Tuwai v State [2016] FJSC 35; CAV0013.2015 (26 August 2016)

IN THE SUPREME COURT OF FIJI AT SUVA

CRIMINAL APPELLATE JURISDICTION

CASE NUMBER: CRIMINAL APPEAL NUMBER: CAV 0013 of 2015

(Court of Appeal No. AAU 0003 of 2012)

(Lautoka High Court Criminal Case Number: HAC 001 of 2009)

BETWEEN: VARASIKO TUWAI

PETITIONER

AND: THE STATE

RESPONDENT

Coram: Hon. Justice Suresh Chandra, Justice of the Supreme Court.

Hon. Madam Justice Chandra Ekanayake, Justice of the Supreme Court.

Hon. Madam Justice Anjala Wati, Justice of the Supreme Court.

Appearances: Petitioner in Person.

Mr. M. Korovou for the Respondent.

Date of Hearing: Wednesday 10 August 2016.

Date of Judgment: Friday 26 August 2016.

------JUDGMENT OF THE COURT

Chandra, J

1. I have had the benefit of reading the draft judgment of her Ladyship Justice Wati and I agree with her reasons and conclusion that the petitioner has not advanced sufficient reasons in appealing the decision of a single judge after a year from the time limited for lodging of the appeal. The delay in bringing the appeal is inordinate. The grounds proffered also do not show any merits and the application for leave to appeal is therefore untenable.
   
2. Apart from that, I do not find that there are sufficient reasons why new grounds should be allowed to be presented in the Supreme Court when that was not raised in the Court of Appeal in the first instance. I do not find that any miscarriage of justice will occur even if the grounds are refused as they do not justify any merits for them to be allowed.
   
3. The application for enlargement of time to appeal and to amend the grounds of appeal must be refused.
   

Ekanayake, J

4. I have read the draft judgment of Wati, J and I agree that the application for special leave to appeal out of time and the application to argue new grounds of appeal in the Supreme Court must be disallowed.
   
5. New grounds of appeal raised here which were not raised in the Court of Appeal may be allowed only in the most exceptional circumstances. In such a case at hand, Court is not satisfied that there are such exceptional circumstances compelling this Court to allow the new grounds.
   
6. Further, the petitioner has not been able to establish the threshold requirement spelt out in s. 7(2) of the Supreme Court Act 1998 for special leave to be granted. The application must be dismissed.
   

Wati, J

Background

7. The petitioner and one Tracy Bernadette Shaw (“TBS”) were charged and convicted for murder contrary to section 199 and 200 of the Penal Code, Cap. 17. The assessors had unanimously found the petitioner guilty of murder.
   
8. The petitioner and TBS were both sentenced to life imprisonment. A minimum term was set for the petitioner to be 15 years before he was eligible for parole. The minimum term for TBS was set at 18 years.
   
9. I will in brief state the circumstances leading to the death of Mohammed Nasir for which the petitioner was charged with TBS. The evidence unraveled that the petitioner was the de-facto partner of TBS. They were living together under the same roof. On 17 December 2008, the petitioner and TBS, planned to kill one Mohammed Nasir, a taxi driver from Sigatoka.
   
10. Apparently, TBS was bitter with Nasir as she had fallen out with him after a short romantic relationship. With that grievance, TBS also felt that Nasir had been the trouble maker between her parents by spreading gossip about the family.
    
11. TBS had been planning to kill Mohammed Nasir from 3 months before his death. She managed to execute her plan with the help of her de-facto partner on 17 December 2008.
    
12. On the day in question both TBS and the petitioner boarded the taxi driven by Nasir on the pretext of giving him a job and killed him at Cuvu top by putting tape around his hands, legs, and mouth. The deceased was punched, kicked and stabbed with a pen knife. He was then put at the back of the car seat. The petitioner and TBS then drove him to Ciri Road near Semo village. The victim revived pleading for his life but at Ciri road he was pushed out of the car onto the gravel road. The petitioner then said that he hoped he would die.
    
13. Later that night both of them went back to the scene to check whether he was dead. If he was not, he would have been killed. That was the plan. Both the petitioners stated to the police that their purpose was to kill Nasir that night.
    
14. After killing the deceased, the two took his Nokia mobile phone, a sunglass, car stereo and some cash from him. The next day, the deceased was reported missing by his father.
    
15. The deceased was found dead in a river bed with multiple head injuries.
    
16. The suspicion fell on TBS when police found that Nasir’s mobile phone was used to contact some people. The phone calls were tracked and the information led to the arrest of four people, out of whom were the petitioner and TBS. They were interviewed and charged.
    
17. Following the conviction and sentence, the petitioner and TBS filed an appeal to the Court of Appeal against their conviction. Since all the grounds of appeal in the Court of Appeal either involved questions of fact or mixed law and fact, leave was required for the appeal proper to be heard by the Full Court: s. 21 (1) (b) of the Court of Appeal Act.
    
18. The application for leave was heard by a single judge of the Court of Appeal. His Lordship Goundar, JA. dismissed the leave application under s. 35(2) of the Court of Appeal Act.
    

Application

19. When an application for leave to appeal is dismissed by a single judge in terms of s. 35(2) of the Court of Appeal Act, no further appeal can be made to the Full Court of Appeal. An appeal against the decision to dismiss the application for leave under s. 35(2) has to be brought to the Supreme Court by way of a petition for special leave.
    
20. The petitioner did not appeal against the said ruling in the same year. The following year, by a letter dated 14 May 2015, he sought leave to appeal out of time and to amend his grounds of appeal to be argued in the Court of Appeal.
    
21. The application therefore is for an extension of time to file the appeal and for leave to amend the grounds of appeal. I will deal with the application for extension of time to appeal first.
    
    1. Enlargement of Time to Appeal
22. There are no specific provisions in the Supreme Court Rules 1998 (“SCR”) on the powers of the Supreme Court to hear and determine an application for extension of time to bring an appeal against the decision of the Court of Appeal. In absence of any such provision, the Supreme Court can rely on the Court of Appeal Rules on practice and procedure: Rule 46 of the SCR.
    
23. S. 26 of the Court of Appeal Act and Rules 40 and 66 of the Court of Appeal Rules all provide that the Court has powers to hear and determine an application for extension of time to appeal. Pursuant to these provisions, the Supreme Court then also has powers of the same nature.
    
24. In deciding the question of leave I will seek guidance from two very helpful authorities which, though not exhaustively, but largely outlines factors which must be considered for a proper exercise of the discretion.
    
25. The first is the judgment of the Supreme Court of Fiji: Kamlesh Kumar v. State; Mesake Sinu v. State [2012] FJSC 17; CAV0001. 2009 (21 August 2012). In that case the factors to consider an application for leave to appeal out of time were identified as:
    
    • (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.
      
26. The second is the decision from the Supreme Court of Canada: R v. Roberge [2005] 2 SCR 469, 2005 SCC 48 (CanLii). In this case the applicant had filed an application for leave to appeal out of time after 4 months of the prescribed period in Supreme Court Act, R.S.C 1985, c. S-26. The Court stated as follows:
    

“The power to extend time under special circumstances in s. 59 (1) of the Act is a discretionary one. Although the Court has traditionally adopted a generous approach in granting extensions of time, a number of factors guide it in the exercise of its discretion, including:

1. Whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposing party within the prescribed time;
2. Whether counsel moved diligently;
3. Whether a proper explanation has been offered;
4. The extent of the delay;
5. Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and
6. The merits of the application for leave to appeal.

The ultimate question is always whether, in all the circumstances and considering the factors referred to above, the justice of the case requires that an extension of time be granted”

27. The above two cases more or less outline the same factors which needs to be considered in determining the application for leave to appeal out of time. Using the above cases, I will determine the question of leave under the following headings:
    
    1. Bona fide intention to seek leave to appeal/whether counsel or party moved diligently/explanation for the delay
       
28. At the hearing, the petitioner did not advance any reasons why he did not file the appeal within time. What I gather from his written material is his assertion that there was some misunderstanding between him and his Legal Aid Counsel who appeared in the Court of Appeal and that he faced difficulty in getting his papers from the Court of Appeal for him to prepare his appeal on time.
29. The petitioner neither states the nature of misunderstanding which precluded him from filing the appeal, nor the difficulty which he faced in getting his relevant papers to file the appeal.
    
30. The Court of Appeal Registry is not only physically accessible but also accessible by emails, telephones and letters. What the petitioner needed to do was to write in to the Chief Registrar and ask for the papers he needed to rely on to file the appeal. He would have been provided with the necessary papers without any expenses. That is the procedure that the Courts have adopted in cases of inmates. There is nothing on record to show that the petitioner requested for any materials and that was not provided to him.
    
31. When the matter was before the Court of Appeal, the petitioner would have had the benefit of most of the documents. What he needed to appeal was a judgment of the single judge. That could have been easily accessible from the registry.
    
32. If and when the petitioner was facing the difficulties as he described, he could have written to the Court before the time for filing the appeal had expired and expressed his intention to appeal and sought extension of time. He could have in the letter outlined his difficulties which he says he faced.
    
33. In fact most inmates do not file proper applications. They write letters and their letters are considered as applications. They are very easily able to access the registry.
    
34. In this case, the petitioner did not show any bonafide intention to appeal. If he had any, he would have written and requested the Court for the records for him to prepare the appeal. Coupled with that, he did not move the Court diligently to file his appeal. It took him almost a year after the expiration of the time to appeal to file his papers.
    
35. I find that the allegations of misunderstanding with his counsel and delay in getting the necessary documents to file the appeal to be bare and unacceptable.
    
    2. Length of Delay
36. The petitioner had 42 days from 7 April 2014 to file his appeal: s. 6(a) of the SCA. His time to file the appeal expired on or about 19 May 2014. The petitioner filed his application for leave to appeal and amendment on 14 May 2015. There is delay of almost a year to file the appeal and this I find is substantial delay.
    
    100. Prejudice
37. The State has not pointed out any specific prejudice that will occur but there is naturally prejudice to the State as there needs to be finality to criminal matters. Those who prefer to appeal the decisions of the Court must exercise their rights within time. A lack of exercise of that right indicates to all parties that the litigation has come to an end and that time and resources should be directed towards more needy files.
    
38. Then contrary to the expectation, the State has to again re-open the files which it considered closed and allocate time and resources towards management of that file. I find that the State is then prejudiced in allocation of resources towards a file it considered closed. There then is a direct impact on the administration and management of the cases.
    
    4. Grounds of Appeal: Are there any merits?
       
39. The next question that I need to consider is whether there are any merits in the grounds of appeal that may justify the granting of the application for enlargement of time notwithstanding my finding that there is substantial delay and that the petitioner does not have any cogent reasons why he delayed in exercising his rights to appeal.
    
40. The normal practice in an application for enlargement of time is to show to the Court the proposed grounds of appeal. The reason is that in considering the application, the Court has to consider whether the proposed grounds have any merits and whether substantial and grave injustice would be caused to the petitioner if time to file the appeal out of time was refused.
    
41. The petitioner has not proposed any grounds of appeal. He does not specify the errors of the single judge of the Court of Appeal. The petitioner just asserts in his written submissions that the single judge was wrong in holding that the grounds he had proffered in the Court of Appeal were frivolous.
    
42. Since the petitioner is unrepresented, for fairness sake, I will accept that he is challenging the decision of the single judge on all the grounds. I only permit this as the State has also presumed the same and made submissions according to the grounds raised in the Court of Appeal.
    
43. This may then require an examination of the grounds raised in the Court of Appeal and the assessment by the single judge.
    
44. Three grounds of appeal were raised in the Court of Appeal. They were that the trial judge erred:
    
    1. in law when he did not direct the assessors about the circumstantial evidence;
       
    2. erred in law and in fact when he did not direct the assessors that in respect of a disputed confessional statement they were entitled to consider all the relevant evidence together in deciding upon their verdict; and
       
    3. erred in law and in fact when he did not put the defence case to the assessors.
       
45. In his written submission to the Court, the petitioner stated that the single judge of the Court of Appeal did not have the benefit of the hearing notes on the voir dire and the main trial and that deprived the Court of appreciating the full facts of the case. This led to the Court of Appeal to hold that the grounds were not arguable.
    
46. If the single judge required any material records to make a finding on the grounds, he would have called for the records or for the original file which is easily accessible. This allegation that the trial judge did not have the records is not sufficient for the petitioner to file an appeal against the decision of the Court. What he needs to show is that the Court erred in its findings on the grounds presented to it.
    
47. I will now deal with the grounds in turn.
    

D - 1. Circumstantial Evidence

48. The petitioner had argued that the trial judge did not direct the assessors on the circumstantial evidence. I find that the single judge was correct in finding that this was a case which depended on direct evidence being the admission by the petitioner in his caution interview. The caution interview was the main evidence which was used to prove all the elements of the offence. The circumstantial evidence was only used to aid the confession statement. There was therefore no need for any special directions on circumstantial evidence to be given to the assessors.
    
49. In a case of this nature, the general directions to the assessors that the prosecution had the burden of establishing all the elements of the offence beyond reasonable doubt, was sufficient. These directions can be found in paragraphs 7 and 10 of the summing up where his Lordship the trial judge said:
    

“ 7. It is most important that I remind you of what I said to you when you were being sworn in. The burden of proving the case against these two accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him or her not guilty-that doubt must be a reasonable one however, not just some fanciful doubt...

10. The prosecution must prove beyond reasonable doubt three essential elements of the offence of murder...”

50. It is clear from the case of Senijieli Boila v. The State [2008] FJSC 35; CAV 0005. 2006S (25 February 2008), that on the question of circumstantial evidence, the principle laid down in the case of McGreevy v. Director of Public Prosecutions [1973] 1 All ER 503; [1971] 1 WLR 276, be followed. In Senijieli Boila (supra) the Supreme Court said at paragraphs 15 and 16 as follows:
    

“The Court of Appeal observed that no special directions are required of a trial judge in directing on the use of circumstantial evidence. What is required is a clear direction that the tribunal of fact must be satisfied of the guilt of the accused beyond reasonable doubt... The adequacy of a particular direction will necessary depend on the circumstances of the case.

The petitioner did not suggest error in these principles as applied by the Court of Appeal...”

51. It was held in McGreevy (supra) that:
    

“In a criminal trial it is the duty of the judge to make clear to the jury in terms which are adequate to cover the particular features of the case that they must not convict unless they are satisfied beyond reasonable doubt of the guilt of the accused. There is no rule, where the prosecution case is based on circumstantial evidence, the judge must, as a matter of law, give a further direction that the jury must not convict unless they are satisfied that the facts proved are not only consistent with the guilt of the accused, but also such as to be inconsistent with any other reasonable conclusion”.

52. What McGreevy simply says is that an express Hodge direction is not a rule of law which if not faithfully followed will stamp a summing up defective. A Hodge direction comes from the case of R v Hodge (1838) 2 Lew CC 227. This case states that before finding a prisoner guilty the jury must be satisfied not only that the circumstances are consistent with him having committed the act, but also that the facts are such as to be consistent with any other rational conclusion than that he was the guilty person.
    
53. McGreevy says that what the jury needs to be directed is that they must not convict unless satisfied beyond reasonable doubt of the guilt of the accused.
    
54. In R v. Hart [1986] 2 NZLR 408, it was held that:
    

“... It is the duty of the trial Judge to make clear to the jury in terms adequate to cover the particular features of the case that they must not convict unless satisfied beyond reasonable doubt of the guilt of the accused. The judge should give the jury practical and fair assistance as to how parts of the evidence may help or tell against or even positively exclude the proof of a case beyond reasonable doubt, rather than directions in abstract terms. A Hodge direction, while proper and in some cases desirable, is not required as a matter of law”.

Underlining is mine for Emphasis

55. In R v. Hart (supra), “the accused was charged with murdering a young woman whose partly naked body had been found face down on a beach. She had been severely assaulted, but death had been caused due to drowning. When first questioned the accused denied that he was with the deceased at the time and place of her death. However, he later admitted that he was with her in a grassy bank by the beach on the night she died, that he had assaulted her, and then ran away. The Crown’s case depended largely on inferences from circumstantial evidence, and in his summing up to the jury the trial judge gave general directions on circumstantial evidence. However, he did not give a Hodge direction”.
    

The directions were held to be adequate.

56. Unlike in R v. Hart, to prove any elements of the offence, the State did not rely on circumstantial evidence but the confession statement. In that regard, the judge’s general direction to the assessors that the prosecution must prove each element of the offence beyond reasonable doubt is adequate direction. There was no need for any special direction.
    
57. I find that this ground does not have any merit.
    

D- 2. Directions on Confession Statement

58. The second ground relates to the allegation that the trial judge did not direct the assessors in relation to the disputed confession statement and to consider all the relevant evidence together. Admirably, Goundar, JA. thoroughly went through the directions given on the confession and found that the same was adequate.
    
59. Before I deal with the issue of directions on the confession, I must say that the trial judge had very clearly directed the assessors to take into account all of the evidence presented in Court. It is prudent that the summing of His Lordship be outlined for clarity:
    

“3. Counsel have addressed you on the facts but once again you need not adopt their views of the facts unless you agree with them and I will say more about that a little later. You will take into account all of the evidence both oral and documentary. You can accept some of what a witness says and reject the rest. You can accept all of what he or she says and you can reject all. As judges of the facts you are masters of what to accept from the evidence.

4. You must judge this case solely on the evidence that you have heard in this Court room...There will be no more evidence, you are not to speculate on what evidence there might have been or should have been. You judge the case solely on what you have heard and seen here.
   
5. The court room is no place for sympathy or prejudice. You must judge this case solely on the evidence produced in this Court and nothing else. You cannot feel sorry for anybody and let that cloud your view of the evidence”.
   
60. The above paragraphs very clearly indicate that the assessors were directed to consider all the relevant evidence in order to come to their opinion. There is no confusion created by the directions that the confession of the petitioner was to be looked at in isolation.
    
61. The petitioner’s assertion that the assessors were not directed to consider all the relevant evidence is bald and unfounded.
    
62. I find that the directions to the assessors to consider all the relevant evidence apt and adequate and the trial judge could not have said or done anything more than what was said to fully ventilate the duty of the assessors in arriving at their opinion in whether the petitioner was guilty or not.
    
63. In relation to the confession, the Court very clearly directed the assessors that they must decide whether the petitioner made the statement and if he so did, whether the admissions were true. The assessors were also directed that in deciding whether the admissions were true, they were to decide whether they were or may have been made or given as a result of something said or done which was likely to render them unreliable. If the confessions were unreliable, the assessors were told to disregard the same.
    
64. The assessors were also specifically directed that what TBS said in her confession statement against the petitioner was not evidence against him but what he did say in his caution interview was evidence if the assessors accepted that he said it and if they accepted it to be true.
    
65. The directions of the trial judge in his own words were:
    

“[29]. In deciding whether you can safely rely upon the admissions, you must decide two issues:

(i). did each of the accused in fact make the admissions? If you are not sure that she or he did you must ignore them. If however you are sure that he or she did then;

(ii). are you sure that the admissions are true?

In addressing that issue (whether the admissions are true) then you should decide whether they were or may have been made or given as a result of something said or done which was likely to render them unreliable. If you conclude that that answers were or may have been obtained by the police as a result of something said or done which was likely to render them unreliable then you must disregard the admissions.

[31]. Varasiko has said nothing....

[33] ..., but what he himself says in his interview is evidence if you accept that he said it and if you accept that it is true”.

66. In this case the issue of voluntariness was a live issue at the trial, as the prosecution witnesses were being cross-examined at length on how the confessions were obtained, that is, by assault and ill-treatment during arrest and whilst in police custody during the interview. This is notwithstanding that the appellant did not give any evidence on how the confession was obtained. He need not give any evidence as it is the duty of the prosecution to proof beyond reasonable doubt that the confessions were obtained voluntarily.
    
67. In the case of Noa Maya v. the State [2015] FJSC 30; CAV 009. 2015 (23 October 2015] his Lordship Sir Justice Brian Keith gave his provisional view on the directions that should be given to assessors, if after a voir dire hearing, the judge has ruled the confession statements admissible and in the course of trial the issue of voluntariness is a live issue and the judge changes his view on the issue of voluntariness. The preferred direction that was to be given was said to be to “tell the assessors that even if they are sure that the defendant said what the police attributed to him, they should nevertheless disregard the confession if they think that it may have been made involuntarily. The judge will have to direct himself on these lines if he changes his mind about the voluntariness of the confession in the course of the trial”.
    
68. His Lordship Sir Justice Brian Keith said that if after the voir dire hearing, the judge rules the voir dire as admissible then he would have already found beyond reasonable doubt that it had been made voluntarily. If he remains of that view by the end of the case, the terms of the direction he gave to the assessors if they thought that the confession may have been made involuntarily is irrelevant. The problem will only arise if, in the course of the trial, the judge himself changes his original view about the voluntariness of the confession.
    
69. In the same case of Noa Maya (supra), Lord President Gates said:
    

“For my part, I reach the view that the assessors should be directed by the judge in his summing up that if they are not satisfied that the confession was given voluntarily, in the sense that it was obtained without oppression, ill-treatment or inducements, or conclude that it may not have been given voluntarily, they should disregard it altogether.

In Fiji the judge may admit the confession into evidence after the voir dire, and yet subsequently at the conclusion of the trial proper he or she may arrive at a different opinion. The defence may pursue in cross-examination in the trial proper the same issue of voluntariness in order to persuade the judge as well as the assessors of the rightfulness of such an allegation. The prosecution however bears the burden in trial proper, as in voir dire of proving that the confession was voluntary, and must do so to the standard beyond reasonable doubt,...”

70. In this case, the trial judge had not indicated that to him the issue of voluntariness of the confession was questionable. If that issue had affected his mind, I am sure he would have raised it at some point in this matter. The records do not indicate that any such issue was raised by the trial judge.
    
71. That then brings me to the directions on the confession. Having read it carefully I find that the trial judge did indicate to the assessors that if they thought that the admissions were made as a result of something said or done then they were to disregard the admissions. The assessors were also told to consider the truth of the same, if the admissions were accepted as having in fact being made.
    
72. I find that in terms of the opinions of their Lordships in the case of Noa (supra) the directions to the assessors on the admissibility of the confessions were adequate and that there is no miscarriage of justice as a result of the directions.
    

D - 3. Summing Up the Defence Case

73. The next ground that requires examination is the allegation that the trial judge did not put the defence case to the assessors. The only defence that had been raised in the cross-examination was that the confession statement was not made voluntarily. Apart from that the accused exercised his constitutional right to remain silent. I have already found that the directions to the assessors on the confession were adequate.
    
74. By exercising his constitutional right to silence and by objecting to the confession statement as not having being obtained voluntarily, the obligation on the trial judge was to direct the assessors in the terms he did on the confession and to further direct that the prosecution had the burden of proving all the elements of the offence beyond reasonable doubt. That was adequately dealt with by the trial judge in the summing up.
    
75. There were no other directions that the trial judge was required to give to the assessors. The single judge of the Court of Appeal also made a finding that the directions to the assessors were proper.
    
76. I find that the grounds of appeal do not have any merits and that any extension for time to file any appeal will be futile.
    
    2. Amendment of the Grounds of Appeal
       
77. The next issue that I need to address is the request by the appellant to amend the grounds of appeal which he did not raise in the Court of Appeal. The specific assertions, as I can summarize, are that the trial judge erred in law and in fact in:
    
    1. Not adequately directing or misdirecting the assessors that there were inconsistencies in the evidence of the prosecution witnesses and that the prosecution had not discharged its burden of proof of establishing the elements of the offence beyond reasonable doubt.
       
    2. Not directing the assessors and himself on the major flaw in the prosecution procedure that there was no identification parade carried out when there were other people who were arrested.
       
    3. Not directing the assessors and himself on the Turnbull guidelines when the prosecution had called two witnesses for identification.
       
    4. Not directing the assessors that his confession of the offence had been obtained as a result of the police brutality.
       
    5. Admitting the forensic report which was falsely prepared.
       
    6. In finding that there was an unlawful joint enterprise between TBC and him.
       
78. The petitioner basically wants this Court to consider more errors of fact and law on the part of the trial judge.
    
79. The Supreme Court is not a first-tier appeal court. Any error on the part of the trial court is a matter for the Court of Appeal to examine as a first –tier appellate court.
    
80. In the Court of Appeal, the petitioner was represented by Legal Aid Commission. After coming on record, the Legal Aid Commission was granted an opportunity to file the amended grounds of appeal. Subsequently the amended grounds were filed.
    
81. At the time of the amendment, if the petitioner felt that additional grounds were necessary, it would have been prudent for him to ask his counsel to include those grounds as well. The petitioner need not wait to see whether some of his grounds will succeed and in the event it does not, to raise new grounds.
    
82. It is improper that litigants be allowed to argue their cases on piece meal basis. Once a set of appeal grounds are unsuccessful, they raise another set to test whether that will hold some substance. If stringent rules are not applied where necessary, there will never be an end to litigation and there can be huge disruptions to case management in the appellate court.
    
83. The Courts time is not only for a particular litigant. Access to justice is meant for all the users of the Court and if these users are allowed to come to Court as and when they think of a point that may be arguable, I say without hesitation, that a lot of the Courts resources are going to be shamefully wasted.
84. I am not saying that this Court does not have jurisdiction to allow new grounds to be argued at all. The Court definitely will allow amendments where it is appropriate to do so. I will in a while identify what may be an appropriate case in which an amendment may be allowed.
    
85. In Senijieli Boila (supra), the Supreme Court said that the Supreme Court did have jurisdiction to entertain new issues on appeal only if the Supreme Court threshold test was met. At paragraph 11, the observation was as follows:
    

“Several of the matters raised by the petitioner were not addressed by the Court of Appeal, some of them not even having been ventilated in that Court. In so observing, we are not suggesting that this Court would lack jurisdiction to consider such matters if the criteria for a grant of special leave were otherwise established”.

86. In Eroni Vaqewa v. The State [2016] FJSC 12; CAV0016.2015 (22 April 2016), it was also acknowledged that although the Supreme Court has powers to entertain fresh grounds of appeal which were not raised in any Court below, it will not be entertained “unless its significance upon the special leave criteria was compelling”: [at para. 28].
    
87. In considering the issue of whether new issues should be allowed to be argued in the appellate court when it was not raised in the trial Court Justice L’ Heureux-Dube in R v. Brown, [1993] 2 SCR 918, 1993 CanLii 114 (SCC) in his dissent said:
    

“ Courts have long frowned on the practice of raising new arguments on appeal, Only in those exceptional cases where balancing the interests of justice to all parties leads to the conclusion that an injustice has been done should courts permit new grounds to be raised on appeal. Appeals on questions of law alone are more likely to be received, as ordinarily they do not require further findings of fact. Three prerequisites must be satisfied in order to permit the raising of a new issue,..., for the first time on appeal: first there must be sufficient evidentiary record to resolve the issue; second, it must not be an instance in which the accused for tactical reasons failed to raise the issue at trial, and third, the court must be satisfied that no miscarriage of justice will result...”. Underlining is Mine

88. His Lordship’s comments on the need to discourage new issues on appeal is very relevant:

“...In addition, the general prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation in criminal matters. Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at the trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases. Moreover, society’s expectation that criminal matters will be disposed of fairly and fully at the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if they were fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to the rule that such tactics will not be permitted”.

89. Due to the volume of cases in which fresh grounds are sought to be argued in the Supreme Court, it is now timely that the Court takes a strict approach in deciding whether new grounds should be permitted to be argued. It must not be a routine in this Court to allow every petitioner to argue new grounds. I feel that it is proper that those grounds should only be allowed if the petitioner can establish that:
    
    • (a) there are sufficient evidentiary record to resolve the issue;
      
    • (b) it is not an instance in which the petitioner for tactical reasons failed to raise the issue at trial and/or the appellate court below, and
      
    • (c) the significance of the new grounds on the special leave criteria is compelling making it a most exceptional case to grant leave.
      

(When I say special leave criteria I mean the threshold identified in s. 7(2) of the SCA)

90. There is no doubt that the full records were available in the Supreme Court to address the new issues raised by the petitioner. However what is unacceptable is the petitioner’s excuse that his counsel did not raise proper grounds of appeal before the Court.
    
91. The Legal Aid Commission was acting for this petitioner and it was his duty to fully instruct the counsel. At the trial or the Court of Appeal, if the petitioner felt that he was not properly represented and that the counsel did not argue the case as instructed, he should have raised the matter in the Court of Appeal.
    
92. It is habitual in this Court for people to accuse their lawyers of not having argued their case properly. This is a matter between the client and the counsel who is not in Court to address the allegations made. In absence of any evidence on the incompetence of a counsel, the Court cannot lay the blame on the counsel to allow new issues to be argued on appeal. The parties are bound by how their lawyers present their case. If this rule was not to be applied seriously, every litigant will then require the court to reopen new arguments.
    
93. The petitioner did not handle his matter with any tact if he is blaming his counsel for not arguing his appeal properly. I reiterate that the petitioner could have informed the Court that his counsel refuses to argue his case as instructed and that he personally wished to address the Court. The reason that he provides is unacceptable and improper to introduce new issues on appeal.
    
94. I must say that if the petitioner felt that these grounds were of any importance to affect his conviction, he would have raised it in the Court below. He would not wait until he is provided leave by Supreme Court to argue the matter. He deliberately did not do so as these grounds do not hold any substance and were not considered worthy to be raised.
    
95. The grounds are also not compelling on the special leave criteria. I should not examine the grounds in any details save to make some observations. On the issue of the inconsistency, the petitioner fails to identify the inconsistences in the prosecution evidence. The ground lacks clarify.
    
96. Further, the assessors were adequately directed that it was a matter for them on whose evidence they accepted. They heard all the witnesses and if there were any inconsistencies they would have heard it too. After hearing the evidence they unanimously found the petitioner guilty. This indicates that the assessors accepted the evidence of the prosecution witnesses and also believed that the petitioner had voluntarily made the confession and that the same was true and made without any compulsion on the petitioner from the police. The trial judge was obviously of the same view.
    
97. The Supreme Court cannot substitute its own views on what findings of fact the assessors and the trial judge ought to have made unless a completely wrong assessment was made. It was open to the assessors and the judge to arrive at the conclusion they did and there is no basis on which the finding of fact can be disturbed by this Court.
    
98. This case did not depend on identification of the accused or the forensic report. It depended on the caution interview and there was no need for directions on identification.
    
99. The prosecution’s case largely depended on the caution interview and in that the petitioner had admitted that he and TBS had planned to kill the taxi driver. The idea was generated by TBS and both executed the plan. In view of that admission, the trial judge correctly gave directions on joint enterprise and left it to the assessors to find whether the two acted jointly to kill Mohammed Nasir. There is no deficiency or inadequacies in the directions.
    

General Remarks

100. Before I go any further I must say that the trial judge had asked the parties if they needed any re-directions in the matter. The parties did not seek any re-directions on the grounds they allege that the directions were inadequate. Was this done for a deliberate reason to find a ground of appeal? If that is so, the appellate courts approach must be stringent.
     
101. Litigants must not wait for trial judges to make mistakes to find a point of appeal. The transparent nature of litigation requires that the trial judge be given an opportunity to correct any errors made. If the trial judge has asked parties to seek re-directions and they do not and subsequently raise the issue in the appellate Court then in the absence of any cogent reason, it should be held against that party as having employed a deliberate tactic to find an appeal point.
     
102. The petitioner has not given any reasons why any re-directions were not sought. His complaint now to this Court that he will suffer a miscarriage of justice is therefore unacceptable.
     

Special Leave to Appeal

103. Although I have decided that the question of extension of time for raising the appeal is not justified on the consideration of the factors, it is proper that I address whether any one of the grounds raised meets the statutory threshold to be granted special leave.
     
104. S. 7(2) of the SCA states that “in relation to a criminal matter, the Supreme Court must not grant special leave to appeal unless a question of general importance is involved; a substantial question of principle affecting the administration of criminal justice is involved; or substantial or grave injustice may otherwise occur”.
     
105. The various grounds raised in this Court do not raise any questions of general importance or any substantial question of principle affecting the administration of criminal justice. The grounds raised in the Court of Appeal do not have any merits. Even the new grounds do not have any merits. As a result no injustice will occur if those grounds are not permitted to be argued in this Court.
     
106. The petition for special leave must be dismissed.
     

ORDERS OF THE COURT

107. The orders of the Court are:
     

(1). The application for extension of time to appeal is dismissed.

(2). The application to amend and argue new grounds of appeal is dismissed.

(3). The petition for special leave is dismissed.

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Hon. Justice Suresh Chandra

Justice of the Supreme Court

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Hon. Madam Justice Chandra Ekanayake

Justice of the Supreme Court

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Hon. Madam Justice Anjala Wati

Justice of the Supreme Court

Solicitors

1. Petitioner in Person.
2. Office of the Director of Public Prosecutions.