Justice of Appeal concluded that the use of a fictitious name for the consignee, the concealment of the true identity of the co-accused by the Petitioner and the attempt to bribe the two officials was evidence from which the trial Judge was entitled to infer the guilty knowledge or intention. As a result the Justice of Appeal concluded that ground two was not arguable.

[13] In relation to ground 3 the learned Justice of Appeal concluded that on the evidence adduced at the trial the trial Judge was entitled to conclude that the Petitioner's association with the co-accused went much further than merely an innocent association. It involved more that the Petitioner innocently assisting the co-accused to secure the release of the package from customs. The Judge concluded that this ground was not arguable.

[14] Having concluded that none of the three grounds of appeal against conviction were arguable, the learned Justice of Appeal then proceeded to dismiss the appeal under section 35(2) of the Court of Appeal Act on the basis that the appeal was frivolous since in his opinion the appeal could not possibly succeed (See Naisua –v- The State; CAV 10 of 2013, 20 November 2013).

[15] It is convenient at this stage to refer to section 35(2) of the Court of Appeal Act which states:

"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."

[16] The effect of the section is that in the event that a justice of appeal whether in the course of hearing an application for leave to appeal or at any other time may dismiss the appeal under section 35(2) as being (1) vexatious, or (2) frivolous or (3) is bound to fail because there is no right of appeal.

[17] It is well settled that an appeal lies to this Court against a decision of dismissal under section 35(2) of the Act as a final decision of the Court of Appeal. (See Raura –v- The State CAV 10 of 2005, Tubuli –v- The State CAV 9 of 2006, Naisua –v- The State (supra) and Tiritiri –v- The State CAV 9 of 2014). The decision of the Justice of Appeal is a decision made in the exercise of the Court of Appeal's jurisdiction to dismiss an appeal under section 23 of the Court of Appeal Act. It is as a result of this conclusion that the Supreme Court's jurisdiction is enlivened under section 98(3) (b) of the Constitution which provides that:

"3 The Supreme Court:

(a) _ _ _

(b) has exclusive jurisdiction, subject to such requirements as prescribed by written law, to hear and determine appeals from all final judgments of the Court of Appeal; and

(c) _ _ _ "

[18] It must be borne in mind that the final judgment of the Court of Appeal in these proceedings is the Ruling of the Justice of Appeal dismissing the Petitioner's appeal on the basis that it was frivolous under section 35(2). In doing so the Judge has denied the Petitioner the statutory option to renew his application for leave to appeal against conviction before the full Court of Appeal under section 35(3) of the Court of Appeal Act.

[19] The Petitioner filed a petition for leave to appeal against conviction and sentence to the Supreme Court. The date of the petition is 24 December 2014. That document is not signed. There is no affidavit filed by the Petitioner. There are two subsequent documents dated 17 August 2015 and 1 September 2015 respectively, that relate to both conviction and sentence. Written submissions have been filed on behalf of the Petitioner and the Respondent. Although there are a number of procedural shortcomings in relation to compliance with the Supreme Court Act and Rules, the principal obstacle for the Petitioner is the delay in filing his petition.

[20] Rule 6 of the Supreme Court Rules requires the Petitioner to lodge with the Registry of the Supreme Court the petition (and an affidavit) within 42 days of the date of the Ruling of the Justice of Appeal. The petition should have been lodged no later than 27 October 2015. If it is accepted that the petitioner had done all that he could be expected to do as an incarcerated petitioner by 24 December 2014, the petition was about 56 days out of time.

[21] The determination of an application for enlargement of time involves the exercise of discretion by the Court for the purpose of excusing non-compliance with the Rules of the Court. The question for the Court to determine is whether it would be just in all the circumstances to grant or refuse the application. The factors that should be considered were summarised by this Court in Kumar and Sinu –v- The State (CAV 1 of 2009; 21 August 2013) as being (i) the length of the delay (ii) the reasons for the failure to lodge within time, (iii) 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 and (iv) if time is enlarged, will the Respondent be unfairly prejudiced?

[22] There is no affidavit filed by or on behalf of the Petitioner explaining the delay of some 56 days. The delay is substantial. In written submissions filed on 22 September 2015 the legal practitioners acting for the Petitioner acknowledged that no explanation has been put forward by way of an affidavit. Nor is any explanation put forward in the written submissions.

[23] It is under those circumstances that it becomes necessary to consider the grounds upon which the Petitioner relies for his application for leave in order to determine whether there is a ground for which not only will leave be granted but also which is likely to succeed on appeal in this Court.

[24] The decision that the Petitioner is seeking leave to appeal is the decision of the justice of appeal to dismiss his appeal as being frivolous under section 35(2) of the Court of Appeal Act. The petitioner cannot appeal the decision of the Justice of Appeal that none of the three grounds raised an arguable point. If the Justice of Appeal had left the matter at that point, then the Petitioner could have renewed his application for leave to appeal to the Court of Appeal (constituted by three justices of appeal). Nor is this a petition to seek leave to appeal the conviction entered by the High Court. There is no jurisdiction vested in this Court to hear such an appeal. All this Court is called upon to determine is whether the learned Justice of Appeal erred when he concluded that the appeal could not possibly succeed and was as a result frivolous.

[25] It is in an application such as the one presently before this Court that the necessary question must be, on account of the substantial and unexplained delay, whether there is a ground of appeal that will probably succeed.

[26] It must also be recalled that the Supreme Court is not a court of criminal appeal. The statutory framework indicates that an appeal to the Supreme Court is an appeal in the strict sense which is only available upon leave having been granted. The appeal is not by way of re-hearing on the papers. As a result this Court is required to consider whether the judgment being appealed from (i.e. the Ruling of the Justice of Appeal) was correct when it was given. The issues that were before the Court of Appeal as at the date of the judgment under appeal are considered, not the material that may have subsequently come before this court. If it is determined that the Ruling was correct when it was given then that is the end of the matter. Ordinarily this Court should not at this stage consider new grounds of appeal against conviction or sentence that may have subsequently been filed since the Ruling delivered by the Justice of Appeal.

[27] With those considerations in mind, I have concluded that it would be just in all the circumstances to grant an enlargement of time. The Petitioner has been denied the opportunity to renew his application for leave to appeal to the Court of Appeal. It is an option that is given by section 35(3) of the Court of Appeal Act. That option can be removed when a justice of appeal determines that the appeal is, amongst other things, frivolous. This Court has determined in the Naisua decision (supra) 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. This is therefore a case where, had the application for leave to appeal to this Court been filed within time, leave would have been granted.

[28] As to whether the option to renew the application for leave to appeal to the Court of Appeal has been curtailed by a wrong application of the law, it is necessary to recall that at the leave stage the justice of appeal does not have the transcript of evidence available to him. The material upon which the application for leave to appeal proceeds in the Court of Appeal is restricted to the summing up, the judgment and the sentencing decision.

[29] When an issue arises as to whether the evidence permits an inference to be drawn so as to establish the necessary fault element it seems to me that it is not sufficient to rely only on the summing up. It seems to me that the full Court of Appeal, with the benefit of the appeal record including the transcript of evidence, would be in a better position on a renewed application to draw its own inferences rather than a justice of appeal at the leave stage.

[30] Furthermore it does seem to me that the precise nature of the requisite fault element is an issue upon which it was open to the justice of appeal to conclude that even if not arguable in his opinion, should have been left to the Court of Appeal to consider in the event that the Petitioner exercised his option to renew his leave application.

[31] It is for these reasons that I have concluded that it would be just in all the circumstances to enlarge the time for the Petitioner to apply for leave from this Court to appeal the decision of the Justice of Appeal. Furthermore I would grant leave to appeal, allow the appeal and remit the matter to the Court of Appeal as a renewed application for leave to appeal.

Orders:

1. Application for an enlargement of time granted.
   
2. Leave to appeal granted.
   
3. Appeal allowed.
   
4. Matter remitted to the Full Court of Appeal for a renewed application for leave to appeal to the Court of Appeal pursuant to section 35(3) of the Court of Appeal Act.
   

_______________________________________
Hon Chief Justice Mr Justice Gates
President of the Supreme Court

_______________________________________
Hon Mr Justice Keith
Judge of the Supreme Court

_______________________________________
Hon Mr Justice Calanchini
Judge of the Supreme Court