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Balekivuya v State [2016] FJSC 37; CAV0014.2016 (26 August 2016)


IN THE SUPREME COURT OF FIJI AT SUVA

CRIMINAL APPELLATE JURISDICTION


CASE NUMBER: CRIMINAL APPEAL NUMBER: CAV 0014 of 2016

(Court of Appeal No. AAU 0081 of 2011)

(Suva High Court Criminal Case Number: HAC 0091 of 2010)


BETWEEN: SALESI BALEKIVUYA

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: Mr. Mohammed Yunus of LAC for the Petitioner.

Mr. M. Korovou for the Respondent.

Date/Place of Hearing: Monday 15 August 2016 at Suva.

Date/Place of Judgment: Friday 26 August 2016 at Suva.


------JUDGMENT OF THE COURT


Chandra, J

  1. I have the read the draft judgment of Wati, J. I agree with her reasons and conclusions that the grounds of appeal which were argued in the Court of Appeal in respect of which leave is sought for extension of time to appeal does not have any merits. An order for enlargement of time will be futile.
  2. Even if an enlargement of time was to be granted, the special leave criteria cannot be met for the grounds to be considered.
  3. The issue of self-induced intoxication was never an issue at the trial. The evidence of the petitioner indicates that he was fully aware and conscious of what he was doing on the day prior to the incident, during the incident and the aftermath of it. Even if the trial judge gave directions on intoxication, the assessors and the trial judge could have reasonably found that the petitioner had the intention to commit the offences.
  4. The elements of murder were outlined by the trial judge as it is defined using s. 15(2), 16 (1), 16 (2), and 237 of the Crimes Decree 2009. The use of the word “willful act” to describe the conduct that the petitioner was engaged in was not in any way prejudicial to the petitioner. In fact the prosecution can be said to have an additional burden to discharge beyond reasonable doubt that the act was willful.
  5. The petitioner also sought to argue additional grounds which were not raised in the Court of Appeal. Although this Court has jurisdiction to entertain new grounds of appeal, it will only do so in the most exceptional circumstances:
  6. The petitioner must be able to show that the grounds can be argued with reference to the existing records, that he did not deliberately or for reasons which would benefit him withheld the grounds in the Court below and that the grounds raised are so compelling on the special leave criteria.
  7. It would be adverse to the due administration of justice if, on appeal, a party could raise a new point that had not been raised at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not raised at trial or might have been met by rebutting evidence or cross-examination
  8. The additional grounds do not meet the test for special leave at all for this Court to allow leave to argue the new grounds.
  9. The petition for special leave must be dismissed.

Ekanayake, J

  1. I have read the judgment in draft of Wati, J and the opinion of his Lordship Justice Chandra. I agree with their reasoning and conclusion that the applications for enlargement of time and special leave to appeal must be dismissed.

Wati, J

Background


  1. I think it is important that I lay out the background facts of this case in a summary form before outlining the application that this Court is asked to deal with.
  2. The appellant Salesi Balekivuya (“SB”) and one Saimoni Tukana (“ST”) were charged together for their conduct on 4 May 2010. Between them there were 5 counts of charges. Count 1 was “damaging property” contrary to s. 369(1) of the Crimes Decree 2009 (‘‘CD”). Count 2 was “attempted robbery” contrary to s. 44(1) and 310 (1) (a) (i) of the CD. Count 3 was another “attempted robbery”. Count 4 was theft contrary to s. 291(1) of the CD. Count 5 was “murder” contrary to s. 237 of the CD.
  3. The appellant SB was charged for Counts 1, 2, 3, and 5. ST was charged for Counts 2, 3, 4, and 5.
  4. Since this appeal only concerns SB, I will only set out the particulars of the charges against him.
  5. It was alleged that on 4 May 2010, SB willfully and unlawfully damaged the windscreen and front bonnet of the motor vehicle registration number ED 648 belonging to one Preetikash Pratap to the value $520.00. It was also alleged that on 4 May 2010 SB attempted to rob one Rajinesh Ravnil Chand at 67 Shalimar Street and immediately before such attempt used personal violence on him. SB was also alleged to have attempted to rob one Ashwin Avinash Chand on 4 May 2010 at 67 Shalimar Street and immediately before such attempt used personal violence on him. Further to that, SB was alleged to have on 4 May 2010 at 67 Shalimar Street, with intent to cause death assaulted one Krishneel Singh by striking his head repeatedly with a spade and kicking him causing extensive fractures to his skull and injuries to his brain and body.
  6. SB was convicted for Count 1, Count 3 and 5, that is, for damaging property, attempted robbery of Ashwin Avinash Chand and murder of Krishneel Singh. He was acquitted on Count 2, that is, attempted robbery of Rajinesh Ravnil Chand.
  7. Following the conviction, SB was sentenced as follows:

Count 1: Damaging Property:

9 months imprisonment.


Count 3: Attempted Robbery on Ashwin Chand:

9 years imprisonment.


Count 5: Murder:

Mandatory life imprisonment. To serve a non-parole period of 20 years


  1. The above sentences were to be served by SB concurrently, that is, he was to serve a total sentence of life imprisonment with a non-parole of 20 years.
  2. The background facts were properly articulated by Lord President Calanchini, J who gave the leading judgment in the Court of Appeal. I can do no better that reiterate the facts which his Lordship set out in paragraphs 9 to 11 of the judgment.
  3. On 4 May 2010, SB and ST were part of a group of men at a drinking party at Jittu Estate Youth Hall in Raiwasa. The drinking party had started from the middle of the day and continued until late afternoon.
  4. SB and ST then proceeded to 65 Shalimar Street Samabula for ST to borrow some money from one of his friends residing at that address.
  5. At the same time the deceased Krishneel Singh and two of his friends arrived at 67 Shalimar Street Samabula in a vehicle driven by Krishneel. Krishneel had come to pick some tools from his father’s house which was occupied by the tenants. He parked his vehicle on the driveway and walked down towards his house. The appellants were standing outside 65 Shalimar Street.
  6. SB and ST then attempted to steal money from the two passengers who were sitting in the vehicle. They used force by punching and kicking them. Whilst this incident was taking place, Krishneel returned to the vehicle with a spade. He saw ST attacking one of his passengers and he hit ST with the spade. The two struggled for possession of the spade. SB came to assist ST and they all struggled for the spade.
  7. ST kicked and punched Krishneel to the ground. SB grabbed the spade and repeatedly struck Krishneel on the head. ST kicked Krishneel in the head before they both walked away. SB was still angry and returned again to repeatedly hit Krishneel’s head with a spade.
  8. ST went to SB and took him away. Krishneel later died at CWM Hospital that day as a result of serious skull and brain injuries.

Application

  1. I will concentrate on the proceedings filed by SB. Following the conviction and sentence, SB filed an appeal against conviction and sentence in the Full Court. He was granted leave to appeal by a single judge of the Court of Appeal in respect of some grounds. Some additional grounds were also argued in the Full Court. In total he had raised 6 grounds of appeal.
  2. The appeal against the conviction was dismissed and the sentence allowed in that the non-parole period of 20 years was reduced to 15 years by the Full Court on 26 February 2016.
  3. Pursuant to Rule 6(a) of the Supreme Court Rules 1998 (“SCR”), SB had 42 days to appeal against the decision of the Full Court if he was aggrieved. Before the time for filing of the petition for special leave to appeal expired, SB, on 29 March 2016 filed an application for leave to extend the period by another 42 days.
  4. His letter states that there was lack of resources to rely on to file his appeal and that he was waiting for the court records and all other documents to be released from the Legal Aid. He also alleged that as a lay person he faced difficulties.
  5. After making the application for extension of time, SB did not file any grounds of appeal until 18 July 2016 when he filed his written submissions on the said application. The submission for the first time outlines the grounds of appeal.
  6. The written submissions again repeat the same grounds argued in the Court of Appeal asserting errors on the part of the trial judge. SB further seeks to argue some grounds of appeal which he did not raise in the Court of Appeal.
  7. Since the petition for special leave was not filed on time, this Court has no option but to treat the initial request by a letter dated 29 March 2016 as an application to file the appeal out of time. SB’s submission will also be treated as an additional application to amend the grounds of appeal and a document containing the proposed grounds of appeal.
  8. At the hearing, counsel for the petitioner was alerted of this issue and he agreed that this was an out of time application for special leave to appeal. I will deal with the application for leave to appeal out of time first.
    1. Enlargement of Time
  9. There are no specific provisions in the Supreme Court Rules (“SCR”) on the powers of the Supreme Court to hear and determine an application for extension of time to bring an 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.
  10. 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.
  11. I will rely on some authorities which have attempted to identify the factors that need to be considered for a proper exercise of discretion in considering the application for enlargement of time.
  12. In R v. Regal Park Homes Inc. J 9 O.R (3d) 469; [1992] O.J. No. 215; 1992 CanLii 7642 (on SC) Fairgrieve Prov. J said that “in determining whether an extension of time should be granted, a number of factors need to be considered...The requirements include the following:
    1. That the applicant has shown an intention to appeal within the time limited;
    2. That there is sufficient merit to the appeal;
    3. That the applicant exercised due diligence or has reasonable excuse for not having instituted the appeal within the appeal period; and
    4. That refusal of the application would amount to a denial of justice.
  13. In Kamlesh Kumar v. State; Mesake Sinu v. State [2012] FJSC 17; CAV0001. 2009 (21 August 2012) the factors to be considered when dealing with an application for enlargement of time were identified as follows:
  14. I also cast my mind to the decision of 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”


  1. The above cases more or less outline the same factors which need 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 factors:
    1. Bona fide intention to seek leave to appeal/ Whether counsel or party moved diligently/ Explanation for the Delay
  2. It is clear that SB had decided to file an appeal against the decision of the Full Court. That intention is clear from his letter to the Lord President which was written and received before the time prescribed for filing an appeal. In the letter SB had sought an additional 42 days to file his appeal. That intention did not materialize until 18 July which is three months after the expiration of the appeal period. The appeal was not filed even within the additional 42 days that SB had requested for. In that regard I find that the petitioner did not move diligently to file his appeal.
  3. The petitioner stated that the reason why he needed more time was that there was lack of resources to file his appeal, that he was waiting for legal aid commission to return his papers and that he is a lay person.
  4. It is not the filing of the grounds of appeal in which access to legal materials were required. I understand that such assistance may be necessary when the petitioner files his written submissions. The filing of the grounds of appeal cannot be delayed because much of the information depends on the information available in the trial records and the judgment of the Court of Appeal. SB would have had the benefit of the trial records in any way as he had appeared in Court of Appeal to appeal against that decision.
  5. Further, SB appears to be very familiar with what happened in his case. With that familiarity, he could have filed the grounds of appeal. The Court is very flexible when it comes to inmates filing their grounds of appeals. Even if it is not properly worded and crisp as lawyers normally draft, their grounds are accepted and allowed to be argued. I therefore see no reason why SB could not file his appeal within time.
  6. SB also says that he was waiting for the records from legal aid. He does not mention when he made the request and when it was complied. If the request was not complied with, SB ought to have brought this to the notice of the Court and have asked the Court for another set of records. Appropriate directions would have been given.
  7. I find that SB’s explanation for the delay unacceptable. He always had the intention to appeal the decision of the Full Court and the Court takes notice of that. However after having expressed the intention, he left the application in abeyance without seriously pursuing it. He cannot be said to have acted quickly and diligently.
  8. Appellants cannot sit on their rights for weak reasons like this as they know that their right to appeal out of time is a discretionary matter and that they can lose out on their right to appeal altogether. The short time period for appeal means that the legislature requires that there is finality to criminal matters and those who do not exercise their right within time cannot be easily allowed to argue matters when they feel free to.
    1. Extent of Delay.
  9. The extent of the delay I find is large. The petitioner ought to have filed his appeal on or before 7 April 2016. He filed his grounds of appeal on 18 July 2016. The delay is for more than 3 months. The extent of the delay is not justified either.
    1. Prejudice
  10. In such cases, it is difficult to say what prejudice the State will suffer but there is natural prejudice to the State when it comes to the question of administration and management of files. There has to be finality to criminal proceedings.
  11. Litigants are entitled to know when the matter is going to be finalized. That is all the reason why an appeal period is prescribed. If a litigant is dissatisfied with the judgments, he or she must at a very early stage form an intention to appeal and execute that intention whilst the statutory right to appeal is still alive. In absence of that, a party to the cause is entitled to assume that the matter has come to an end.
  12. The State is directing its resources towards the benefit of the people of this country and timely appeals are always necessary for the State to make a determination of how and when to allocate resources in matters which are still pending. Files which are deemed to be closed are usually not allocated any more resources and untimely appeals cause a lot of disruption to the case management for the State.
    1. Grounds of Appeal and its Merits
  13. The petitioner in his submissions has outlined 8 grounds of appeal alleging errors on the part of the trial judge. Out of the 8 grounds, only 2 were raised in the Court of Appeal. Others are fresh grounds that are sought to be argued.
  14. The ground of appeal on sentence was withdrawn by counsel for SB in Court. I will thus not deal with that.
  15. I will first outline the grounds of appeal which were argued by the petitioner in the Court of Appeal. My next task would be to identify the new grounds of appeal which the petitioner seeks to argue in this Court and consider whether leave should be granted to raise those grounds.
  16. The two grounds of appeal that were argued in the Court of Appeal were:
    1. “That the learned trial judge erred by misdirecting the assessors on the legal term of self-induced intoxication which made the position of the assessors very difficult to assess the facts. The appellant was insane as a result of overdose in alcohol (beer, rum and rolls of marijuana).
    2. That the Learned Trial judge erred in law by not properly explaining the definition of the three elements of murder on law to the assessors and he also misdirected the assessors on how to apply the facts on the four elements of murder to prove the charge of murder (malice aforethought not established)”.
  17. I will deal with each ground in turn.

D - 1. Direction on self-induced intoxication


  1. The counsel for SB argued that the undisputed evidence was that he was drunk on the day of the incident. He said that the defence case was only based on provocation and self- defence. Intoxication was not litigated. Mr. Yunus however argued that since there was evidence of drunkenness, it was the duty of the trial judge to give directions on the effect of self- induced intoxication to the assessors.
  2. Mr. Yunus takes issue with paragraph 16 of the summing up where his Lordship the trial judge said that “in ascertaining their intentions, at the time of the alleged murder and the other offences, you must disregard any evidence that suggested that they were too drunk as to be incapable of forming an intent to cause death”.
  3. The Full Court found that self-induced intoxication was not raised at the trial and that there was no evidence led to suggest that due to his drunkenness, SB was unable to form the necessary intent to commit the offences complained off.
  4. SB does not say why the Court of Appeal was not correct in arriving at that finding. Once again at this level SB asserts that the trial judge made the mistake. For the sake of fairness, it is assumed that the petitioner is not content with the decision of the Full Court which means that this Court has to make a finding of whether the Full Court arrived at the correct conclusion.
  5. In dealing with the ground I first cast my mind to the day when his Lordship the trial judge delivered his summing up to the assessors. On the same day, that is, on 1 August 2011, after delivering his summing up, his Lordship asked both the counsel whether they wanted re-directions on any other matters.
  6. Some re-directions were sought and given. None of the counsel sought re-directions on the effect of self- induced intoxication on the intention of petitioner. The petitioner or his counsel should have at least sought directions on this aspect. I find that there was omission to seek re-directions because there was no evidentiary basis to give directions on self-induced intoxication.
  7. Intoxication was never a live issue at the trial. I find that it is an after- thought by the petitioner that he was intoxicated to an extent that he did not form the necessary intention to commit the offences he was charged for.
  8. It is important for the purposes of finality and administration of justice that the accused persons are precluded from opening new issues which were not raised in the trial otherwise the administration of justice would go into disrepute. There would not be finality to matters. Every accused will run his defence in one way at the trial and save the rest for the appeal if he is convicted. He will then raise new grounds for a fresh trial.
  9. In R v. Vidulich (1989) CanLii 231 (BC CA), 37 B.C.C.L. (2d) 391 (C.A.), Lambert J. A at pp. 398-99, discusses the effect of raising new issues which were not subject to contention at the trial stage:

“...An accused must put forward his defences at trial. If he decides at that time, as a matter of tactics or for some other reason, not to put forward a defence that is available, he must abide by that decision. He cannot expect that if he loses on the defence that he has put forward, he can raise another defence on appeal and seek a new trial to lead the evidence on that defence.


The result is that it is only in those exceptional cases where balancing the interests of justice to all parties leads to the conclusion that an injustice has been done, that a new ground is likely to be permitted to be raised on appeal. Such a new ground is more likely to be permitted where it raises an issue of law alone than where it requires the leading of evidence either in the appeal court or at a new trial”. Underlining is Mine


  1. Hon. Justice Goundar who gave the leading judgment in Mesulame Waqabaca and Tiko Uate v. The State [2015] FJCA 167; AAU 0063.2010 (3 December 2015) made very pertinent observations and consequences that a party may face when he complains of impropriety on the trial judges directions to the assessors after waiving his or right not to seek re-direction on any matter when asked by the trial judge. He Lordship observed (at para 12):

“Counsel for the first appellant submits that the directions are inadequate because the assessors were not told that if they found the appellant did not have the requisite mens rea for murder due to his state of intoxication at the time of the offending then they may find the appellant not guilty of murder but guilty of manslaughter. At trial, the parties were given an opportunity to seek re-directions after the Summing Up was delivered. Counsel for the appellant did not seek any re-directions. No explanation was offered for not seeking re-directions on matters which are now appealed. One can only assume that by not seeking re-directions, counsel for the appellant did not find the alleged inadequacy in the direction on intoxication and manslaughter insignificant”.


  1. Having made those observations, his Lordship still went ahead and examined whether the lack of proper directions caused any serious miscarriage of justice and he found the answer in the negative. I also propose to do the same: to analyse whether there was any serious miscarriage of justice when the trial judge did not give any directions on self-induced intoxication.
  2. I must reiterate that although there was evidence that SB was drunk, there was no evidence that he did not know what he was doing or that in his state of drunkenness, he could not form the necessary intention to commit the offences. On the contrary, the evidence from the caution interview and that in the trial shows that he was fully aware of what he was doing.
  3. I will outline the evidence from the caution interview first. In the interview, SB clearly recollected what happened on the day of the offending. He said that he was drinking at youth Hall in Jittu Estate with four other people. He clearly recollected who those people were. He also said that his uncle Manu joined them later. They finished drinking one carton of beer at about 12.30 pm and then proceeded to buy 40 oz. rum by collecting cash.
  4. He further mentioned that they drank the rum in the same Youth Hall. With the rum he has had 2 rolls of marijuana. He said they finished the rum in the afternoon, but that he could not recall the time as he was heavily drunk.
  5. SB further stated that after finishing the rum he headed towards Raiwaqa with one ST. He also recalls breaking a windscreen of a vehicle at Raiwaqa for which he was charged for damaging property. He even recalled where the vehicle was parked. He said it was parked near the bus garage. He remembers that after the incident he went back to Jittu Estate at 5 pm.
  6. He woke up the other friend named Navi. There it was planned with him and ST that they will go to look for some cash at Shalimar Street. They left for Shalimar Street. He clearly described the path he followed to Shalimar Street. He said he followed the cross cut steps from Jittu Estate to Shalimar Street and followed the left side to tuckers.
  7. SB said that when they arrived at Shalimar Street he saw a white vehicle parked in a driveway and two Indian men were sitting inside. ST grabbed the Indian man in the front seat and SB started punching the one at the back seat to grab him to get the money.
  8. SB then described how he was hit by a spade by the deceased and how he tried to block the hit when the deceased tried to swing in for the second time. He stated how he chased the deceased. He described the struggle between ST and the deceased for the spade. SB said that ST punched the deceased and grabbed the spade from the deceased. The deceased fell on the road. SB said that he grabbed the spade from ST and hit the deceased’s head and when he tried to get up again he hit his jaw and head. He said then he left with ST and whilst leaving, he got wild again. He came back, got hold of the spade and hit the deceased 7 or 8 times on his head with the spade.
  9. SB also denied using any crowbars. He stated that all happened because he was drunk and very angry. Even the eye witnesses described the similarity in the events.
  10. The evidence from the caution interview indicates that SB knew what he was doing on the day in question. He was not so drunk as not to form the intention to commit the offences.
  11. Let me address his evidence in Court. From the evidence in Court, it is again apparent that he knew what he was doing. He remembered the names of people he was drinking with and what all they drank that day. He describes how he saw prosecution witness Kenesi Wati crossing the shortcut to Shalimar Street at about 5 pm and that ST called her. He said he woke Navi up and went through the short cut to Shalimar Street.
  12. SB described in his evidence the path they followed to Shalimar Street. He said his flip flop fell and Navi picked and threw it to him. He saw a white vehicle parked beside the driveway.
  13. He described how the fight with the two passengers in the vehicle started. He said that when Navi threw the flip flop to him, it hit the car and the two Indian boys swore at them.
  14. He said that ST thought that the two Indian boys had sworn at him so ST ran and asked them why they were swearing at him. He even remembers the swear words used.
  15. SB then said that he went to the Indian boys and told them not to swear. He said that ST then slapped the Indian boy in the front seat who punched him back. SB said that the Indian boy went to the passenger seat and ST tried to pull him back.
  16. SB said that he was approaching them at the time. He then saw the deceased boy running up with a spade and the boy hit ST’s back with a spade and when ST tried to look back, the deceased tried to hit his face with the spade but ST blocked it with his hand.
  17. He describes that there was a struggle for the spade between the two. He went to stop them when he was hit by a crowbar. He explained that ST and the deceased were on the ground and the spade was beside the deceased. The deceased tried to take the spade and hit ST. SB said he tried to stop the deceased but the deceased tried to hit ST again. The deceased also hit him on his left arm.
  18. He said he got hold of the spade and there was a struggle for it and in the struggle the deceased fell. SB said that when the deceased fell, he lost his temper and hit the deceased with the spade. He does not know the number of times he hit him. He said he did not know that he died and he did not mean to kill him. He hit him to release his anger and he wanted him to lie down.
  19. SB then described how he came back to the Youth Hall. He said he went to the bathroom and when he came back he met Detective Constable John. He also said he realized he was in a police vehicle and that he tried to escape and he was caught by the police.
  20. The petitioners explanation of what he did during the day, how he ended up in Shalimar Street, how the fight broke out, what his actions were during the fight and the fact that he hit the deceased because he was very angry, all point to the fact that he knew what he was doing on the day. He was not intoxicated to the extent that he did not form the necessary intention for the offences complained of to be committed.
  21. There was no evidentiary basis on intoxication to an extent that SB could not form the necessary intention. There was evidence that in his drunken state, SB knew what he was doing. His evidence that he hit the deceased because he was angry and that he wanted him to lie down and that him hitting the deceased several times after ST pulled him away because he lost his temper all cuts through his argument that he did not have the necessary intention.
  22. In Tej Deo v. The State [2008] FJCA 23; AAU 0045. 2006 (23 June 2008), Goundar JA said what is applicable to this case as well:

“In the present case, after the trial judge had summed up to the assessors, he invited the counsel for the appellant and the counsel for the prosecution to make submissions on any misdirection or omission. We note that the counsel for the appellant did not take this opportunity to seek any direction on the effect of intoxication on the appellant’s intention.


Given the appellant’s evidence that he was not so drunk, that he knew what he was doing, that he had accidentally hit the deceased with a frozen chicken and that he had not assaulted her, we are satisfied that there was no evidential basis requiring directions on the appellant being unable to form the specific intent required for murder due to the influence of alcohol, and we are satisfied that there is no risk of a miscarriage of justice having resulted”.


  1. The trial judge did say to the assessors that “you must disregard any evidence that suggested that they were too drunk as to be incapable of forming intent to cause death”. However this was said in light of the entire evidence which did not at any point raise that due to the intoxication, SB did not form the intentions to commit the offences. On the contrary there was evidence that although SB was drunk, he knew what he was doing. That is why immediately after saying the above in paragraph 16, his Lordship the trial judge goes onto say that:

“A drunken intent to cause death, is still an intent as described in paragraph 12 (iii) (a) hereof. In other words, a drunken intent to cause death, is still sufficient to satisfy the third element of murder,...”


  1. The trial judge also directed the assessors in paragraph 16 that in order to find whether SB had the requisite intention to commit the offences, they have to rely on what he said and did at the time. They were directed to see what SB did on the day from drinking, to entering into a fight, his aftermath actions and the post-mortem report. In this regard the trial judge was fair to ask the assessors to look at the entire circumstances to ascertain the intention of SB.
  2. SB did not suffer any prejudice when the trial judge gave directions in the form he did as there was no evidential basis to give such directions on intoxication. Even if the trial judge gave the directions on intoxication, the assessors and the trial judge could have reasonably found SB guilty of the offences he was charged for.
  3. The ground of appeal does not have any merit.

D – 2. Directions on the Elements of Murder

  1. SB contends that the trial judge did not direct the assessors properly on the elements of murder. He asserts that the trial judge should have directed the assessors on which relevant evidence to accept and which relevant evidence to reject. This ground is similar to that raised in the Court of Appeal.
  2. The Full Court found that the directions of the trial judge on the elements of murder were that:
  3. The Full Court found that s. 237 of the Crimes Decree states that a person commits an indictable offence if:
  4. The Full Court found that the trial judge did not err when it directed the assessors that the conduct must be a “willful act” because s. 15(2) of the CD defines “conduct” as meaning “an act or an omission to perform an act or a state of affairs”.
  5. The Court further found that s. 16(1) of the CD provides that conduct, that is an act, can only be a physical element of the offence if it is voluntary and section 16 (2) of the CD provides that conduct is only voluntary if it is a product of the will of the person whose conduct it is.
  6. The finding of the Full Court was that the judge had used all the definitions to arrive at the elements of the offence and that the petitioner was not prejudiced in any way.
  7. At the Full Court another limb of the petitioner’s complaint under the same head was that the trial judge had used examples which were prejudicial to him in that it may have given the impression to the assessors that the judge was bolstering the case of the prosecution. He said that the trial judge directed the assessors on what could comprise as “conduct”. His Lordship said that it could be “kicking, punching and hitting with a spade on the head”.
  8. The Full Court found that the directions on the elements of murder were correct and that using of examples to clarify the elements is not erroneous. However the Full Court said that using examples similar to the facts of the case before the Court is not appropriate. Notwithstanding that, it was found that there was no deficiency in the prosecution case which could have been bolstered by the use of the examples the trial judge did.
  9. It was found that there were witnesses who gave accounts of the facts of how the deceased met his death and after examining holistically the facts of the case; there was no prejudice to the petitioner.
  10. I must say that I have nothing to add to the findings of the Court of Appeal. The Full Court was correct in identifying that the elements of the offence of murder were set out in the correct form. I would say that the elements were comprehensive using the provisions of s. 15(2), 16(1) and (2), and s. 237 of the CD.
  11. As far as the use of examples is concerned, it merely described the types of acts which could constitute conduct. There was no denial by the petitioner that the conduct took place by kicking punching and hitting with a spade. In light of that admission and the evidence of the eye witnesses on conduct, I do not find that the appellant was prejudiced when the examples similar to the facts of the case were used. However I must mention that use of closely related examples are inappropriate and must be discouraged in the summing up.
  12. The appellant argues that the trial judge should have directed the assessors on which evidence they should accept and which they should reject. This is a matter for the assessors and not the trial judge to direct the assessors on. His Lordship the trial judge correctly pointed out in paragraph 1 of the summing up on the duty of the assessors which cannot be flawed in law:

“...I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your opinions. You are the judges of fact...”


  1. If the judge were to direct the assessors on which evidence is to be accepted and which is to be rejected then it makes no sense why even there would be assessors in the Court.
  2. I find that the ground does not have any merit.
    1. Fresh Grounds of Appeal
  3. The fresh ground of appeal that the petitioner seeks to argue were framed as follows:
    1. “That there was insufficient direction on law on “provocation”.
    2. That my right to fair trial was violated-
      • (a) when the trial judge failed to direct the assessors to separately assess the evidence of all four counts.
      • (b) when the trial judge failed to direct the assessors in law on the definition of all 5 counts and their elements to prove and the evidence to accept or not.
      • (c) jointly tried of the 5 counts by the same panel of assessors.
    3. That there was no direction on one singular transaction (spur of the moment) to the assessors.
    4. That the learned trial judge erred in law when convicting on murder when the evidence of “joint enterprise” was available in evidence and when the appellant was acting in concert with his accomplice.
    5. That the admissibility of the confession was not fairly dealt with during the proceeding of trial within trial (voir dire)”.
  4. The Court of Appeal is the first – tier appellate court in this case. In the Court of Appeal, the appellant was represented by a reliable defence counsel Mr. Yunus. He is the same counsel who represented SB in this Court. When the counsel for Legal Aid Commission came on record, he was granted an opportunity to file the amended grounds of appeal and he did file the amended grounds.
  5. If the counsel or the petitioner felt that additional grounds were necessary, it would have been prudent that those grounds be raised in the Court of Appeal itself.
  6. Mr. Yunus does not give us any reason why he did not raise these grounds in the Court of Appeal. I find it strange that he now purports to raise new issues in this Court. I am not saying that this Court lacks jurisdiction to hear new grounds of appeal but there are stringent tests or a very high threshold that has to be satisfied before leave will be granted to argue the new grounds.
  7. In Eroni Vaqewa v. The State [2016] FJSC 12; CAV0016.2015 (22 April 2016), it was 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].
  8. 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

  1. 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”.

  1. 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 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:

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


  1. The records to determine the new issues raised on appeal are available before the Court. However, I reiterate that Mr. Yunus failed to convince us that there were genuine reasons why he did not raise these grounds in the Court below. It is therefore presumed that this is a deliberate action to impeach on the rule of finality of litigation. The petitioner is abusing the process of the Court by litigating his case on piece meal basis.
  2. The petitioner has to show that the effect of the new grounds that he is raising is compelling under the special leave criteria making it a most exceptional case to consider leave. The grounds raised do not meet the special leave criteria, let alone being compelling. There is no dire need for leave to be granted as a result.
  3. The brief discussion below will show that the new grounds do not have any merits.

Direction on Provocation

  1. The petitioner says that there were insufficient directions in law on the defence of provocation. In arguing this ground the petitioner says that the trial judge did not give any directions on provocation.
  2. The petitioner had raised this issue before a single judge and his Lordship Justice Chandra had found that directions on provocation were given but since the judge had expressed his views that the provocation was not available, the matter should be left to the Full Court as it is a question of law.
  3. The trial judge had given directions on provocation at paragraphs 36 and 59 to 61 of the summing up. I have read the summing up in great detail and I do not find that the trial judge had suggested at any stage that the defence of provocation did not apply. He has very clearly given directions to the assessors that it was for them to assess whether SB was provoked.
  4. I do not find that the directions of provocation are wrong in law and that there was any miscarriage of justice as a result of the directions given above. This ground of appeal has no merits.

Right of Fair trial Violated

  1. The petitioner argues that his right to fair trial was violated as:
  2. The petitioner was charged for attempted robbery, damaging property and murder. The petitioner says that he did not receive a fair trial because all the offences were included in one indictment and the same panel of assessors heard the case. He says that this has influenced the minds of the assessors.
  3. He also argues that there were inadequate directions on all the offences. He further contends that the assessors should have been told to assess the evidence separately.
  4. It is permissible in law to charge a person for separate offences in the same charge or information if the offences are founded on the same facts or form or are part of a series of offences of the same or similar nature: s. 59(1) of Criminal Procedure Decree 2009.
  5. In Kray 53 Cr App R 569, it was said:

“ By rule 3 of schedule I to the Indictments Act 1915: “ Charges for any offences...may be joined in the same indictment if these charges are founded on the same facts, or form or are part of a series of offences of the same or a similar character”.


Two offences may constitute a “series” within the meaning of the above rule. The rule does not mean that joinder of offences cannot be sanctioned unless they arise out of the same facts or are part of a system of conduct. A sufficient nexus must, however, exist between the offences, and this is clearly established if evidence of one offence would be admissible on the trial of the other, but the rule is not confined to such cases. All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can be properly and conveniently tried together in the general interests of justice, which include, in addition to the interest of the defendants, those of co-defendnats, the Crown, witnesses and the public...”


  1. The offences for which the petitioner was charged were all committed on the same day and in the same single transaction. In fact it is only fair that all the charges be tried together as all were linked.
  2. The trial judge clearly gave directions on the elements of the offences separately. The elements of the offence of robbery with violence were outlined in paragraphs 18 and 19 of the summing up and the elements of the offence for damaging property were outlined in paragraph 20. The trial judge also summed up the evidence given by each witness including the accused person’s. I therefore fail to comprehend why the petitioner was aggrieved at the directions on the elements and the summing up of the evidence. It was adequate in all the circumstances of the case.
  3. The ground lacks merit.

No direction on one single count (spur of the moment)

  1. The petitioner did not raise this ground in the Court of Appeal. In the Supreme Court he argues that the judge should have directed the assessors to only focus on the murder case and not the other counts. Since all the counts were in one indictment, it would be unfair and prejudicial to the State if the trial judge did not give directions to consider the other counts. I find this ground unintelligible.

Joint Enterprise

  1. Under this ground, the petitioner says that both ST and he acted together. Since ST was convicted for manslaughter, he too should be convicted for manslaughter.
  2. The trial judge gave adequate directions on joint enterprise and left it to the assessors to make a finding. The assessors were clearly told that just because they are jointly charged does not mean that they are guilty and evidence of one accomplice can only be used against him and not the other person.
  3. There was clear evidence that after ST and the deceased struggled for the spade and when ST won possession of it, he hit the deceased with it on his head. The deceased fell. SB then pulled the spade from ST and hit the deceased when he tried to get up. After that both left. SB then got angry and came back and repeatedly hit the deceased with the spade several times. The eye witnesses to the scene also described the events similarly.
  4. In light of SB’s involvement to the extent described in the evidence, it was open to the assessors to make a finding of murder against SB. The trial judge agreed with the majority verdict.
  5. The involvement of ST in the fight stopped after he managed to hit the deceased and put him to the ground. SB continued to attack the deceased in a very fierce way as he was very angry and had lost his temper. His involvement is more than ST’s involvement. In that regard, the verdict of murder is one that a reasonable Court would have arrived at.

Admitting Confession in Voir Dire


  1. The final fresh ground states that the admissibility of the confession was not fairly dealt with during the trial or voir dire. The Court analyzed all the evidence of the prosecution including the medical evidence and found that the contention of SB that he was seriously assaulted by the police cannot be sustained on the evidence. The Court accepted the evidence of the prosecution. It was open to the Court to make that finding. The Supreme Court cannot substitute its views for that of the trial judge unless a completely wrong assessment of the evidence was made or that the correct principles were not applied. I do not find that there is any ground for interfering with the finding of the Court.
  2. Having said that, I must say that in the main trial, SB gave evidence and admitted most of what he said in the caution interview. He admitted that a fight erupted and that he got involved in the fight. He assaulted the deceased so badly because he was very angry. He continued to hit the deceased who was lying down. His oral testimony in Court substantiated the confession statement. The question of admissibility therefore does not arise. The issue is whether the elements of the offences were met and on the evidence it was open to the assessors and the judge to arrive at a finding that SB was guilty of murder.
  3. None of the new grounds raised are compelling on the special leave criteria for leave to be granted.

Special Leave to Appeal


  1. 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 the issue of special leave to appeal.
  2. 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”.
  3. The issues raised before the Court are all on settled law and does not have any impact on the administration of criminal justice. The grounds raised do not require this Court to set new rules of procedure or set any new principles of law. The grounds raised and discussed above do not have any merits and therefore the question of substantial or grave injustice does not arise.
  4. The petition for special leave must be dismissed.

ORDERS OF THE COURT


  1. The orders of the Court are:

(1). The applications for extension of time to appeal and for amendment of the grounds of appeal are dismissed.


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


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

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


Solicitors

  1. Legal Aid Commission for the Petitioner.
  2. Office of the Director of Public Prosecutions.

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