Bulivou v State [2015] FJSC 6; CAV0001.2015 (24 April 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA

CRIMINAL APPEAL NO. CAV0001 OF 2015
(On an appeal from the Court of Appeal No. AAU 78 of 2010)

BETWEEN:

TOMASI TIKO BULIVOU
Petitioner

AND:

THE STATE
Respondent

Coram: Hon. Justice Anthony Gates, President of the Supreme Court
Hon. Justice Saleem Marsoof, Judge of Supreme Court
Hon. Justice Almeida Guneratne, Judge of Supreme Court

Counsel: Mr. S. Waqainabete for the Petitioner
Ms. J. Prasad for the Respondent

Date of Hearing: Monday, 13th April 2015
Date of Judgment: Friday, 24th April 2015

JUDGMENT

Hon Justice Anthony Gates, P

1. I have read and agree with the succeeding judgment of Marsoof J A.

_____________________________

Hon. Justice Anthony Gates

President of the Supreme Court

Hon Justice Saleem Marsoof, JA

1. In this application, the Petitioner seeks special leave to appeal against the decision of the Court of Appeal (Calanchini P., Gamalath J.A., and Waidyaratne J.A) dated 5th December 2014, which affirmed the conviction and sentence imposed by the High Court at Lautoka (Thurairaja J.) on the Petitioner, subject to the substitution for the cumulative sentence of 20 years imprisonment with 16 years of non-parole, two sentences of 16 years imprisonment to run concurrently with a non-parole period of 14 years.
   

The offences, the trial and the sentence

2. The Petitioner was charged before the High Court at Lautoka on two counts of attempted rape contrary to Section 151 of the Penal Code, Cap 17, five counts of rape contrary to sections 149 and 150 of the Penal Code, one count of defilement of a girl under 13 years of age contrary to section 155(1) of the Penal Code, and one count of indecent assault contrary to section 154(1) of the Penal Code.
   
3. Of these nine counts, the first six counts were in respect of one victim and counts 7 to 9 were in respect of another victim. These offences had been committed during the period of 1st January 2005 and 31st December 2008. The first victim (whose true identity is withheld and may be referred to as "SC") is the Petitioner's maternal niece, that is, the daughter of the sister of the Petitioner, and she had been five years old when the first attempted rape had taken place. The second victim (whose true identity is withheld and may be referred to as "LC", is a grand niece of the Petitioner, and had been 8 years old when the offence had been committed on her by the Petitioner.
   
4. At the commencement of the trial in the High Court at Lautoka before three assessors on 30th August 2010, the Petitioner pleaded guilty to counts 5 and 6, which were charges respectively of defilement and rape of the girl named SC. In other words, with respect to the girl named SC, he pleaded not guilty only to count 1, which was one of attempted rape, and counts 2,3 and 4 which were also counts of rape alleged to have been committed on different dates. He also pleaded not guilty to counts 7, 8 and which were respectively for attempted rape, rape and indecent assault of the girl named LC on different dates.
   
5. On 30th August 2010 only one prosecution witness testified. The witness was the girl named SC, who was the Petitioner's sister's daughter, who was 10 years old when she gave evidence. Her evidence was recorded in camera, and the witness gave details of the acts alleged to have been committed on her by the Petitioner. The Petitioner briefly cross-examined the witness and there were no questions on re-examination. At the end of the testimony of this witness, the trial was adjourned to be continued on 31st August 2010.
   
6. On 31st August 2010, when proceedings commenced, learned State Counsel moved to file amended information with respect to counts 1,2,3,4,7,8 and 9, which was not objected to by the Petitioner. The amended counts were read to the Petitioner, who pleaded not guilty to all the amended counts. Thereafter the mother of the girl SC who had testified on the previous day, was called to give evidence. She stated in her evidence that she was not aware at that time as to what happened between her daughter and the Petitioner, who was her brother. The Petitioner did not cross-examine the witness, but one of the assessors asked whether the witness suspected anything between the Petitioner and the victim, and the witness answered in the negative.
   
7. Thereafter, the girl named LC was called to give evidence, and in the course of her testimony, she gave details of the acts alleged to have been committed on her by the Petitioner. The Petitioner cross-examined the witness at some length, and there were no questions on re-examination. At the end of the testimony of this witness, Dr. Inose Vatucicila Voce, who had examined SC and LC at the Labasa Hospital, testified and gave details of her medical examinations and produced the relevant reports. She was briefly cross-examined by the Petitioner, and there were no questions in re-examination. The final witness to testify on 31st August 2010 was the grandmother of LC and a cousin of the Petitioner, who stated in her testimony that LS had told her what the Petitioner had done to her, and that she informed the Village Headman who had informed the Police. The witness was briefly cross-examined by the Petitioner, and there were no questions on re-examination. The trial was then adjourned for 1st September 2010.
   
8. On 1st September 2010, when proceedings commenced, the Petitioner moved for a short adjournment to reconsider his plea. When the Court recommenced after the adjournment, the Petitioner indicated that he wanted to change his plea. Thereafter what transpired in Court has been recorded as follows:-
   

"Now the time is 12 noon.

Accused - Sir I want to change my plea.

Court - Why do you want to change your plea?

Accused - After hearing the evidence of witnesses I want to plead guilty. I also want to save the Court time. I don't want to travel to prison and court every day. I want to save everybody's time.

Court - Did anyone want you to change the plea?

Accused - No Sir. It is my own decision.

Court (to State Counsel) - Do you have objections or observations?

State Counsel - Certainly no objections. I have no adverse observation.

Court - Now I proceed to take this plea on all 9 counts again on the request of the accused.

Court (to Accused) - Now the Registrar will read the charge sheet to you. First you have to understand the charge. If you understand say you understand if you don't, say you didn't, if you need any clarification, you may ask the Court if you need any assistance you may ask court.

Court - Do you understand?

Accused -Yes Sir (with a smile)."

9. Thereafter the Registrar read out to the Petitioner all the 9 counts, and the Petitioner pleaded guilty to all of them. Thereafter the learned High Court Judge again questioned the Petitioner as follows:-
   

"Court - Did anyone promise, threaten or induce you to change your plea?

Accused - No.

Court - Is this your considered decision.

Accused –Yes

Court - Can I accept your plea as free and fair decision?

Accused - Yes."

10. Noting that in these circumstances, the Petitioner tendered a plea on his own without promise, threat or inducement, the learned High Court Judge then proceeded to convict the Petitioner on all 9 counts as charged. The case was then adjourned for 3rd September 2010 for sentencing, on which date the learned High Court Judge made his sentencing order which was summarised as follows:-
    

Count No.1 Attempted Rape - 5 years imprisonment

Count No.2 Rape - 16 years imprisonment

Count No.3 Rape - 16 years imprisonment

Count No.4 Rape - 16 years imprisonment

Count No.5 Defilement - 5 years imprisonment

Count No.6 Rape - 16 years imprisonment

Count No.7 Attempted Rape - 5 years imprisonment

Count No.8 Rape - 16 years imprisonment

Count No.9 Indecent Assault - 3 years imprisonment

11. The learned High Court Judge then took into consideration the gravity of the offences in question, and proceeded to make order that part of the sentence of imprisonment should run concurrently and the other part should run consecutively, and that the second sentence of 16 years imprisonment would operate from the fourth year of the first sentence, so that the Petitioner will serve a total of 20 years imprisonment. The Judge also ordered that in terms of section 18 (1) of the Sentencing and Penalties Decree of 2009, the non-parole term shall be 16 years.
    
12. The Petitioner appealed against his conviction and sentence to the Court of Appeal on several grounds, which were summarised by the Court of Appeal in paragraph 10 of its judgment dated 5th December 2014 to be the following:-
    

1) that the learned trial Judge erred in law and in fact when he advised the Appellant to reconsider his plea prior to the calling of the last witness and that resulted in the Appellant's equivocal plea; and

2) that the learned trial Judge erred in law and in principle when he made part of the sentence to run concurrently and the other part consecutively without having a reasoned justification.

13. The Court of Appeal, having considered the said grounds of appeal, by its aforesaid judgment, confirmed the conviction of the Petitioner, but varied the sentence imposed by the High Court, as already noted, by substitution for the cumulative sentence of 20 years imprisonment with 16 years of non-parole, two sentences of 16 years imprisonment to run concurrently with a non-parole period of 14 years.
    

The Petitioner's appeal

14. By his letter dated 10th December 2014, the Petitioner informed the Supreme Court that he wished to appeal against the decision of the Court of Appeal to affirm his conviction on the following ground:-
    
    • (1) that the Court of Appeal erred in law when it failed to consider the affidavit made by the learned trial prosecutor in confirming that the learned trial judge had asked the Petitioner to reconsider his plea during the trial that led to the Petitioner pleading guilty after the court had reconvened.
      
15. However, by his letter dated 6th February 2015 that was lodged in the Registry of the Supreme Court on 24th February 2015, the Petitioner sought to make, what he described as a "late appeal" and further sought permission to "formulate" four grounds of appeal against the conviction and three grounds of appeal against the sentence. The grounds of appeal so formulated were as follows:-
    

Grounds for Appeal against Conviction

(i) that the Learned trial Judge erred in law and in fact not taking into account that the appellant was unrepresented, since that it was a serious charge;

(ii) that the learned Trial Judge erred in law and in fact inducing the appellant on equivocal plea;

(iii) that the learned trial Judge erred in law and in fact when he advised the appellant prior to the calling of the last witness; and

(iv) that the learned trial Judge and the assessor erred in law and fact in taking irrelevant matters into account and not taking relevant matters into account in coming to their decision.

Grounds for Appeal against Sentence

(i) that this sentence is harsh and excessive in the light of other cases;

(ii) that the learned trial judge failed to give discount for plea of guilty;

(iii) that the learned trial judge failed to consider the time spent on remand.

16. It is important to note that while section 98(3)(b) of the Constitution of the Republic of Fiji, 2013, confers on the Supreme Court the exclusive jurisdiction, "subject to such requirements as prescribed by law", to hear and determine appeals from all final judgments of the Court of Appeal, section 98(4) of the Constitution of the Republic of Fiji (2013) provides that "an appeal may not be brought to the Supreme Court from a final judgment of the Court of Appeal unless the Supreme Court grants leave to appeal".
    
17. Section 7(2) of the Supreme Court Act No. 14 of 1998, sets out the criteria that have to be satisfied for the grant of special leave to appeal in the following manner:-
    

"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 could otherwise occur."

18. Neither the Constitution of the Republic of Fiji nor the Supreme Court Act of 1998 contain any provision relating to the time limit or procedure applicable to applications seeking special leave to appeal from any final decision of the Court of Appeal to this Court. However, while the Supreme Court Rules of 1998 outlines the procedure for making such an application, Rule 6(a) thereof lays down that such an application must "be lodged at the Court registry within 42 days of the date of the decision from which special leave to appeal is sought", and these rules continue to apply in Fiji notwithstanding the promulgation of a new Constitution.
    
19. At the outset, it may be observed that the letters dated 10th December 2014 and 6th February 2015 do not comply with the procedure applicable to applications for special leave to appeal to this Court outlined in the aforesaid Supreme Court Rules, in that they do not take the form of petition and affidavit as required by Rule 5 or contain a prayer seeking special leave to appeal. Furthermore, the second letter of the Petitioner dated 6th February 2015 has been filed outside the time limit of 42 days specified in Rule 6(a) of the said Rules for the lodging of an application seeking special leave to appeal, and no explanation has been advanced as to why these additional grounds could not be included in the initial letter dated 10th April 2010.
    
20. Mr. Waqainabete who appears for the Petitioner has moved for clemency on the ground that the Petitioner made the aforesaid applications from prison and had no proper legal advice at the time he lodged his aforesaid letters seeking to invoke the appellate jurisdiction of this Court. He has submitted to Court that in the circumstances, the aforesaid letters of 10th December 2014 and 6th February 2015 be treated as applications for special leave to appeal from the impugned decision of the Court of Appeal. I do not find any difficulty in extending to the Petitioner some leniency with respect to the letter dated 10th December 2014, which was filed within the period of 42 days prescribed by Rule 6(a), but the letter dated 6th February 2015 has been filed out of time, and no excuse for the delay has been provided to Court.
    
21. Rule 20(1) of the Supreme Court Rules requires the Registrar of this Court to initiate action to have the parties noticed where an appellant or petitioner has not fulfilled the conditions of appeal or petition imposed by these Rules, to enable this Court in appropriate cases, to make order that the appeal or petition be dismissed with or without costs. Rule 20(2) permits the respondent to initiate steps for having any appeal or application lodged without complying with the rules dismissed, and Rule 20(3) permits an aggrieved appellant or petitioner to move this Court, for good and sufficient cause, to have the appeal or petition restored. Rule 20(4) provides that "notwithstanding the preceding provisions of this rule, an appellant or petitioner may apply to this Court for an extension of time in which to fulfil the conditions of appeal or petition imposed by these Rules and the Court may, for good and sufficient cause, grant an extension of time subject to any conditions the Court imposes."
    
22. As this Court observed in paragraph 20 of its judgment in Rasaku and Another v State [2013] FJSC 4; CAV0009, 0013.2009 (24 April 2013), the time limit prescribed by Rule 6(a) is a condition of appeal or petition with respect to which Rule 20(4) confers this Court with powers of enlargement of time. However, as this Court has emphasised time and again, the enlargement of time for filing a belated application for leave to appeal is not automatic but involves the exercise of the discretion of Court for the specific purpose of excusing a litigant for his non-compliance with a rule of court that has fixed a specific period for lodging his application. This Court has in paragraph 4 of its judgment in Kumar v State; Sinu v State [2012] FJSC 17; CAV0001.2009 (21 August 2012), conveniently summarised the factors that will be considered by a court in Fiji for granting enlargement of time.
    
23. As the Judicial Committee of the Privy Council emphasised in Ratnam v Cumarasamy [1964] 3 All ER 933 at 935 at 935:
    

"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."

24. Similar sentiments were expressed in Revici v Prentice Hall Incorporated and Others [1969] All ER 772 by Edmund Davis LJ at page 774 –
    

".....the rules are there to be observed; and if there is non- compliance (other than of a minimal kind), that is something which has to be explained away. Prima facie, if no excuse is offered, no indulgence should be granted.

25. In these circumstances, I am of the opinion that the grounds set out in the letter dated 6th February 2015 cannot be entertained by this Court, more so as they are clearly frivolous and do not seem to add much to ground (1) taken up in the Petitioner's letter dated 10th December 2014. Ground (i) against the conviction relied upon by the Petitioner in his letter of 6th February cannot be sustained in the circumstance that even on 13th August 2010, when the case was mentioned to fix a date for pre-trial conference, the trial judge explained to the Petitioner about his right to legal representation, but he did not wish to avail himself of legal aid or wish to otherwise obtain legal assistance. Grounds (ii) and (iii) advanced against conviction are related to ground (1) included in the Petitioner's letter dated 10th December 2014 and may be considered with that ground which was taken up within time, and ground (iv) to the effect that the learned trial Judge and the assessors erred in law and fact in taking irrelevant matters into account and not taking relevant matters into account in coming to their decision, makes little sense in the absence of particulars of such irrelevant or relevant matters.
    
26. The same may be said of grounds (i), (ii) and (iii) advanced by the Petitioner in his letter of 6th February against his sentence. Ground (i) is baseless since the sentence, as varied by the Court of Appeal, is neither harsh nor excessive in the light of the age of the victims and their relationship to the Petitioner as well as the sentences imposed by our courts in the other similar cases, and ground (iii) overlooks the fact that four months spent by the Petitioner in remand is just a drop in the ocean considering the terms of imprisonment imposed on the Petitioner. As for ground (ii), which I take to mean has been formulated on the basis that the Petitioner was not given discount for tendering a plea of guilty, does not hold much water given that the plea of guilty (other than on grounds 5 and 6) were tendered after five witnesses had spent precious time and effort testifying before court, particularly in the context that two of the witnesses were the very young victims themselves, who were by reason of the belatedness of the Petitioner's plea of guilty, compelled to relive their harrowing experiences which gave rise to the charges.
    

Voluntariness of the plea of guilty

27. The question that remains to be considered is whether ground (1) advanced by the Petitioner in his letter dated 10th December 2014 would satisfy the stringent criteria set out in section 7(2) of the Supreme Court Act No. 14 of 1998. Ground (1), which raises the issue of voluntariness of the Petitioner's plea of guilt, has been quoted in paragraph 14 of this judgment, and has been formulated by the Petitioner on the basis that the Court of Appeal erred in law when it failed to consider the affidavit made by the learned trial prosecutor on the question whether the learned trial judge had asked the Petitioner to reconsider his plea during the trial that led to the Petitioner pleading guilty after the court had reconvened. As already noted, this ground is related to ground (ii) against the conviction raised in the Petitioner's letter of 6th February 2015 alleging that the learned trial judge erred in law and in fact by inducing the Petitioner to tender a plea of guilty on counts 1 to 4 and 7 to 9 of the charge, and ground (iii) thereof to the effect that the learned trial judge erred in law and in fact when he advised the appellant to make the said plea prior to the calling of the last witness.
    
28. I note that the Court of Appeal has not adverted to or taken into consideration the affidavit dated 26th April 2011 sworn by the learned prosecutor wherein he has adverted to the circumstance of the Petitioner changing his plea of not guilty to counts 1, 2, 3, 4, 7, 8 and 9 to a plea of guilty. This is probably because there was no application before that Court in terms of section 28 of the Court of Appeal Act for the production of the said affidavit as fresh evidence, nor has an application to that effect formally been made before this Court.
    
29. Nevertheless, in the interests of justice, I have considered the contents of the aforesaid affidavit (Supreme Court Brief pages 33 to 35), but I find nothing therein that would further the case now advanced by the Petitioner before this Court. I quote below the material paragraphs 10 to 16 of the affidavit of the learned prosecutor:
    

10. That having pleaded guilty to 7 counts on the information, the matter then proceeded to trial on the counts to which the appellant had pleaded not guilty, and the State called its witnesses to prove its case.

11. That after the State's key witnesses had given evidence, and prior to the calling of the State's last witness, the learned trial Judge enquired of the appellant as to whether, after hearing the prosecution witnesses, he wishes to maintain his plea or to take time out to reconsider.

12. That the learned trial Judge made it very clear to the appellant that no one was forcing him, and that whatever decision he made, he must reach it voluntarily and without fear. His Lordship also informed the appellant that since the appellant was without legal representation, it was his Lordship's duty to assist him.

13. That the appellant then asked for time to consider, and the Court adjourned for this purpose.

14. That when Court convened, the appellant informed the Court that having heard the evidence of the children complainants, and also to save the Court's time, he wanted to plead guilty to all the counts on the information.

15. That when asked by the Court as to whether anyone had forced or induced him to plead guilty, the appellant replied in the negative.

16. That the assessors were then called in and duly informed of the appellant's decision to change his plea.

30. I am of the opinion that the above quoted averments of the affidavit of the learned prosecutor do not support ground (1) now advanced by the Petitioner before this Court, nor do they further grounds (ii) and (iii) set out in the letter of the Petitioner dated 6th February 2015 to the effect that by advising the Petitioner just prior to the calling of the last witness for the prosecution, the trial judge induced the Petitioner to tender a plea of guilty with respect to counts 1 to 4 and counts 7 to 9 of the charge. I also find that the contents of the said affidavit of the prosecutor do not support the position taken up by the Petitioner himself in his affidavit dated 29th September 2010 (Supreme Court Brief page 38) the material paragraphs 2 and 3 thereof which are quoted below:-
    

2. That on the day I changed my plea to guilty, the court had earlier ordered an adjournment and when recalled, only the Judge, Prosecutor, Interpreter and I were present.

3. That when I entered the box, the Judge advised me not to prolong the trial and if I pleaded guilty to all the offences charged, he could reduce my sentence from 3 years to 2 years and this is why I pleaded guilty to all the charges.

31. In my view, the suggestion in paragraph 3 of the aforesaid affidavit of the Petitioner that the learned trial judge induced the Petitioner to tender a plea of guilty with respect to counts 1 to 4 and 7 to 9 of the charge by indicating that he would reduce the sentence from 3 years to 2 years is altogether implausible since such a sentence of 3 years imprisonment was far below the then prevailing tariff for such sexual offences, which in this case were seriously aggravated by the fact that the victims were respectively the Petitioner's niece and grandniece.
    
32. Furthermore, this was not the first time the Petitioner had tendered a plea of guilty, as he had previously in the same proceedings pleaded guilty to charges 5 and 6, and in any event, it is unlikely that if the trial judge had induced the Petitioner to plead guilty by indicating that he would impose more lenient sentences, he would have proceeded to impose two 5 year sentences of imprisonment with respect to counts 1 (attempted murder) and 7 (defilement) together with four sixteen year sentences of imprisonment for counts 2, 3, 4 and 6 (rape) to run consecutively for four years and thereafter to run concurrently so that the Petitioner would serve a total of 20 years in prison.
    
33. The Court of Appeal had examined very carefully the question of the voluntariness of the plea and in particular the question whether the trial judge had induced the plea and noted in particular at paragraph 11 of the main judgment of Waidyaratne JA (with which Calanchini P and Gamlath JA had concurred) that the learned Counsel for the Petitioner had conceded that the record of the High Court does not support the contention that the learned trial judge had advised the Petitioner to reconsider his plea. Thereafter, having referred, in paragraph 12 of the said judgment, to the decision in Turner v R (1970) 2 QB 321 and the discussion in Blackstone dealing with the issue of the involuntary plea, Waidyaratne JA went on to examine the record of the High Court relating to the change of the plea by the Petitioner on 1st September 2010 (material parts of which have been captured in paragraphs 8 and 9 of this judgment) and concluded as follows:-
    

"The above proceedings demonstrate that though the Appellant was unrepresented, the Appellant knew and understood the legal process. The way the Appellant conducted himself in these proceedings indicates that he had confidence and knowledge in what he was doing. It is quite clear that the Appellant on his own volition made a request to Court to change his plea of not guilty to one of guilty. Therefore his plea is voluntary.

34. It is manifest from the language used in section 7(2) of the Supreme Court Act that special leave is not to be granted as a matter of course. It is noteworthy that, as this Court was constrained to observe in Aminiasi Katonivualiku v. The State [2003] FJSC 17; CAV0001.(179 (17 April 2003) at page 3, -
    

"......the Supreme Court is not a court of criminal appeal or general review nor is there an appeal to the Court as a matter of right and, whilst we accept that in an application for special leave some elaboration on the grounds of appeal may have to be entertained, the Court is necessarily confined within the legal parameters set out above, to an appeal against the judgment of the Court of Appeal which in this instance, was an order for a new trial."

35. The above passage has been cited with approval in subsequent decisions of this Court such as Raura v The State [2006] FJSC 4; CAV0010U.2005S (4 May 2006), Chand v The State [2012]FJSC 6; CAV14/2010 (9th May 2012) and Chaudhry v The State [2014] FJSC 14; CAV0018/2014 (14 November 2014). The parameters of section 7(2) of the Supreme Court are demarcated by the concepts of "general legal importance", "substantial question of principle" and "substantial and grave injustice", which were amply illustrated in the following dictum of Lord Sumner in Ibrahim v Rex [1914] A.C. 599 at page 614:-
    

"Leave to appeal is not granted 'except where some clear departure from the requirements of justice' exists: Riel v. Reg (1885) 10 App. Case. 675; nor unless by a disregard of the forms of legal process, or by some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done': In re Abraham Mallory Dittet (1887) 12 App. Case. 459."

36. It is abundantly clear that the Petitioner has failed to satisfy the criteria set out in section 7(2) of the Supreme Court Act for the grant of special leave to appeal, and has not been able to demonstrate that any questions of general legal importance or substantial question of principle arise in this case for determination by this Court or any substantial and grave injustice has been suffered by him in the lower courts.
    

Conclusions

37. For all these reasons, the application of the Petitioner for special leave to appeal is refused.
    

Hon. Justice Saleem Marsoof JA
Judge of the Supreme Court

Hon Justice Almeida Guneratne, JA

I have perused the judgment of Hon. Justice Saleem Marsoof in draft, and agree with his reasoning and conclusions.

Hon. Justice Almeida Guneratne
Judge of Appeal of the Supreme Court

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