Aziz v State [2016] FJSC 26; CAV 0035.2015 (22 June 2016)

IN THE SUPREME COURT OF FIJI
[CRIMINAL APPELLATE JURISDICTION]

CRIMINAL PETITION NO: CAV 0035 OF 2015

[Court of Appeal No: AAU0112. 2011]

BETWEEN : ABDUL AZIZ

Petitioner

AND : THE STATE

Respondent

Coram : The Hon. Justice Saleem Marsoof,
Acting President of the Supreme Court

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

The Hon. Justice Suresh Chandra,
Justice of the Supreme Court

Counsel : Petitioner in Person

Mr. L. J. Burney for the Respondent

Date of Hearing : 14^th June 2016

Date of Judgment : 22^nd June 2016

JUDGMENT OF THE COURT

[1] The Petitioner seeks special leave to appeal from the judgment of the Court of Appeal [Calanchini P, Basnayake JA, and Madigan JA] dated 13th July 2015, which affirmed his conviction in the High Court of Fiji in Suva [Fernando J.] on one count of murder contrary to section 237 of the Crimes Decree, 2009, and one count of criminal intimidation contrary to section 375 (1)(a) of the said Decree, and the sentence imposed by the High Court.

Application for Special Leave to Appeal

[2] In the undated petition seeking special leave to appeal lodged in the Registry of this Court with a covering letter from the Deputy Superintendant of Corrections dated 23^rd December 2015, two grounds have been set out for seeking special leave to appeal, namely-

(1) The Judges of the Court of Appeal erred in law when their Lordships failed to independently assess the evidence of provocation; and

(2) The Court of Appeal erred in law in not setting aside the Petitioners conviction even though it held that the learned High Court Judge had not made an adequate direction on the defence of self-defence.

[3] 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.”

[4] While 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 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."

[5] The Petitioner has failed to lodge his petition for special leave to appeal within the prescribed period of 42 days from the date of the judgment sought to be appealed against.The Petitioner has not in his said petition formally applied for an enlargement of time to pursue his application for special leave to appeal, nor does his petition, which in any event is not supported by affidavit, adduce any reasons for the delay in lodging his application for special leave to appeal.

Enlargement of time

[6] 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 prescribed time limit.In this case, the Petitioner has in his petition only sought special leave to appeal, but has not formally applied for enlargement of time. However, this Court cannot consider his application for special leave to appeal filed out of time without first considering whether he should be granted an enlargement of time for pursuing his application for special leave to appeal.

[7] Enlargement of time is granted at the discretion of Court in exceptional circumstances in an endeavor to avoid or redress some grave injustice that might otherwise occur from the strict application of the rule 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.

[8]This Court has in decisions such as The 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)considered the factors that will be relevant when considering any application for enlargement of time. The relevant considerations may be summarised as follows:-

(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?

[9] 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 the rules of court

Reasons for the Delay

[10] At the hearing before this Court, the Petitioner appeared in person, and was not articulate enough to explain the reasons for the delay in lodging his application for special leave to appeal or the reason, if any, for failing to apply for enlargement of time.

[11] In these circumstances, this Court will assume that as a serving prisoner the Petitioner had no access to legal advice and this resulted in some delay in lodging his petition for special leave to appeal and applying for enlargement of time. This Court will therefore 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.

Length of Delay

[12] The impugned judgement of the Court of Appeal against which the Petitioner seeks special leave to appeal was pronounced on 13^th July 2015. 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 24^th August 2015, but the Petitioner’s undated petition seeking special leave to appeal was received in the Registry of this Court only on 23^rd December 2015, almost 4 months out of time.

[13] This 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.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 19>

&

“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 o, the Court will readily extend the time, provided that there is a question which justifies serious consideration.”(Emphasis added)

[14]In the opinion of this Court, a delay of approximately 4 months is substantial and would not justify the enlargement of time in the absence of a question which justifies serious consideration.

Grounds of Merit

[15] In the circumstances, it is necessary to consider whether there is any ground of merit justifying this Court’s consideration.

[16] Before embarking on an assessment of the merits of the Petitioner’s application, it is useful to mention that when considering enlargement of time in the context of any application for special leave to appeal against a judgment of the Court of Appeal, this Court has to be mindful of the criteria that must be satisfied by the petitioner to succeed in his application for special leave to appeal. Section 98(3)(b) of the Constitution of the Republic of Fiji has expressly subjected the jurisdiction conferred on this Court to hear and determine appeals from all final judgments of the Court of Appeal to “such requirements as prescribed by written law”.

[17] The jurisdiction of this Court to grant special leave to appeal and thereafter act in appeal is subject to the stringent criteria contained in Section 7(2) of the Supreme Court Act No. 14 of 1998, in the following terms:-

“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 may otherwise occur.”

[18] In our opinion, grounds of appeal advanced by a party seeking enlargement of time in the context of an application for special leave to appeal to the Supreme Court, should necessarily satisfy one or more of these threshold requirements (See, Kean v The State [2011] FJSC 11 CAVOO15/2010 (12^th August 2011).Indeed, as already noted, for obtaining enlargement of time, it must additionally be demonstrated that there is a question that justifies serious consideration.

[19] At this stage, it might be useful to set out in brief the material facts relating to the two counts of murder and criminal intimidation that the Petitioner had been charged with in the High Court.

[20] The Petitioner had lived with Samina Bibi as husband and wife from 1981 for about 25 years. During this period, the Petitioner and Samina Bibi lived in a house on free hold land owned by Samina Bibi which was adjacent to the house where her sister Amina Bibi lived.Somewhere in 2006, Samina Bibi left the Petitioner and went to live with one Henry Raj. She lived with him for 2 years, and thereafter left Henry Raj and entered into a de facto relationship with the deceased Abdul Rauf.

[21] There was some history of illwill between the Petitioner and Samina Bibi. It would appear that in August 2010, Samina Bibi had instructed a legal practitioner to obtain vacant possession of her land, and as a result a notice to quit had been served on the Petitioner.

[22]In the early afternoon of 10^th September 2010, which happened to be the day of Eid celebration, Samina Bibi and the Abdul Rauf went to the house of Samina's sister, Amina Bibi, on a festival visit. According to Gulnaz Bibi, a daughter of Samina Bibi, when she was at home at about 2pm, she had seen her mother and Abdul Rauf coming.Seeing them coming, the Petitioner, who was her father, asked for the cane knife and the file. Thereafter, the Petitioner had gone under the guava tree and started filing the knife, while her mother and Rauf had gone past their house to Amina’s house.

[23]When Abdul Aziz and Samina Bibi came out of Amina’s house a little later, after having some Eid refreshments, there was an incident which resulted in the death of Abdul Aziz which was caused by him being hit on the head by the Petitioner with the knife he had been sharpening under the guava tree.

[24] Thepost-mortem report concerning the deceased Abdul Rauf issued by Dr. Jean Perera, Forensic Pathologist who had conducted the post-mortem examination showed that the deceased had a single deep sharp cut injury to the left side of the face and head, cutting the major artery and part of the neck vertebra. The major artery supplies blood to the left half of the brain, and the injury would cause extremely rapid death due to the cutting off of supply of blood to the brain, and no treatment could have saved his life.

[25] It is important to note that the Petitioner too had sustained a head injury in the course of this incident. It was his position that Abdul Rauf had thrown a stone at him which hit his head and caused the injury. However, the explanation given by Gulanz Bibi was that the Petitioner came by his injury when after striking Abdul Rauf, he started pursuing Samina Bibi with the knife in his hand, and at the same time Amina’s son in law, Adam Dean, in an effort to stop the Petitioner, threw a piece of firewood at him which hit the knife causing the knife to hit the Petitioner’s forehead.

[26] Dr. A. Vakamocea, who had attended to the Petitioner’s injury stated in his report that when the Petitioner was first seen by him, upon initial questioning the Petitioner had stated that he was hit with a stick by someone other than the person that he allegedly struck with a knife. When he saw him the next day, he had stated that he was hit by the deceased with a heavy rock after an argument. According to the medical report issued by Dr. Vakamocea, there was a minor laceration on his scalp, and that the lack of tissue swelling and bruising made the history of assault with a heavy rock questionable. He was of the view that the injury was consistent with being hit by a sharp object.

[27] At the trial before the High Court in Suva, which commenced on 26^th September 2011, the Petitioner appeared in person. Fourteen witnesses testified for the prosecution, including Samina Bibi, Gulnaz Bibi, Amina Bibi and Adam Dean. At the end of the prosecution case, the Petitioner gave evidence. His testimony was brief, and read as follows:-

“I want to tell this court that Abdul Rauf threw the stone at me which hit my head and I got injured and in my hand I had the knife where I swing the knife and it hit Abdul Rauf. Before this incident I reported the matter about the location of the land to Mr Col. Aziz in PM's office and twice at Navua Police Station. That is all.”

[28] Under cross-examination, the Petitioner maintained that the deceased had thrown a stone at him which hit him, and then he swung the cane knife which struck the deceased Abdul Rauf. He maintained that the injury to his head was the result of the stone hitting him.

[29] At the end of the trial, the assessors unanimously returned a verdict of guilty for murder with which the trial judge agreed. By his sentencing ruling dated 7^th October 2011, the learned High Court Judges entenced the Petitioner to life imprisonment. However, in terms of section 18(2) of the Sentencing and Penalties Decree, 2009, taking into consideration the nature of the offence and the past history of the offender, the learned High Court Judge declined to fix a non-parole period.

[30] The conviction and sentence were affirmed by the Court of Appeal by the impugned judgment dated 13^th July 2015.

[31] It is noteworthy that the grounds on which the petitioner has sought special leave to appeal set out in paragraph [2] of this judgment are more or less the same as those advanced by him in his amended notice of appeal filed in the Court of Appeal, which were as follows:-

A. The Learned Trial Judge erred in law and in fact when he failed to adequately consider the defence of self-defence raised by the Appellant (who is the Petitioner in these proceedings).

B. The Learned Trial Judge erred in law and in fact by not adequately directing the assessors on the issue of provocation.

[32] The Court of Appeal considered it fit to grant leave to appeal only on ground A pertaining to self-defence and refused leave to appeal on ground B relating to the issue of provocation.

(1) Provocation

[33] Ground (1) set out in the Petitioner’s undated petition filed in the Supreme Court is that the Judges of the Court of Appeal erred in law when their Lordships failed to independently assess the evidence of provocation. This was the ground on which the Court of Appeal had refused the Petitioner leave to appeal.

[34]The trial judge had in paragraph 23 of his summing up, dealt with the question of provocation, wherein at the outset he explained to his assessors the legal aspects of self-defence as a partial defence that would, when established, reduce what would otherwise be murder to manslaughter. He then went on to direct the assessors as follows:-

“If you believe the story of the Accused and if you are sure that the Accused was or might have been provoked, in the sense which I have explained, you must then go on to weigh up how serious the provocation was for this Accused. Is there anything about this Accused which may have made what was [said and/or done] affect him more than it might have affected other people?

Finally, having regard to the actual provocation and to your view of how serious that provocation was for this Accused, you must ask yourselves whether a person having the powers of self-control to be expected of an ordinary, sober person, of the Accused's age and sex, would have been provoked to lose his self-control and do as this Accused did. If you are sure that a person would not have done so, the prosecution has disproved provocation, and the Accused is guilty of murder. If, however, you conclude that such a person would or might have reacted and done as the Accused, your opinion would be ‘Not guilty of murder, but guilty of manslaughter by reason of provocation’.”(Emphasis added)

[35] While the Court of Appeal was of the view that the directions of the trial judge were impeccable, it also had no difficulty in rejecting a submission made by learned Counsel for the Petitioner that the learned trial judge had failed to direct the assessors to consider what sentimental value Eid plays on Muslims, and whether the Petitioner lost control of his temper when he saw his wife celebrating Eid with another man, visiting the close families. The Court of Appeal referred to the judgment of this Court in Codrokadroka v State [2013] FJSC 15; CAV07.2013 (20 November 2013), holding that ethnicity and cultural background will be relevant only if the words spoken or deeds done are aimed at the culture or ethnicity of the accused.

[36]In any event, as Calanchini P, with whom Basnayake JA and Madigan JA concurred, very rightly observed at paragraph 50 of the judgment of the Court of Appeal, there was in this case no requirement for the trial judge to direct the assessors on provocation based on the fact that the people present were celebrating Eid, since “there was simply no evidence of loss of self-control caused by either the arrival of the deceased with Samina Bibi or the conversation between the deceased and the Appellant.”

[37] In our view, there is no merit in ground (1) advanced by the Petitioner in his undated petition to this Court.

(2) Self-Defence

[38] Ground (2) raised in the petition seeking special leave to appeal to the Supreme Court is that the Court of Appeal erred in law in not setting aside the Petitioners conviction even though it held that the learned High Court Judge had not made an adequate direction on the defence of self-defence. It is noteworthy that the Court of Appeal had granted leave to appeal on this ground which was urged by the Petitioner in the Court of Appeal as Ground (A), and set out in paragraph 30 of this judgment, but after consideration dismissed the appeal.

[39] The point raised in argument by learned Counsel for the Petitioner in the Court of Appeal was that the trial judge’s directions on self-defence were inadequate, which the court took to mean both that the directions were inadequate on the law and also inadequate on the facts since the learned Judge did not consider all the evidence that goes to self-defence.

[40] Learned Counsel for the Respondent had adverted to both these aspects in his submissions. In regard to the question whether the directions were adequate on the law, he submitted that it is arguable that in paragraphs 18 and 19 of his summing up the learned trial judge did not direct attention to the significance of the Petitioner's perception of the threat that he faced at the relevant time, but the error, if any, did not give rise to a miscarriage of justice and therefore the appeal should be dismissed under section 23(1) (a) of the Court of Appeal Act, Cap 12. In regard to the question whether the directions were adequate on the evidence, learned Counsel for the Respondent submitted that the learned trial judge clearly set out the Petitioner's evidence about the stone throwing in his summing up. He also submitted that the learned Judge in a fair and balanced manner also referred to the evidence of Samini Bibi denying that the deceased threw a stone at the Petitioner and the testimony of Gulnaz Bibi, Amina Bibi and Adam Dean as to how the Petitioner had suffered an injury to his head.

[41] The Court of Appeal, after examining section 42 of the Crimes Decree, 2009, expressed the view that there is no inconsistency between the said section and the common law principles relating to self-defence. In paragraph 33 of its judgment, the Calanchini P. observed that-

“In my judgment, the summing up did not adequately explain the subjective element of the test under section 42 of the Decree. The actions of the Appellant will be considered necessary for the purposes of self-defence if the conduct was a reasonable response in the circumstances as they were perceived by the Appellant. In my judgment the summing up does not direct the minds of the assessors or the Judge himself to the importance of the Appellant's perception of the threat that he faced on the afternoon of 10 September 2011. There is in the summing up an emphasis on the objective nature of the test. For example, the assessors were told that in considering whether the accused acted reasonably you must ask yourself what a reasonable man in the accused's shoes would have done to defend himself. It was not made sufficiently clear that the issue of whether the conduct was necessary must be considered in the context of reasonableness which in term had to be determined by reference to the Appellant's perception of the threat that he faced. The Appellant's defence had at all times been that as an immediate response to the stone hitting him he had swung the cane knife in the direction of the deceased.” (Emphasis added)

[42] The gist of the Petitioner’s ground (2) urged by him for seeking special leave to appeal is that the Court of Appeal erred in law in not setting aside the Petitioner’s conviction despite its finding that the learned trial judge had not made an adequate direction with respect to the subjective element of the defence of self-defence.

[43] It is obvious that the Court of Appeal did not err in this respect, as the evidence led in the case had been overwhelmingly in favour of a finding beyond reasonable doubt that the deceased Abdul Rauf had not thrown any stone at the Petitioner, and that the Petitioner had not been hit by a stone or a rock. As Calanchini P., who expressed the unanimous opinion of the Court of Appeal was at pains to explain at paragraph [61] of his judgment- ,

“The effect of the findings of fact by the learned trial Judge which resulted in his concurrence with the opinions of the assessors is that the defence of self-defence did not fall to be considered at all. There was no need to consider the tests to be applied in order to determine whether the Appellant should be exonerated on the basis that he had acted in self-defence. The faulty direction was of no consequence since it was not necessary to consider either the subjective or objective components of the test.”(Emphasis added)

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 a ground of appeal that will probably succeed? This question has to be answered in the negative, as it is abundantly clear that both grounds urged by the Petitioner in his undated petition filed in this Court seeking special leave to appeal fail to satisfy the threshold criteria set out in section 7(2) of the Supreme Court Act, and afortiori it would follow that there is no ground that would probably succeed.

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 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.

Conclusions

[46] As has been noted in paragraphs [7] to [9] of this judgment, the grant of extension of time for a belated application for special leave to appeal is a matter for the discretion of Court. In exercising this discretion, the Court would look at the totality of the circumstances that led to the delay, the length of the delay, whether the grant of time would be futile due to the unmeritorious nature of the grounds of appeal advanced by the applicants and the possible prejudice to the Respondent, and balance these factors against the need to preserve the sanctity of the rules and the need to have finality in litigation.

[47] Our detailed assessment of the various factors that should be considered in deciding whether it is appropriate to grant an enlargement of time in this case, lead us to the conclusion that the Petitioner who has neither prayed for enlargement of time nor advanced any excuse for his delay, should nonetheless be treated with sympathy by reason of him being a serving prisoner whose access to justice is limited. However, on further examination, it is manifest that the Petitioner’s grounds for seeking special leave to appeal were altogether lacking in merit, and hence no useful purpose would be served by granting the enlargement of time sought by him.

[48] For all these reasons, we conclude that this Court would not be justified in granting the enlargement of time that would be necessary to consider the undated petition of the Petitioner for special leave to appeal. In those circumstances, the Petitioner’s undated petition for special leave to appeal has to be dismissed.

Orders of Court

We accordingly make order as follows:-

(1) Enlargement of time is refused.

(2) The undated petition of the Petitioner seeking special leave to appeal is dismissed.

...................................................

Hon. Justice Saleem Marsoof

Justice of the Supreme Court

.................................................

Hon. Sathyaa Hettige

Justice of the Supreme Court

..................................................... Hon. Justice Suresh Chandra

Justice of the Supreme Court

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