Tukana v State [2016] FJSC 23; CAV 0024.2015 (22 June 2016)

IN THE SUPREME COURT OF FIJI
[CRIMINAL APPELLATE JURISDICTION]

CRIMINAL PETITION NO: CAV 0024 OF 2015

[Court of Appeal No: AAU0042 of 2006S]

BETWEEN : JOSAIA TUKANA

Petitioner

AND : THE STATE

Respondent

Coram : The Hon. Justice Priyantha Fernando,
Acting President of the Supreme Court

The Hon. Justice Saleem Marsoof,
Justice of the Supreme Court

The Hon. Justice Sathyaa Hettige,
Justice of the Supreme Court

Counsel : The Petitioner in Person
Ms. P. Madanavosa for the Respondent

Date of Hearing : 10^th June 2016

Date of Judgment : 22^nd June 2016

JUDGMENT OF THE COURT

[1] The Petitioner was convicted by the High Court at Suva [Shameem J] on 3^rd July 2006 for the murder, contrary to section 199 of the Penal Code, Cap 17, of Naomi Marama, with whom he was in a de facto relationship.

[2] He was sentenced to life imprisonment as mandated by section 200 of the Penal Code, but in view of the submission of the learned Counsel for the State indicating that he would not ask a minimum term to be fixed, the trial judge declined to fix a minimum term of imprisonment.

[3] On 14^th July 2006 the Petitioner appealed to the Court of Appeal against his sentence under section 21(1) of the Court of Appeal Act, Cap.12. On 14^th August 2006, Ward P, as a single Judge of Appeal, granted leave to the Petitioner to appeal his sentence on the narrow issue that the learned trial judge should have applied section 33 of the Penal Code, Cap. 17.

[4] However, the Court of Appeal on 11^th June 2007 reviewed the matter and decided that the interests of justice require the Petitioner to be assigned Counsel to advise him to appeal against conviction and represent him at the hearing. Accordingly, Mr. I.Q. Samad was assigned to advise and appear for the Petitioner.

[5] It was thereafter that the matter was taken up for hearing before a full bench of the Court of Appeal [Byrne JA, Pathik JA and Mataitoga JA] on 28^th August 2007, and the Court delivered its judgment dated 22^nd October 2007. However, the Petitioner’s appeal only succeeded against sentence, whereby the Court of Appeal fixed a minimum term of 15 years of imprisonment which was to be effective from the date of his current sentence commenced. The Petitioner’s appeal against his conviction did not succeed.

[6] The Petitioner sought leave of the Court of Appeal in terms of section 122(2)(a) of the Constitution of Fiji 1997 to appeal against the said judgment of the Court of Appeal dated 22^nd October 2007, and after a hearing in which the Petitioner appeared in person, the Court of Appeal on 8^th April 2008, refused leave to appeal to the Supreme Court.

[7] By his petition to this Court dated 14^th July 2015, the Petitioner prays for enlargement of time to seek special leave of the Supreme Court in terms of section 98 of the Constitution of the Republic of Fiji against the decision of the Court of Appeal dated 22^nd October 2007.

Application for Special leave to Appeal

[8] In paragraph (2) of his petition dated 14^th July 2015, the Petitioner has stated that he does not challenge the decision of the Court of Appeal against his sentence and only seeks enlargement to time to seek special leave to appeal against his conviction.

[9] The grounds set out in paragraph (2) of his aforesaid petition for seeking special leave to appeal as well as enlargement of time are as follows:-

(a) There was no clear and succinct direction to the assessors during trial as to whether the petitioner could have foreseen the probability of death as the natural consequence of his act;

(b)The learned trial judge failed in not adequately directing / misdirecting the assessors that the prosecution evidence and witnesses before the court must prove beyond reasonable doubt the Petitioner’s guilt when there were serious doubts in the prosecution case and as such the benefit of the doubt ought to have been given to the Petitioner;

(c)The failure of the trial judge to exercise his discretion to overrule the unanimous verdict of the assessors in circumstances when evidence of manslaughter is available before the trial court;

(d) The medical findings were ambiguous to the assessors and created plain perplexity, this puzzled their deliberations as layman; and

(e) The trial court must be fair upon all the evidence placed before the assessors who are not chosen for their understanding but are expected to exercise practical common sense.

[10] This Court has the exclusive jurisdiction in terms of Section 98(3)(b) of the Constitution of the Republic of Fiji, “subject to such requirements as prescribed by written law, to hear and determine appeals from all final judgments of the Court of Appeal.” As provided in Section 98(4) of the Constitution, no appeal may be brought to the Supreme Court from a final judgment of the Court of Appeal “unless the Supreme Court grants leave to appeal.”

[11] While section 7(2) of the Supreme Court Act No. 14 of 1998, sets out stringent threshold criteria for the grant of special leave to appeal in criminal cases, Rule 6(a) of the Supreme Court Rules of 1998 provides that any application for special leave to appeal against a decision of the Court of Appeal must be by way of petition supported by affidavit, and "be lodged at the Court registry within 42 days of the date of the decision from which special leave to appeal is sought."

[12] The Petitioner lodged his aforesaid petition on 14^th July 2015 more than 7 years and 8 months after the pronouncement of the impugned judgment of the Court of Appeal on 22^nd October 2007.

[13] In these circumstances, the Petitioner is required by law to first seek an enlargement of time for him to pursue his application for special leave to appeal.

Application for Enlargement of Time

[14] It is trite law that the Supreme Court has the power to grant enlargement of time, in appropriate cases, for a person to pursue any application for which a rule of court has prescribed a time limit even when he has failed to lodge his application within the stipulated time limit.

[15] It appears from the decisions of this Court such as State v Ramesh Patel Criminal Appeal No.AAU0002 of 2002S (15 November 2002); Enele Cama v The State, [2012] FJSC 4; CAV0003.09 (1 May 2012), Kamalesh Kumar v State; Sinu v State [2012] FJSC 17; CAV0001.2009 (21 August 2012), Rasaku v The State [2013] FJSC 4; CAV0009, 0013.2009 (24 April 2013), Codrokadroka v State [2013] FJSC 15; CAV07.2013 (20 November 2013) Volivale v The State [2015] FJSC 1; CAV0004.2014 (23 April 2015), Tiritiri v. The State [2014] FJSC 15 CAV9.2014 (14th November 2014), Donu v The State [2015] FJSC 19; CAV0014.2014 (20 August 2015) and Nabainivalu v State [2015] FJSC 22; CAV027.2014 (22 October 2015) that enlargement of time is granted at the discretion of Court.

[16] Enlargement of time is not granted as a matter of course, but only if exceptional circumstances exist to justify the grant of additional time to comply with the rules of Court, in an endeavor to avoid or redress some grave injustice that might otherwise occur from the strict application of such rules of court. The objective of the discretion possessed by this Court in this regard is to ensure that such a rule of court does not become an instrument of injustice.

[17] The factors that should be taken into consideration when dealing with enlargement of time were summarised by this Court in its judgment in Kamalesh Kumar v State; Sinu v State [2012] FJSC 17; CAV0001.2009 (21 August 2012). They are:

(i) The reason for the failure to file within time.

(ii) The length of the delay.

(iii) Whether there is a ground of merit justifying the appellate court’s consideration.

(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?

(v) If time is enlarged, will the Respondent be unfairly prejudiced?

[18] These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargement of time. Ultimately, it is for the court to uphold its own rules, while always endeavouring to avoid or redress any grave injustice that might result from the strict application of these rules.

(i) Reason for the Delay

[19] At the hearing before this Court, the Petitioner appeared in person, and relied on paragraph (5) of his Petition to submit that after the dismissal of his appeal against conviction by the Court of Appeal, he lost all hope since his defence Counsel failed to advise him fully about his remedies. He further submitted that although there is substantial delay in lodging his application for special leave to appeal, he sought the indulgence of Court in view of the grave miscarriage of justice he claimed to have occurred in the course of his trial.

[20] The Petitioner stated that he was not aware that his application for enlargement of time and special leave to appeal should have been supported by affidavit. However, since the Petitioner appeared in person, and as a serving prisoner had little or no access to legal advice, this Court will consider with sympathy whether an enlargement of time may be granted to the Petitioner to pursue his application for special leave to appeal before this Court.

(ii) Length of the Delay

[21] The impugned judgement of the Court of Appeal against which the Petitioner seeks special leave to appeal was pronounced on 22^nd October 2007. Accordingly, the period of 42 days prescribed in Rule 6(a) of the Supreme Court Rules for the lodging of an application for special leave to appeal to this Court would have expired on 6^th November 2007. However, the Petitioner has lodged his application for enlargement of time and special leave to appeal in the Registry of this Court only on 14^th July 2015, more than 7 years and 8 months out of time.

[22] The Fiji Supreme Court has consistently held that a short period of delay may be disregarded by the Court if it thinks fit, but where a substantial interval of time elapses, it must not be taken for granted that an extension of time will be allowed as a matter of course without satisfactory reasons. Explaining the approach of our courts, in Kamalesh Kumar v State; Sinu v State, supra, Chief Justice Anthony Gates in paragraph [9] of his judgment quoted the following dictum from The Queen v Brown (1963) SASR 190 at 191-

“The practice is that, if any reasonable explanation is forthcoming, and if the delay is, relatively, slight, say for a few days or even a week or two,Court will readily extend the time, provided that there here is a question which justifies serious consideration.”(Emphasis added)

[24] In Nabainivalu v State [2015] FJSC 22; CAV027.2014 (22 October 2015), this Court held that a delay of 141 days after the pronouncement of the Ruling that was sought to be impugned in that case amounted to substantive delay, and would not justify an enlargement of time in the absence of a question which justifies serious consideration. As in this case where the period of delay is approximately 7 years and 8 months, this Court will be extremely reluctant to grant enlargement of time except in a case involving some blatant miscarriage of justice.

(iii) Merits of the Case

[25] It will therefore be necessary to look at the circumstances of the case to see whether some blatant miscarriage of justice has taken place in the course of the Petitioner’s trial that would justify the grant of enlargement of time after such a long period of delay.

[26] The Petitioner has been convicted after trial, of the murder of one Naomi Marama, who was at the time of her death, in a de facto relationship with the Petitioner, and was 3 or 4 months pregnant. At that time they lived at the Petitioner’s parents’ house at Wainunu Settlement, Wainibuku Road, Suva.

[27] At about 6 pm on 16^th February 2005, which was the day of the incident, the Petitioner went to pick Naomi Marama from her parents’ house as she was not feeling well. According to the Petitioner’s police statement, on their way home, Naomi asked the Petitioner angrily why he was late in picking her up. She swore at him saying “Mgaitinamu” and some other swear words. According to the Petitioner, he could not control his anger and he punched her on the back of her head causing her to fall on the tar-sealed road.

[28] The main witness to the incident was Sekove Soronakadavu, who testifying at the trial, stated that he saw the Petitioner with the deceased Naomi on the road, and saw him punch Naomi on the mouth causing her to fall on the road. Sekove also saw the Petitioner stomping on her stomach and punching and kicking Naomi. Sekove stated in evidence that he asked the Petitioner “What are you doing?” and told him to step aside and don’t touch the girl. Sekove then carried Naomi to a driveway nearby and laid her down. Sekove further testified that he told his companion Apolosi to get some water which he poured on Naomi. Naomi was unconscious but when Sekove called her responded saying “Mmm?” When Sekove suggested that they take Naomi to the hospital, the Petitioner had said that he is her husband and he would take her. When Sekove moved two steps away, he saw the Petitioner kick Naomi’s head again. Sekove and Apolosi then walked away and the matter was later reported to the police.

[29] In this context, the grounds urged by the Petitioner for enlargement of time and special leave to appeal (which are fully set out in paragraph [9] of this judgment) may now be examined, albeit briefly.

[30] As far as ground (a) is concerned, it is clear from the summing up of the learned trial judge that she did give clear directions to the assessors as to whether the petitioner could have foreseen the probability of death as the natural consequence of his act. The learned trial judge also directed the assessors on the lesser offence of manslaughter where she stated at page 82 of the Court Record that “the second issue for you to decide is whether the accused acted with malice aforethought.” The learned trial judge then continued as follows:

“Did the Accused assault Naomi by kicking, punching and stamping on her? Did he cause her to fall on the tar-sealed road, and did he assault her knowing that she would probably be seriously harmed? If you accept the Accused’s version of events in his caution interview and reject the version of Sekove Soronakadavu, bearing in mind that the prosecution has the burden of proving the Accused’s guilt, are you satisfied beyond reasonable doubt that when he punched her he did so knowing that she would probably be seriously harmed?” [page 82 of the Court Record]

[31] The Court of Appeal at paragraph [11] of its impugned judgment dated 22^nd October 2007 observed that the summing up of the learned judge quoted above on the issue of malice afterthought was correct, and was “fair in putting the evidential issues to the assessors, leaving it for them to decide which testimony to believe or not.” We do not have reason to disagree with the Court of Appeal.

[32] Ground (b) advanced by the Petitioner in his petition is that the learned trial judge failed in not adequately directing / misdirecting the assessors that the prosecution evidence and witnesses before the court must prove beyond reasonable doubt the Petitioner’s guilt when there were serious doubts in the prosecution case and as such the benefit of the doubt ought to have been given to the Petitioner. We do not see any merit in this ground, as the learned trial judge had properly and adequately directed the assessors on the prosecution’s case and also of the defence’s case. The learned trial judge had specifically directed that “it is the prosecution that must satisfy the assessors beyond reasonable doubt that when the Accused punched the deceased he did so knowing that she would probably be seriously harmed”.

[33] In regard to the submissions made in the Court of Appeal on behalf of the Petitioner in regard to the allegedly inconsistent statements of witnesses who had testified at the trial, the Court of Appeal has in paragraph [12] of its judgment dated 22^nd October 2007 observed as follows:-

“On the matter of the inconsistent statement by PW1 Sekove Soronakadavu, the learned trial Judge put this issue to the assessors to consider and in so doing to be satisfied beyond reasonable doubt which version of events to believe. The assessors rejected the accused’s version of the assault and accepted Sekove Soronakadavu’s version of it.”

[34] While we are satisfied that the learned trial judge had correctly and fairly directed the assessors on some of the other alleged inconsistencies in the prosecution evidence adverted to by the learned Counsel for the Petitioner in his submissions before the Court of Appeal, we are of the opinion that the Court of Appeal had rightly rejected those submissions. In particular, we note that the submission that the evidence of Sekove Soronakadavu was not consistent with the testimony of Apolosi Tikoicolo, was altogether unfounded in that the latter had testified in his examination in chief, and not only in his cross examination as suggested by learned Counsel for the Petitioner in the Court of Appeal, that-

“We saw Tukana and his wife in the road. I saw him punch his wife beside the road on the roadside. I saw him punch his wife twice. He punched her on the mouth.”(page 136 of the Court Record)

[36] Ground (c) that has been urged by the Petitioner is to the effect that the learned trial judge failed to exercise his discretion to overrule the unanimous verdict of the assessors in circumstances when evidence of manslaughter is available before the trial court. We find that the learned trial judge in his summing up had correctly directed the assessors on the lesser charge of manslaughter. At page 74 of the Court Record, the learned trial judge explained to the assessors that the offence of manslaughter “is the killing of someone by an unlawful act, but without malice aforethought.”

[37] Furthermore, it is pertinent to note that at page 83 of the Court Record, the learned trial judge directed the assessors as follows;-

“Did Naomi Marama swear at him? Did it provoke him into assaulting her? Would it have provoked an ordinary man in the Accused’s shoes? And was the assault on her proportionate to the provocation she offered? If you are satisfied beyond reasonable doubt that the Accused caused the death of the deceased with malice afterthought and not under provocation, you may find him guilty of murder. If you have a reasonable doubt about whether he was provoked or whether he had malice after thought, you must find him guilty of manslaughter. If you have a reasonable doubt about whether he caused Naomi’s death, you must find him not guilty of any offence. (Emphasis added]

[38] In our view, ground (c) does not justify further scrutiny as we are satisfied and agree with the decision of the Court of Appeal that the learned trial judge had correctly directed the assessors on the issue of provocation and the alternative verdict of manslaughter. In our view, the prosecution evidence in this case is so overwhelming that there was no question of the trial judge disagreeing with the unanimous verdict of the assessors.

[39] The next ground urged by the Petitioner as ground (d) relates to the medical evidence in the case. However, there is little that can be made of it, the way it is formulated. The ground is: “The medical findings were ambiguous to the assessors and created plain perplexity, this puzzled their deliberations as layman.” It is difficult to see on what basis the Petitioner is able to submit about the deliberations of the assessors.

[40] There was no ambiguity in the medical evidence, and the learned trial judge had properly directed the assessors on the evidence. Dr Josese Turagava, who had treated the deceased Naomi on her admission to the hospital testified (at page 146 of the Court Record) that she was brought in an unconscious state and on examination had a Glasgow Coma scale of 3. She had a densely swollen erythema. The whole of her forehead was swollen and red. There were severe lacerations around the right eye with black ecchymosis under the right eye. Her pupillary reflex indicated brain death on the right side, and the left side of the brain was in the verge of death. Her mouth was disfigured with lacerations to upper and lower lips, which were swollen. They adopted medical procedures to relieve pressure on the head.

[41] Dr. Sambekar Prashant, who conducted the post-mortem examination also testified producing his report which was marked in evidence. After describing the injuries on the deceased, he also stated that her lungs were congested as a reaction to the diffuse swelling of the brain. The spleen had undergone decomposition (autolysis) and the stomach had blood tinged contents. The liver was congested as a result of the accumulation of blood. The cause of death was cerebral injuries. He also stated that there was an 11centimeter long fetus in the uterus showing 12 to 16 weeks old pregnancy.

[42] Of course, there was a question of causation which had also been dealt with in the summing up of the learned trial judge. This aspect of the matter was examined by the Court of Appeal in its impugned judgment dated 22^nd October 2007, as well as the later judgment of the Court of Appeal dated 8^th April 2008 by which the Petitioner was refused leave to appeal to the Supreme Court from the former judgment. As the Court of Appeal mentioned in paragraph 13 of its judgment of 8^th April 2008-

“Although the appellant appears convinced that his wife may not have died if the operating doctors had better equipment or if different medical procedures had been followed, these were matters considered by the trial judge and the Court of Appeal. In particular, the issue of causation (medical negligence or assault by the appellant) was considered at some length. It does not involve a novel legal issue and has been considered by Courts in many jurisdictions over a long period of time. See R v Smith [1959] 2 All.ER 193 and Vereimi Ikanaiwai v. Reginam [1986] 32 FLR 156.”

[43] Ground (e) is more of a statement than a ground of appeal. It asserts that the trial court must be fair upon all the evidence placed before the assessors who are not chosen for their understanding but are expected to exercise practical common sense. This statement is true, but there has been no suggestion that the learned trial judge had not been fair, and the perusal of the Court Record shows that the trial was conducted fairly, and the directions to the assessors contained in the summing up were correct and fair.

(iv)Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?

[44] This brings us to the next matter that should be examined when considering enlargement of time. Where, as in this case, there is substantial delay in lodging the application seeking special leave to appeal, has the Petitioner been successful in establishing that there is or are grounds of appeal that will probably succeed? This question has to be answered in the negative, as it is abundantly clear that all the grounds urged by the Petitioner in his petition, fail to satisfy the threshold criteria set out in section 7(2) of the Supreme Court Act, and there was no miscarriage of justice occasioned in the course of the trial that could justify the grant of enlargement of time for the Petitioner to seek special leave to appeal against the judgment of the Court of Appeal dated 22^nd October 2007.

(v) If time is enlarged, will the Respondent be unfairly prejudiced?

[45] The final question that has to be considered is whether the grant of enlargement of time will prejudice the Respondent. The Respondent in this case is the State, which would not usually be gravely prejudiced by the enlargement of time in a criminal case, as the public interest would require that not only offenders against the law are brought to justice, but also that justice is done in relation to those who are innocent or whose culpability is minimal. However, given that there is substantial and extra-ordinary delay of more than 7 years and 8 months in invoking the jurisdiction of this Court, and there is no evidence whatsoever of any miscarriage of justice having occurred in the course of the trial or thereafter, we are of the opinion that the Respondent will be unfairly prejudiced by the grant of an enlargement of time to pursue special leave to appeal.

Conclusion

[46] In these circumstances, we are of the opinion that in the light of the considerations set out in paragraphs [16] to [18] of this judgment, no enlargement of time can be allowed to the Petitioner.

[47] In any event, we are of the view that no useful purpose will be served by granting the Petitioner an enlargement of time to pursue his application for special leave to appeal as it is clear on the analysis of the grounds of appeal urged by the Petitioner that he will inevitably fail to satisfy the stringent threshold criteria set out in section 7(2) of the Supreme Court Act of 1998 for the grant of special leave to appeal to this Court, as his appeal does not involve any question of general legal importance or any substantial question of principle affecting the administration of criminal justice, nor has he been able to show that any substantial and grave injustice could occur if special leave to appeal is refused.

[48] For all these reasons, we refuse the Petitioner’s application for enlargement of time to seek special leave to appeal from this Court, and dismiss his petition dated 14^th July 2015.

Orders of Court

We accordingly make order as follows:-

(1) Enlargement of time is refused.

(2)The petition of the Petitioner dated 14^th July 2015 is dismissed.

The Hon. Justice Priyantha Fernando
Acting President of the Supreme Court

The Hon. Justice Saleem Marsoof
Judge of the Supreme Court

The Hon. Justice Sathyaa Hettige
Judge of the Supreme Court

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