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Kean v State [2015] FJSC 8; CAV0020.2014 (24 April 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA


CRIMINAL PETITION NO: CAV020 OF 2014
(On an appeal from the Court of Appeal No: AAU123 of 2013)


BETWEEN:


GUSTON FREDRICK KEAN
Petitioner


AND:


STATE
Respondent


Coram: Hon. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Justice Sathyaa Hettige, Judge of Supreme Court
Hon Justice Buwaneka Aluwihare, Judge of Supreme Court


Counsel: Petitioner in person
Mr. V.Perera for the Respondent


Date of Hearing: Friday 10th April 2015
Date of Judgment: Friday, 24th April 2015


JUDGMENT


Hon. Justice Saleem Marsoof


  1. This is an application for special leave to appeal against a decision of a single Judge of the Court of Appeal (Daniel Goundar J.A) made in terms of section 35(2) of the Court of Appeal Act whereby the Petitioner's appeal filed in the Court of Appeal was dismissed subject to a variation of the date from which the sentence of imprisonment imposed on the Petitioner should commence.
  2. Before dealing in detail with the aforesaid application of the Petitioner for special leave to appeal to the Supreme Court, it may be useful to set out the background to this application in some detail.

The Factual Background


  1. On 23rd February 2007, the Petitioner was charged in the Magistrate's Court at Lautoka with the offence of resisting arrest contrary to section 247(b) of the Penal Code. The statement of offence and particulars of offence were as follows:-

Statement of offence


Resisting arrest contrary to section 247(b) of the Penal Code


Particulars of offence


Guston Frederick Kean on the 20th day of February 2007 at Lautoka in the Western Division, resisted Police Support Officer Number 1825 Autiko Kuricuva whilst effecting arrest in the due execution of his duty.


  1. At the trial before the Magistrate's Court at Lautoka (Ranga Wimalasena J.), which was commenced and concluded on 22nd June 2010, two witnesses, namely Autiko Kuricuva, who was a Special Constable detailed to look out for persons against whom bench warrants had been issued, and Mohammed Harif, a police constable, who had come to assist Kuricuva when the Petitioner resisted arrest, testified for the prosecution. The Petitioner was the only witness for the defence.
  2. In the context of this case, it may be important to summarise the testimony of Kuricuva, which was to the effect that on the date of the Petitioner's arrest, he was posted at a mobile police post at Vitogo Parade and briefed to look out for persons against whom bench warrants had been issued. The Petitioner had several bench warrants for his arrest in pending cases for robbery and housebreaking. When Kuricuva spotted the Petitioner getting off a white van and entering Reddy's video shop, he approached the Petitioner from behind and informed him that he is wanted for some cases. At first the Petitioner cooperated, but once they got out of the video shop, the Petitioner resisted arrest and tried to drag Kuricuva into the white van in which he had come. Kuricuva had to struggle with the Petitioner until the backup team arrived, but the Petitioner got into the white van, sat on the front seat and asked the driver to start the van. According to Kuricuva, at this stage, he used reasonable force to pull the Petitioner out of the van before the van started moving, and that was when the Petitioner hit his left arm on the lamp post. After a few minutes the back up team including the other witness Harif arrived, and they managed to take the Petitioner to the police station. The testimony of Harif corroborates that of Kuricuva.
  3. The testimony of the Petitioner briefly was that when Kuricuva told him that he was going to arrest him, he asked him whether he had any docket to prove that he was on a bench warrant. He told the Petitioner that he has no right to arrest him without proper documentation, but he will take himself to the police station. He then walked to his van and sat on it, and that was when Kuricuva became aggressive and pulled the Petitioner out of the van. As the Petitioner got off the van, Kuricuva held him by the collar of his shirt and forcefully pushed him against the light post whereby his ear was split open. The Petitioner testified that he did not assault Kuricuva nor did he use any vulgar language. Harif then came to the Petitioner, pulled him by the collar and took the Pettioner to the police cab. Harif came to the driving seat and assaulted the Petitioner by throwing a punch and blackening his eye. At the request of the Petitioner, the Legal Aid Counsel Mr. Sunil Sharma came to the police station, and the Petitioner was taken to the hospital for treatment, and a medical report was made. The Petitioner was subjected to a caution interview, in the course of which he denied all allegations.
  4. At the conclusion of the trial, the case was fixed for judgment, and on 3rd September 2010, the learned magistrate pronounced judgment. In paragraph 12 of his judgment, the learned magistrate noted that-

"A police officer has rights to arrest a person if he has reasons to believe that a bench warrant is pending against such person, although he may not have a copy of the bench warrant. Further it appears that the Police officer was going to arrest the accused in the proper way by touching him and explaining the reasons for arrest. This was even confirmed by the accused. In the circumstances I am satisfied that the prosecution proved beyond reasonable doubt that the Police officer was in due execution of his duties."


  1. The crucial finding against the Petitioner is contained in paragraph 18 of the judgment, wherein the learned magistrate has observed as follows:-

"It appears that the evidence given by the prosecution witnesses fall in line with the evidence of the accused to a great extent. The accused clearly admitted that he refused to go to the Police Station with the Officer. Instead he said that the officer refused to allow him to go to the Police Station on his own. Further the accused admitted that he got in to the van disregarding the attempt to arrest him. It is very evident that no duty bound Police Officer can release a wanted criminal once caught, to surrender to the Police at a later time on his own. The contention of the accused is frivolous and I am convinced that the behavior of the accused amounts to nothing less than resisting arrest."


  1. On the basis of the above analysis of the evidence, the learned magistrate by his judgment dated 3rd September 2007, found the Petitioner guilty of the offence of resisting arrest as charged and convicted him for the violation of section 247(b) of the Penal Code. Thereafter, the Petitioner was heard in mitigation on 24th September 2010, and by his order dated 26th October 2010, the magistrate sentenced the Petitioner to 12 months imprisonment to be to be served consecutively with the uncompleted sentences of imprisonment that was at that time being served by him
  2. The appeal lodged by the Petitioner against his conviction and sentence to the High Court of Fiji at Lautoka was initially called before the High Court on 21st January 2011 and dismissed on the ground that it was out of time. Pursuant to an appeal taken by the Petitioner against the said order, on 6th November 2012 the Court of Appeal decided to set aside the order of the High Court dated 21st January 2011 and remitted the appeal to the High Court for rehearing.
  3. The appeal was thereafter taken up for hearing on 3rd October 2013 in the Lautoka High Court (Sudharshana De Silva J.), which by its judgment dated 23rd October 2013, dismissed the Petitioner's appeal against conviction but ordered that the sentence be served concurrently with the uncompleted sentence.
  4. The Petitioner sought to appeal against the aforesaid decision of the High Court by lodging in the Registry of the Court of Appeal a Notice of Appeal on 6th December 2013, which was on the face of it, outside the time limit of thirty days prescribed by law for making such an appeal. The said Notice of Appeal was based on eight grounds of appeal, of which the first five related to the conviction, and the remaining three related to the sentence passed by the magistrate. These grounds were as follows:-
  5. The appeal was taken up for hearing before a single Judge of the Court of Appeal (Daniel Goundar J.A) on 4th July 2014. In his Ruling dated 24th July 2014, his Lordship considered at the outset the question whether the appeal has been lodged in time, and noted that since the Petitioner had handed his Notice of Appeal to the Department of Corrections by 8th November 2013, the appeal may be considered to have been filed within time.
  6. Thereafter, his Lordship adverted to section 22 of the Court of Appeal Act which confined the right of appeal against a decision of the High Court made in the exercise of its appellate jurisdiction to "any ground of appeal which involves a question of law", and observed as follows at paragraph 5 of his Ruling:-

"[5] The appellant's initial notice contained numerous grounds of appeal. However, at the hearing, his main complaint was that the High Court erred in law by making the commencement date of his sentence from the date the High Court judgment was delivered." (emphasis added)


  1. Having said that, his Lordship confined his Ruling to a consideration of ground (8) of the Notice of Appeal lodged in the Registry of the Court of Appeal on 6th December 2013. The essence of the Ruling is contained in paragraphs [6], [7], [8] and [9] of the Ruling, which are quoted below:-

"[6] The commencement date of a sentence is the date the sentence is imposed, unless the sentence is made consecutive to a pre-existing sentence. In this case, the High Court judge made the appellant's sentence concurrent, but he then ordered the sentence to commence on the date the judgment was delivered. The effect of this order is that the appellant's sentence commences not on the date it was imposed, but on a future date.


[7] Counsel for the State points out that although there is an arguable error in the judgment, the error does not affect the total sentence that the appellant has to serve. I accept this submission. The appellant is serving a sentence of 14 years' imprisonment effective from 8 August 2008. The sentence of 12 month's imprisonment is subsumed in the sentence of 14 years' imprisonment, regardless of whether the term of 12 months commences on 26 October 2010 or 23 October 2013.


[8] The error in the commencement date is only a technical error and can be corrected by issuing a fresh warrant of commitment making 26 October 2010 as the commencement date of the sentence. Otherwise, the appellant's appeal is bound to fail because he has no right to appeal under section 22 of the Court of Appeal Act."


[9] The appeal is dismissed under section 35(2) of the Court of Appeal Act. A fresh warrant of commitment is issued making 26 October 2010 (the date the sentence was imposed) as the commencement date, concurrent to his pre-existing sentence." (Emphasis added)


  1. It is evident from the above quoted paragraphs of the impugned Ruling that the single Judge of the Court of Appeal had determined in terms of section 35(2) of the Court of Appeal Act that the first seven grounds of appeal set out in the Notice of Appeal lodged in the Registry of the Court of Appeal on 6th December 2013 are bound to fail because there is no right of appeal under Section 22 of the Court of Appeal Act, and therefore the appeal ought to be dismissed, subject to the variation of the date of commencement of the term of imprisonment imposed on the Petitioner.

The Application for Special Leave to Appeal


  1. The Petitioner has sought by his Notice of Appeal dated 6th August 2014, special leave to appeal against the Ruling of the single Judge of the Court of Appeal on the following grounds:
  2. It is noteworthy that the aforesaid grounds (a), (b), (c) and (d) pleaded by the Petitioner give rise to the question whether the single Judge of the Court of Appeal erred in law by failing to entertain and consider the Petitioner's appeal against the decision of the High Court to affirm his conviction and sentence. Grounds of appeal (a), (b) and (c) above are inherently related to grounds (1) to (5) raised by the Petitioner in his Notice of Appeal lodged in the Registry of the Court of Appeal on 6th December 2013 and set out in paragraph 7 of this judgment, and likewise, ground (d) above is related to grounds (6) and (7) taken up by the Petitioner in the Court of Appeal.
  3. The gist of the Petitioner's complaint to this Court is that, the only ground specifically discussed in the impugned Ruling of the learned single Judge of the Court of Appeal was ground (8), although the Petitioner had not at any stage abandoned grounds (1) to (7) set out in his Notice of Appeal lodged in the Court of Appeal. The Petitioner, who appeared in person, has submitted that the failure of the single Judge of the Court of Appeal to consider in his impugned Ruling, "the merits of the grounds of the conviction appeal and the remand period", in effect, deprived him of his Constitutional right to appeal.
  4. It is necessary to observe at the outset that as already noted in paragraph 14 of this judgment, the single Judge of the Court of Appeal has stated in paragraph [5] of the impugned Ruling that although the Petitioner's initial notice contained "numerous grounds of appeal", at the hearing "his main complaint was that the High Court erred in law by making the commencement date of his sentence from the date the High Court judgment was delivered."
  5. The Petitioner contends and the learned Counsel for the Respondent concedes that the record nowhere indicates that the Petitioner had abandoned or did not wish to proceed with his grounds against conviction, namely, grounds (1) to (5), or the other grounds set out in the Notice of Appeal lodged in the Court of Appeal against the sentence, namely, grounds (6) and (7). It is plain that the single Judge of the Court of Appeal has not stated in his Ruling that the Petitioner abandoned any of the grounds taken up by him in the Court of Appeal against his conviction and sentence.
  6. It is common ground that the only ground of appeal which has been specifically adverted to in the impugned Ruling was ground (8), and that there is no discussion or even mention therein of any of the other grounds set out in the Notice of Appeal lodged by the Petitioner in the Court of Appeal, except for the observation by the single Judge of the Court of Appeal that the Petitioner has "no right to appeal under section 22 of the Court of Appeal Act". From this, it may be surmised that in the opinion of the single Judge of the Court of Appeal, those grounds did not give rise to any question of law or fall within either sub-paragraphs of section 22(1A) of the Court of Appeal Act.
  7. Unfortunately, the single Judge of the Court of Appeal has not offered any reasons in his Ruling for concluding that the Petitioner had no right of appeal under section 22 of the Court of Appeal Act, and it is the contention of the Petitioner that the single Judge of the Court of Appeal erred in law by determining that the other grounds of appeal urged by the Petitioner are bound to fail on the ground that the Petitioner had no right to appeal under section 22 of the Court of Appeal Act and that therefore the said appeal was liable to be dismissed in terms of section 35(2) of the said Act.
  8. In this context, 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 7(2) of the Supreme Court Act No. 14 of 1998, sets out stringent criteria 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."


  1. It is manifest from the language used in the above quoted provision of the Supreme Court Act that special leave should not 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 AV0001.1999 (179 (17 April 2003) at page 3, -

"It is plain from this provision that the Supreme Court is not at of criminal appeal or general review nor is there an appeal to the Court as a matter of r 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."


  1. 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. It is true that these are cases of applications for special leave to appeal, but the Board has repeatedly treated applications for leave to appeal and the hearing of criminal appeals as being upon the same footing: Riel's case supra; ex parte Deeming [1982] A.C. 422. The Board cannot give special leave to appeal where the grounds suggested could not sustain the appeal itself; and, conversely, it cannot allow an appeal on grounds that would not have sufficed for the grant of permission to bring it. Misdirection, as such, even irregularity as such, will not suffice: Ex parte Macrea [1893] UKLawRpAC 19; [1893] A.C. 346. There must be something which, in the particular case, deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future: Reg. v. Bertrand (1867) L.R. 1 P.C." (Empi>Emphasis added)


  1. The dictum of Lord Suwas adopted as the locus classicus on the matter wher when dealing with applications for leave to appeal to the Judicial Committee of the Privy Council from decisions of the Supreme Courts of Sri Lanka, India and Mauritius in criminal cases, respectively in Seneviratne v. The King [1936] 3 All ER 36, AIR [1936] P.C. 289, Pritam Singh v. The State AIR [1950] SC 169 and Badry v The Director of Public Prosecutions [1982] UKPC 1. The same principles have been incorporated into section 7(2) of the Supreme Court Act.
  2. In the light of these judicial decisions, it is necessary to examine whether the grounds urged, and submissions made, by the Petitioner in his Notice of Appeal seeking special leave to appeal from the impugned Ruling of a single Judge of the Court of Appeal, are of sufficient substance to cross the stringent threshold laid down in section 7(2) of the Supreme Court Act.
  3. The grounds on which the Petitioner seeks leave to appeal from this Court as set out in paragraph 11 of this judgment, give rise to the question whether the single Judge of the Court of Appeal erred in law by failing to entertain and consider the Petitioner's appeal against the decision of the High Court to affirm his conviction and sentence. This is important in view of the fact that one of the fundamental rights enshrined in Chapter 2 (Bill of Rights) of the Constitution of the Republic of Fiji, 2013 is the right to a "fair trial" (Section 15(1)) guaranteed to every person charged with an offence, and the failure to entertain and consider an appeal that lies to the Court of Appeal "as of right" (Section 99(5)) might render the said fundamental right nugatory.
  4. While the Petitioner has submitted that he has been deprived of his right of appeal to the Court of Appeal by reason of the determination in paragraph [8] of the impugned Ruling of the single Judge of the Court of Appeal that the Petitioner's appeal is bound to fail because he has no right to appeal under section 22 of the Court of Appeal Act, learned Counsel for the Respondent has submitted that the Petitioner's application for special leave to appeal would not involve a question of general legal importance or a substantial question of principle affecting the administration of criminal justice occasioning substantial and grave injustice, if in fact the single Judge of the Court of Appeal was right in concluding that the Petitioner had no right of appeal under section 22 of the Court of Appeal Act.
  5. Section 22 of the Court of Appeal Act provides as follows:-

"(1) Any party to an appeal from a Magistrates' Court to the High Court may appeal, under this Part, against the decision of the High Court in such appellate jurisdiction to the Cof Appeal on any ground ofnd of appeal which involves a question of law only:


Provided that no appeal shall lie against the confirmation by thh Court of a verdict of acquittal by a Magistrates' Court.

(1A) No appeal under subsection (1) lies in respect of a sentence imposed by the High Court in its appellate jurisdiction unless the appeal is on the ground-


(a) that the sentence was an unlawful one or was passed in consequence of an error of law;

(b) that the High Court imposed an immediate custodial sentence in substitution for a non-custodial sentence." (emphasis added)
  1. It will therefore be necessary to examine grounds (1) to (5) of the Petitioner's Notice of Appeal filed in the High Court to decide whether the single Judge of the Court of Appeal erred in assuming that the grounds urged by the Petitioner did not involve any question of law, and thereafter to examine grounds (6) and (7) of the Petitioner's said Notice of Appeal to decide whether likewise the single Judge of the Court of Appeal erred in assuming that the said grounds did not make the sentence imposed by the magistrate unlawful or the consequence of any error of law within the meaning of section 22(1A) of the Court of Appeal Act. Only by such an examination can it be ascertained whether there is sufficient basis to grant special leave to appeal in the circumstances of this case.

Ground (1) - Failure to take up case for trial within reasonable time


  1. This ground against conviction is founded on the alleged delay on the part of the trial magistrate in taking up the case for trial within a reasonable time. This Court has time and again stressed that significant delay in bringing the case to court for trial could result in a substantial miscarriage of justice (Praveen Ram v The State [2012] FJSC 12; CAV0001.2011 (9 May 2012) paragraph 75), and in Nalawa v The State [2010] FJSC 2, CAV 0002.2009, this Court did emphasise the right of every accused to a fair trial without unreasonable delay, which is guaranteed by Art. 8 of the Universal Declaration of Human Rights to which Fiji is a party, and Art. 9(3) of the International Covenant on Civil and Political Rights, the provisions of which have since been incorporated into the Crimes Decree of 2009
  2. The Petitioner has complained that the delay was unreasonable and caused him grave prejudice and resulted in a miscarriage of justice. In this context, it is material to note that the petitioner was arrested on 20th February 2007 and was charged in the Magistrates' Court on 23rd February 2007. The case was taken up for hearing on 22nd June 2010, and the time that elapsed between the charge and the trial was approximately 3 years and 4 months. The question therefore is whether this delay in bringing the Petitioner to court was unreasonable in the circumstances of this case.
  3. It is noteworthy that when the Petitioner was produced before the magistrate on 23rd February 2007, the court observed that there were 5 bench warrants pending against the petitioner in Lautoka Magistrates' Court cases bearing Nos. 600/05; 601/05; 602/05; 605/05 and 664/05. The Petitioner was remanded in custody. Although it is unnecessary to refer to all the dates on which the case was thereafter mentioned or taken up before the magistrate prior to 22nd June 2010, on which date the case was taken up for trial and concluded, it would suffice to observe that the inclination of the Petitioner to avoid attending court on the dates when it was due to be taken up, the multiplicity of cases then pending against the Petitioner and some dilatory tactics adopted by him were the primary factors that prevented the case from being taken up for trial on an earlier date.
  4. Although during the major part of the period in question the Petitioner was in remand custody, on two dates, namely 8th March 2007 and 8th June 2007, the case had to be adjourned as the Petitioner, having been bailed out in other cases in which he was involved and inexplicably released by the escorting officer, did not attend court though aware of the dates. Here the Petitioner kept away from court on his own volition.
  5. The case had gone down on three other occasions, namely on 24th January 2008, 7th February 2008 and 1st September 2008 as the Petitioner had to attend the High Court in cases where he was accused of other offences, and on two other dates, namely 3rd November 2008 and 17th September 2009, the case was adjourned as the Petitioner had just been sentenced to terms of imprisonment in other cases and taken to jail.
  6. Apart from this, the case had to be adjourned on several dates as the Legal Aid Commission was processing the Petitioner's application for assistance. On 11th March 2008 the case was adjourned when the Petitioner indicated that he wanted to apply for stay of proceedings, to enable him to apply for stay on each file. On 26th October 2009, 18th September 2009 and 14th December 2009, the case was adjourned to enable the Petitioner to consider a change of plea.
  7. In these circumstances, I am of the opinion that in fact there was no unreasonable delay on the part of the State in prosecuting the Petitioner. I am also of the opinion that the learned single Judge of the High Court did not err in concluding that ground (1) urged by the Petitioner in the High Court was bound to fail because in the absence of any question of law arising, the Petitioner had no right of appeal under Section 22(1) of the Court of Appeal Act.

Ground (2) – Denial of the right to legal representation


  1. The second complaint of the Petitioner was that his right to a fair trial was prejudiced, breached and violated when the trial magistrate deprived him of the right to legal representation. Art. 13(1)(c) of the Constitution of the Republic of Fiji confers on every person who is arrested and detained, a right to the services of a legal practitioner under a scheme for legal aid under the Legal Aid Commission.
  2. However, an examination of the Magistrates' Court record would show that the Petitioner's complaint was entirely baseless. On 10th April 2010, when the magistrate raised the question of legal representation for the Petitioner, it was brought to the notice of court by the prosecution that the Petitioner had not applied for legal aid, and the accused himself had responded with the words "I will defend myself".
  3. After the Petitioner pleaded to the charge on 19th April 2007, the Petitioner had applied for legal aid, and on the very next date, namely 30th April 2007, the magistrate was informed of it and an adjournment was granted to enable the Legal Aid Commission to take a decision as to whether its officers could assist the Petitioner. Mr. T. Terere of the Legal Aid Commission had in fact appeared for the Petitioner on 14th May 2007, 25th May 2007 and 8th May 2007 pending the processing of his application for legal aid. However, it would appear that on the subsequent dates the Petitioner had no legal assistance, and when on 23rd July 2009 the case was being adjourned as a subpoenaed witness was not present in court, the magistrate himself inquired about legal representation, and the following exchange took place:-

"Court: Want a lawyer?

Accused: No.

Prosecution: Asking a bench warrant for police officer.

Accused: Case going on for 2 years. Prosecution took hearing date. I came from Naboro, came ready for hearing, asking for discharge under Section 198.

Prosecution: We have issued subpoena. Don't know why witness not in Court

Court: After hearing both Accused and Prosecution I see that it is not the Police fault that the case cannot proceed, the witness was subpoenaed but not present."


  1. The Petitioner appeared in person when this very application was taken up for hearing before this Court, and he was both articulate and knowledgeable. I am firmly of the view that in all these circumstances, the learned single Judge of the Court of Appeal cannot be faulted for concluding that ground (2) urged by the Petitioner in the High Court was bound to fail on the basis that there was no right to appeal in terms of Section 22(1) of the Court of Appeal Act.

Ground (3) – Basing decision on prosecution utterance


  1. The third ground raised by the Petitioner against his complaint is that the trial magistrate erred in law in basing his decision on the "prosecution utterance" referred to at paragraph 19 of the judgment of the Magistrates' Court dated 3rd September 2010. As already noted in paragraph 8 of this judgment, the crucial finding against the Petitioner was contained in paragraph 18 of the judgment of the learned magistrate, and in paragraph 19 of his judgment the learned magistrate was dealing with the question whether the Petitioner was assaulted while he was in the police vehicle, that is after the arrest had been in fact has been effected. To facilitate appreciation of the Petitioner's submission, I quote below paragraph 19 of the said judgment in full:-

"However, the accused constantly alleged that the police officers assaulted him after he agreed to get into the police vehicle. A police officer has a right to use reasonable and minimum force when arresting an accused. But it should be noted that an accused person cannot be subject to violence in police custody. The accused said while giving evidence that he was given a legal aid counsel at the Police Station on his request. But it does not appear that the accused has taken proper remedies with the assistance of the Legal Aid Counsel if he was assaulted as he claims. At least the accused had not said at the interview that he was assaulted by the Police Officers. He has refused to answer at the caution interview." (emphasis added)


  1. The petitioner has submitted before this court that the words of paragraph 19 which have been highlighted are clearly inconsistent with, and repugnant to, the records of the interview which have been included in the Supreme Court brief (pages 51 – 55). If so, it is the Petitioner who should have taken steps to have the notes of the caution interview produced in evidence, since the prosecution did not produce these notes or attempt to rely on them. In any event, it appears from pages 52 and 53 of the brief that the Petitioner had refused to sign the notes of interview, and it is abundantly clear from paragraph 19 of the judgment that the magistrate was unaware of the contents of the caution interview, but had remarked that the Petitioner "has refused to answer at the caution interview" probably because it transpired in evidence that the Petitioner had refused to sign the notes of the caution interview.
  2. In fact, in the course of his submissions before this Court, the Petitioner complained that the petitioner had made an application on 25th April 2013 before the High Court in Lautoka in terms of section 257 of the Criminal Procedure Decree of 2009 for an order for the production of the notes of the caution interview and the medical reports. However, it is apparent from the record of the High Court that the Petitioner that the petitioner had failed to mention his application for fresh evidence when the case was called in the High court on 30th April 2013 to have the hearing refixed, nor did he pursue his application at any stage thereafter before the High Court, the Court of Appeal or this Court.
  3. In these circumstances, it is manifest that the single judge of the Court of Appeal did not err when he did not entertain ground (3) of the Notice of Appeal lodged in the Court of Appeal on the basis that it did not give rise to any question of law and was bound to fail because it did not give rise to a ground of appeal.

Ground (4) – The police officer was without a warrant of arrest


  1. The next ground taken up by the Petitioner before the court of appeal against his conviction was that he was wrongfully arrested for the offence of resisting arrest simply because "the arrester was without the warrant of arrest in his custody."
  2. The police officer who arrested the Petitioner, Autiko Kuricuva has testified in court on 20th February 2007, the day on which the Petitioner was arrested, he was on caravan duty, which is like a mobile police post. He has further testified that he and some other police officers "were briefed to take note of well known criminals and with bench warrants" and that one such name briefed to them was that of the Petitioner. Autiko Kuricuva was aware that there was a bench warrant for the arrest of the Petitioner and he had done his duty to give effect to the bench warrant, and this fact is confirmed by the proceedings of the Magistrates' Court of 20th February 2007 wherein it is recorded that there were 5 bench warrants against the Petitioner.
  3. I do not see any question of law that would make the said ground an arguable one within the meaning of Section 22(1) of the Court of Appeal Act.

Ground (5) – Use of unreasonable and unlawful force to effect the arrest


  1. The fifth ground taken up against the conviction by the Petitioner is that while he did not use any force on the arresting officer to resist arrest, the force used on him by the arrester was unreasonable and unlawful in that the petitioner has sustained permanent injury to his ear. This is simply a question of fact and the magistrate has taken into consideration the evidence of Autiko Kuricuva and that of Police Constable Mohammed Harif who was called by Kuricuva for assistance when the Petitioner resisted the arrest. It is abundantly clear that the Petitioner sustained some injury, but while it is the position of the Petitioner that he sustained the injury on his left ear, Kuricuva has testified that it was the Petitioner's left arm that got hurt when it hit the lamp post. It is in evidence that the Petitioner was taken to the hospital, but the Petitioner has failed to ensure the production of the medical report, and none is available in the record.
  2. Here again, it is clear that the single judge of the Court of Appeal cannot be faulted for assuming that this ground did not give rise to any question of law and was bound to fail because it did not give rise to a ground of appeal.

Ground (6) – Failure to give credit to time spent on remand


  1. This ground was raised by the Petitioner against his sentence, and it is his contention that the failure by the single Judge of the Court of Appeal to consider the period of time spent by him in remand prior to his conviction should have been treated as pre-sentence already served. However, it is noteworthy that the error of the learned magistrate in not considering the period of his remand when sentencing the Petitioner was readily conceded by the State in the High Court, and it appears from paragraphs 14 and 15 of the Judgment of the High Court dated 23rd October 2013 that this was a factor that persuaded the learned High Court Judge to make order that the sentence imposed by the magistrate should run concurrently with the sentence he is already serving.
  2. In these circumstances, there was no matter to be looked into by the single Judge of the Court of Appeal in regard to this ground.

Ground (7) - Failure to give credit to the injuries sustained


  1. The Petitioner's next ground of appeal was that injuries sustained by the Petitioner justified a reduction in sentence, but no credit was given with respect to such injuries. However, as already noted, there was no medical report produced in this case, and this ground cannot be sustained in the absence of medical evidence.

Conclusions


  1. Having examined the grounds set out in the Petitioner's Notice of Appeal lodged in the Registry of this Court dated 6th August 2014 in the light of the grounds raised by the Petitioner in his Notice of Appeal lodged in the Registry of the Court of Appeal on 6th December 2013, none of which gave rise to any question of law or any violation of section 22(1A) of the Court of Appeal Act, I find no merit in the submission of the Petitioner that by the impugned Ruling of the single Judge of the Court of Appeal, he was deprived of his right of appeal to the Court of Appeal.
  2. I am of the opinion that for the reasons noted above, the application of the Petitioner for special leave to appeal has to be refused as none of the grounds advanced by the Petitioner for seeking such leave to appeal involve any question of general legal importance or a substantial question of principle affecting the administration of criminal justice occasioning substantial and grave injustice, set out in section 7(2) of the Supreme Court Act.
  3. There remains one question pertaining to the jurisdiction of a single judge of the Court of Appeal that has to be addressed before parting with this judgment. This relates to paragraphs 8 and 9 of the impugned Ruling of the single Judge of the Court of Appeal, whereby, while dismissing the appeal of the Petitioner in terms of section 35(2) of the Court of Appeal Act, the single judge purported to issue a fresh warrant of commitment making 26th October 2010, which was the date of the sentence imposed by the magistrate, as the commencement date of the sentence.
  4. The single Judge of the Court of Appeal was quite right in his intentions, but acted without jurisdiction as neither section 35(1) nor section 35 (2) of the Court of Appeal Act conferred him with the power to correct any error that may have been made by the High Court without first granting leave to appeal in terms of section 35(1) of the Court of Appeal Act to enable the matter to be considered by the Court of Appeal as duly constituted for the hearing and determining of appeals under the Court of Appeal Act.
  5. In these circumstances this Court would not delay proceedings by remitting this case to the Court of Appeal to be considered by a properly constituted bench of that Court, but would exercise its powers in terms of section 14 of the Supreme Court Act and issue a fresh warrant of commitment making 26th October 2010, which was the date of the sentence imposed by the magistrate, as the commencement date of the sentence of 12 months imprisonment, which would run concurrently with any sentence that the Petitioner is currently serving.
  6. We accordingly make order as follows:-

Hon. Justice Saleem Marsoof
Judge of the Supreme Court


I agree.


Hon. Justice Sathyaa Hettige
Judge of the Supreme Court


I agree.


Hon. Justice Buwaneka Aluwihare
Judge of the Supreme Court


Solicitors:
Petitioner in Person.
Office of the Director of Public Prosecutions for the Respondent.

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