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Supreme Court of Fiji |
IN THE SUPREME COURT OF FIJI
[APPELLATE JURISDICTION]
Criminal Petition No. CAV0011 of 2018
[From Criminal Appeal No. AAU160
of 2015 and High Court of Fiji Action No. HAC 71 of 2015]
BETWEEN:
SAILOSI ROKOTUIWAILEVU
Petitioner
AND:
THE STATE
Respondent
Coram : Hon. Mr. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Mr. Justice Brian Keith, Judge of the Supreme Court
Hon. Mr. Justice Priyasath Gerard Dep, Judge of the Supreme Court
Counsel : The Petitioner in person
: Mr. L.J Burney for the Respondent
Date of Hearing : 14 April 2022
Date of Judgment : 28 April 2022
JUDGMENT
Marsoof, J:
[1] Following a trial in the High Court of Fiji at Lautoka, the Petitioner was convicted of attempted murder of his father, Peni Navuku, contrary to sections 44(1) and 227 of the Crimes Act No. 44 of 2009 and sentenced to life imprisonment with a minimum term of 8 years.
[2] The petitioner filed an application for leave to appeal against conviction only which was dismissed by the learned single judge of the Court of appeal (Goundar JA) pursuant to section 35(2) of the Court of Appeal Act for the reasons set out in his Ruling dated 26 January 2018 (“the Ruling”).
[3] By his undated and handwritten letter entitled “Notice of Appeal and Application for Amended Grounds Against Conviction and Sentence to the Supreme Court” received in the Registry of this Court on 14th June 2018, the Petitioner has sought to appeal against the said Ruling of a single judge of the Court of Appeal.
[4] As pointed out in paragraph 5 of the written submissions of the Respondent dated 9th December 2019, the said application has been filed out of time.
[5] It would appear from the Supreme Court docket that the Petitioner was granted several dates to file his written submissions, but after much delay he has tendered his written submissions dated 24th January 2020 received in the Registry of this Court on 5th February 2020.
[6] The Respondent has thereafter filed its Supplemental Submissions at the Registry of this Court on 15th February 2021.
[7] As this Court observed in its judgment in Tawatatau v State [2018] FJSC 2; CAV008.2017 (26 April 2018), the exclusive jurisdiction of the Supreme Court of Fiji to hear and determine appeals from all final judgments of the Court of Appeal is derived from section 98(3)(b) of the Constitution of the Republic of Fiji. Section 98(4) of the said Constitution provides that an appeal may not be brought to the Supreme Court from a final judgment of the Court of Appeal unless the Supreme Court grants leave to appeal.
[8] Rule 5 (a) of the Supreme Court Rules provide that an application seeking leave of this Court from a final judgment of the Court of Appeal must “be lodged at the Court registry within 42 days of the date of the decision from which special leave to appeal is sought.”
[9] The Petitioner’s mode of making his application for leave to appeal to this Court is procedurally flawed in two ways, namely that he has failed to make such application by way petition supported by affidavit for leave to appeal as laid down in Rule 4 of the Supreme Court Rules 2016, and further he has failed to apply for enlargement of time though the said Notice of Appeal has been filed out of time.
[10] Considering the fact that the Petitioner is an incarcerated prisoner, this Court may consider the said procedural lapses with some leniency. However, to consider the grant of leave to appeal, it is incumbent for this Court to consider the question of enlargement of time.
Enlargement of Time
[11] Enlargement of time is an essential pre-requisite for this Court to consider any application for leave to appeal against a final decision of the Court of Appeal filed outside the time period prescribed for the filing of such applications.
[12] Despite the absence of any provision in the Constitution of the Republic of Fiji or any other legislation that seek to confer on the Supreme Court the power to grant enlargement of time, this Court has in a long line of decisions including State v Ramesh Patel Criminal Appeal No.AAU0002 of 2002S (15 November 2002), CAV0003.09 (1 May 2012), McCaig v Manu [2012] FJSC 18; CBV0002.2012 (27 August 2012), Rasaku v State [2013] FJSC 4; CAV0009, 0013.2009 (24 April 2013), Tiritiri v. The State [2014] FJSC 15 CAV9.2014 (14th November 2014), Nabainivalu v State [2015] FJSC 22; CAV027.2014 (22 October 2015), Tukana v State [2016] FJSC 23; CAV 0024.2015 (22 June 2016), Lal v State [2017] FJSC 20; CAV0036-0037 and 0039.2016 (20 July 2017), Tawatatau v State [2018] FJSC 2; CAV008.2017 (26 April 2018) and Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020) assumed that it possesses jurisdiction to grant enlargement of time in appropriate cases.
[13] It is noteworthy that enlargement of time has generally been permitted by courts only exceptionally, and only in an endeavor to avoid or redress some grave injustice that might otherwise occur from the strict application of rules of court. In paragraph 4 of his judgment in Kamalesh Kumar v State; Sinu v State [2012] FJSC 17; CAV0001.2009 (21 August 2012), Chief Justice Anthony Gates (as he then was) enumerated the factors that will be considered by a court in Fiji for granting enlargement of time as follows:-
(i) The reason for the failure to file within time.
(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court’s consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?
[14] As was observed in paragraph 4 of the said judgment, the abovementioned factors “may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargement of time.”
[15] It is trite law that in a case such as this where the application for leave to appeal has not been filed within the time prescribed by law, the person seeking leave to appeal has to satisfy this Court in the first instance that there are adequate grounds for granting enlargement of time for seeking leave to appeal. For this purpose, it is necessary to examine the facts and circumstances of this case in the light of the factors enumerated by his Lordship Anthony Gates CJ in the Kamalesh Kumar case.
Reason for the Failure To file Within Time and the Length of the Delay
[16] The factors enumerated as (i) and (ii) in paragraph [13] of this judgment may conveniently be considered together. Despite his delay, the Petitioner has not provided any explanation for his delay when invoking the appellate jurisdiction on this Court nor applied for enlargement of time from this Court. In fact, in his application of 14th June 2018, he has not even sought leave to appeal from this Court which is an essential prerequisite for invoking the jurisdiction of this Court.
[17] Though the Petitioner was represented by Legal Aid before the Court of Appeal, he is not represented by Legal Aid due to his own lapse in not seeking the assistance of Legal Aid in time. It appears from the docket that the Petitioner has informed this Court that he had lodged an application for assistance from Legal Aid only on 9th July 2020, more than two and half years after the Court of Appeal pronounced its Ruling.
[18] As already noted, the Petitioner has filed his Notice of Appeal on 14th June 2018. In terms of Rule 5 (a) of the Supreme Court Rules, an application seeking leave of this Court from a final judgment of the Court of Appeal must “be lodged at the Court registry within 42 days of the date of the decision from which special leave to appeal is sought.” Since the Court of Appeal Ruling was made on 26th January 2018, the application for leave to appeal should have been lodged on or before 10th March 2018.
[19] The Petitioner’s Notice of Appeal was received in the Registry of this Court on 14th June 2018, which is approximately 3 months after the expiry of the period of time permitted for applying for leave to appeal, and cannot lightly be excused even from an incarcerated prisoner. Mr. Burney who appears for the State, has in paragraph 5 of his written submissions of 9th December 2019 pointed out that the Petitioner has failed to provide any satisfactory explanation for this significant delay, and further submitted that such a delay in excess of the period allowed for seeking leave to appeal is substantial and unexplained delay.
Whether there is a ground of merit justifying the appellate court’s consideration
[20] The facts relating to this case may be very briefly stated. The Petitioner at the time of the incident was living with his parents in his father's house. The Petitioner, Sailosi Rokotuiwailevu (Sailosi) had got married 3 years prior to the incident, and his wife and children were also living with him. His wife’s cousin Kini Simere (Kini) was also living with them at that time as it was school break.
[21] At the trial, several witnesses including the Petitioner’s father Peni Navuku (Peni) testified. Peni stated in his evidence that he was having lunch with his wife and daughter when Sailosi returned home for lunch. After some casual conversation, Peni told Sailosi that he was going to Nativi to see his elder daughter with his wife and they were taking Kini with them. Sailosi asked Peni to let Kini stay back so he could go fishing with her. Then there was a heated argument between Sailosi and Peni and Sailosi asked Peni whether he is the boss of everyone in the house, for which Peni replied in the affirmative. Peni stated in evidence that Sailosi then went into the kitchen and took a knife with which he stuck on the head of Peni. Sailosi then stuck again on the back of Peni, who collapsed unconscious. The evidence of Peni is corroborated by the testimony of his daughter Merewalesi Moi.
[22] Sailosi also testified in the case and had a slightly different version of what happened. He stated in evidence that he was not aware that they were going to Nativi that day taking Kini with them, and he told Peni if Kini could stay for the night he could go fishing and she could take some fish with her to Nativi. Peni said that if Sailosi cared about his cousin Kini, he should pack his bags and leave. He then told Peni that since everyone knew that it is his house, “I might chop someone”. Then he went to the kitchen and got the knife, entered the house and stuck Peni, “I stuck his head and back.” Sailosi said that he got angry because he did not know that Kini was also going with them. He said his relationship with his father was not good and since he was a child his father always been angry with him and scolded him.
[23] The Petitioner Sailosi Rokotuiwailevu’s caution interview was produced in evidence. He was questioned in regard to an incident when on 24th April 2015 “between 12.00 and 12.30 pm at Vitawa Village, Rakiraki, you struck your father Peni Navuku with a cane knife causing grievous harm to the said Peni Navuku.” The interview was conducted by Corporal Isoa Delaivatanawa and Corporal Sailosi Bawaqa was also present as witnessing officer and recorded the same in question-and-answer format. Both officers testified at the trial, and the relevant part of the caution interview record reads as follows;-
“Q50. Then what did you do?
ANS. I grabbed the cane knife (from the kitchen) and went back inside the house.
Q51. What is your intention when you grabbed the cane knife?
ANS. I decided to kill him inside the house because he always did this kind of things to me and my family.
Q53. Have a look at this cane knife (knife shown to him), is this the same cane knife you grabbed from your kitchen?
ANS. Yes.”
[24] The doctor who examined Peni Navuku in hospital, Dr. Shradha Shilton, also testified in court and marked the medical report in evidence. In the said report it was noted that the “patient had a cut on the head which was 10 cm in slanting manner with a chip of bone of scalp” and “a linear cut on the back on left side which was around 15 cm with deepest incision of 1.5 cm.” Dr. Shilton testified that when she examined him, the patient was in lots of pain, and he had life threatening injuries which could have been fatal and they had to stop the bleeding and manage the patient. The patient was given intravenous fluid and tetanus injection and there was no need to take X-ray as the priority was to stop the bleeding.
[25] At the conclusion of a trial lasting five consecutive days from 5th to 9th October 2015 in the High Court at Lautoka, the appellant was convicted as charged for attempted murder contrary to sections 44(1) and 227 of the Crimes Act of 2009 and sentenced to life imprisonment with a minimum term of 8 years.
[26] By his handwritten application received in the Registry of the Court of Appeal on 3rd December 2015 [pages 29 to 30 of the Supreme Court Record], the Petitioner applied for leave to appeal against his conviction and sentence. He set out seven grounds of appeal against conviction and three grounds of appeal against sentence. This application was filed in person from prison, but by the time the court registry received the notice, the appeal was late by three weeks.
[27] However, later on Legal Aid took over the case and filed an “Amended Notice of Appeal Against Conviction” on 26th July 2017 [pages 12 to 14 of the Supreme Court Record] on several grounds of appeal against conviction. It was based on this application that the single judge of the Court of Appeal made his impugned Ruling of 26th January 2018.
[28] It is noteworthy that at the hearing before the single judge of the Court of Appeal, the Petitioner was represented by Legal Aid Counsel, and the State did not have objection to enlargement of time despite the three weeks’ delay in filing the application for leave to appeal.
[29] In paragraph 3 of the Ruling of the single judge of the Court of Appeal dated 26th January 2018, it is specifically noted that through initially six grounds of appeal were advanced, “at the hearing, counsel for the appellant abandoned five of them.” The single judge dealt with the only ground pursued by the learned Counsel for the Appellant, which was as follows:-
“(i) The learned Trial Judge erred in law and in fact when he misdirected the assessors by stating in paragraph (sic) 38 and 39 [of the Summing Up] that they must acquit the Appellant from the charge when the assessors under the law could only give opinions as judges of fact”
[30] In the impugned ruling, having considered the facts and circumstances that led to the unfortunate incident that resulted in serious life-threatening injury to the Petitioner’s father and the conviction of the Petitioner for attempted murder, the learned single Judge dealt with the said ground of appeal in paragraph 11 of his Ruling as follows:-
“Counsel for the appellant submits that the learned trial judge misconstrued the role of the assessors when he told them “you must then acquit the accused from this charge”. Counsel submits that the assessors offer opinions, but the trial judge convicts or acquits. I accept that the assessors give opinions but the verdict is of the trial judge. However, the direction “you must then acquit’ did not have the effect of confusing the functions of the assessors and the trial judge. In paragraph [6] of the summing up the learned trial judge clearly told the assessors that they were required to give opinions and that their opinions were not binding on him. When the summing up read as a whole, there is no error shown as alleged in the ground of appeal.”(emphasis added)
[31] In dismissing the appeal under section 35(2) of the Court of Appeal Act of 1949, the learned single Judge in paragraph 12 of his Ruling has given the following justification:
“I have further considered whether this appeal is frivolous. The main issue at the trial was whether there was proof beyond a reasonable doubt that the appellant struck the victim with the cane knife with an intention kill him. Both the assessors and the trial judge found that the appellant had the prerequisite intention for attempted murder. The use of the cane knife, the ferocity of the attack, and the seriousness of the head wound and the appellant’s admission of his intention provided proof that the appellant had an intention to kill. The evidence was overwhelming and the summing up is impeccable. I am satisfied that this appeal has no prospect of success. The appeal is frivolous.”(emphasis added)
[32] I have given careful thought to every one of the 14 grounds against conviction relied upon by the Petitioner set out in his “Notice of Appeal and Application for Amended Grounds Against Conviction and Sentence to the Supreme Court” received in the Registry of this Court on 14th June 2018 and his written Submissions dated 24th January 2020 received in the Registry of this Court on 5th February 2020 despite the fact that none of the 14 grounds relied upon by the Petitioner were taken up in the Court of Appeal. I am conscious that in order to grant enlargement of time, the Petitioner must satisfy the stringent test applicable for the grant of enlargement of time, which is much more onerous than the criteria for granting leave to appeal set out in section 7(2) of the Supreme Court Act.
[33] In my opinion, grounds (1) to (5) and (7) to (14) to say the least do not merit any detailed consideration by this Court. For instance, ground (1) alleging that the trial judge failed to direct the assessors to determine whether they considered the caution statement to be true and reliable cannot be sustained since the trial judge has in paragraph 36 of the summing up directed the assessors that “in respect of the caution interview, you can act upon it, if you are sure that it is true. If you are not sure of the confession is true, then you should not place any reliance upon it.” Ground (2) alleging that the trial judge failed to direct them that such caution statements is the only evidence [or substantially the only evidence] in support of the fault element and without that evidence the element could not be proved beyond reasonable doubt, when the Petitioner himself has admitted at the trial as set out in paragraph [22] of this judgment that he told his father that every one knew that it is his house, “I might chop someone” before going to the kitchen to take the knife and strike his father blows that had caused, according to the doctor, life threatening injuries. For the same reasons ground (3), (4) and (5) all relating to the caution statement are also without merit given that prior to the commencement of the trial, the Petitioner then represented by Legal Aid Counsel, had indicated to the trial judge on 1st October 2015 [Supreme Court Record page 131] that he did not challenge the caution interview. For the same reasons ground (7) to the effect that the Petitioner was not properly and adequately instructed of his rights while in police custody before being called upon to answer any questions is without any merit.
[34] Ground (8) to the effect that the Petitioner “was not informed by the charging officer while charging him for attempted murder, a violation of the Constitution” is not too clearly worded, but I take it that what he means is that he was cautioned interviewed for “causing grievous harm” (vide parge 98 of the Supreme Court Record) but charged for Attempted Murder, of which fact he was given adequate notice. It was certainly within the powers of the State to indict an offender appropriately, and this ground is without merit. So is ground (9) relied on by the Petitioner to the effect that the learned trial judge erred in law and in fact in not analysing the evidence before convicting Petitioner for attempted murder. Similarly, ground (10) alleging that the trial judge erred in law and in fact in not considering an alternative lesser offence such as causing grievous bodily harm is without merit in all the circumstances of this case.
[35] I have examined ground (11) that the Petitioner’s answers during caution interview were given while his mind was still filled with anger and the interviewing officer erred in not allowing a time for him to cool down before questioning him, does not seem to be borne out by the interview record, that was not challenged by him, which shows that the interview commenced at 5 pm at least 4 hours after the incident, and it was suspended at 6.20 pm after recording preliminary information and recommenced the next day at 7.20 am when his confession was recorded. Two officers who participated at the interview had also given evidence at the trial.
[36] In my view ground (12) to the effect that the trial judge erred in law and in fact in not directing his mind and the assessors on the Petitioner’s state of mind and the defence of insanity, ground (13) that the trial judge failed to sufficiently and adequately direct the assessors on the issue of malice aforethought in conjunction with the issue of standard of proof, and ground (14) that the Learned Trial Judge erred in law and in fact in not directing himself that the victim is already stable because the injury is not life threating, are far fetched and devoid of merit.
[37] I would now return to ground (6) which was to the effect that he was not fully well represented by the counsel and in one particular when he was not aware that his Legal Aid Counsel abandoned 5 grounds of appeal from the 6 grounds contained in the Amended Notice of Appeal against conviction lodged in the Court of Appeal dated 26th July 2017. This appears from the impugned Ruling of the single judge of the Court of Appeal that the Legal Aid Counsel for the Petitioner, having abandoned 5 of the grounds filed on the Petitioner’s behalf, pursued only one, which the single judge of the Court of Appeal considered frivolous. The one that was pursued happened to be ground (2) of the said Amended Notice of Appeal against conviction.
[38] In view of the submission of Respondent’s Counsel Mr. Burney in paragraph 26 of the Respondent’s Written Submissions of 9th December 2019 that since the Petitioner is unrepresented and cannot have been aware of the guidance given recently by the Court of Appeal in Chand v State [2019] FJCA 254; AAU0078.2013 (28 November 2019) this Court should consider whether the grounds abandoned by the Legal Aid Counsel are potentially arguable and if so advise the petitioner on the requirement to waive privilege and follow the procedure outlined in the Chand v State should he wish to pursue this ground to avoid a substantial and grave injustice arising from procedural unfairness.
[39] Learned Legal Aid Counsel who appeared for the Petitioner in the hearing before the single Judge of the Court of Appeal had abandoned grounds (1), (3), (4), (5) and (6) of the Amended Notice of Appeal against conviction lodged in the Court of Appeal dated 26th July 2017. Ground (1) was to the effect that the learned trial judge confused the assessors at paragraph 38 of the summing-up by not specifically stating the constituent elements of the offence and that if they had accepted that the Petitioner did not have the intention to kill the complainant at the material time then the prosecution fails to prove their case beyond reasonable doubt. However, I note that though in paragraph 38 of the summing-up the elements of the offence of Attempted Murder has not been discussed, the learned trial judge had adverted to the elements of offence adequately in paragraphs 14 to 18 of his summing-up, and this ground has absolutely no merit.
[40] Ground (3) concerned the Petitioner being caution interviewed for the offence of intentionally causing grievous harm when he was later indicted for attempted murder. This aspect of the matter was covered by ground (8) raised by the Petitioner in his application to this Court and has been dealt with in paragraph 34 of this judgment. Ground (4) is connected to the extent that it seeks to fault the trial judge for allowing the caution interview statement to be tendered in evidence as part of the evidence of the State in case of attempted murder. It appears from the record of the caution interview at page 98 of the Supreme Corut Record that the Petitioner was interviewed in relation to the incident where he “struck your father namely Peni Navuku with a cane knife causing grievous harm to the said Peni Navuku”, but it was by no means an assurance to the Petitioner that he would be charged for the lesser offence of causing grievous harm. It was open for the State to indict him for attempted murder if he had the intention to kill.
[41] What was urged in the Amended Notice of Appeal against conviction lodged in the Court of Appeal dated 26th July 2017 as ground (5) is that the learned trial judge had erred in law and in fact when he failed to consider that the State had failed to prove that the Petitioner had the intention to kill the complainant. There was overwhelming evidence discussed in paragraphs 21 to 24 of this judgment that established the Petitioner’s intention to kill. The use of the cane knife, the ferocity of the attack, and the seriousness of the head wound and the Petitioner’s admission of his intention provided proof that the appellant had an intention to kill, and there is no merit in this ground as well.
[42] Ground (6) that the Legal Aid Counsel abandoned is that the trial judge had erred in law and in fact when he failed to consider that the Petitioner under pressured circumstances and with the state of shock was cautioned interviewed few hours after the incident. This aspect of the matter has been considered already in paragraph 35 of this judgment in relation to a similar ground raised before this Court as ground (11) and has absolutely no merit.
[43] I am clearly of the opinion that irrespective of the instructions that may have been given by the Petitioner to the particular Legal Aid counsel who represented the Petitioner before the single judge of the Court of Appeal, none of the grounds abandoned by the Legal Aid Counsel were potentially arguable, and this is not an appropriate case for this Court to advise the petitioner on the requirement to waive privilege and follow the procedure outlined in the Chand v State should he wish to pursue this ground to avoid a substantial and grave injustice arising from procedural unfairness.
Is there a ground of appeal that will probably succeed?
[44] Another factor to be considered for the grant of enlargement of time where there has been substantial delay as in this case, is whether nonetheless is there a ground of appeal that will probably succeed. The answer to this question is clearly in the negative as none of the grounds urged by the Petitioner before this Court or before the Court of Appeal, including those abandoned by the Legal Aid Counsel, merited the grant of leave to appeal. None of them therefore satisfy the more stringent criteria for the enlargement of time as no miscarriage of justice has occurred in this case.
If time is enlarged, will the Respondent be unfairly prejudiced?
[45] The last matter for consideration is whether if time is enlarged will the Respondent by unfairly be prejudiced. I answer this question in the affirmative for the reasons already set out in this judgment.
Grounds of Appeal against the sentence
[46] The Petitioner has also included in his “Notice of Appeal and Application for Amended Grounds Against Conviction and Sentence to the Supreme Court” several grounds of appeal against his sentence. They do not arise for consideration since the application before the single judge of the Court of Appeal was for leave to appeal against only the conviction.
Conclusions
[47] For the foregoing reasons, the Petitioner is refused enlargement of time to seek leave to appeal from this Court and leave to appeal is also refused. The “Notice of Appeal and Application for Amended Grounds Against Conviction and Sentence to the Supreme Court” received in the Registry of this Court on 14th June 2018 is dismissed.
Keith, J:
[48] I have read in draft the judgment of Marsoof J. I agree with him that the application for an extension of time for lodging the petition for leave to appeal to the Supreme Court should be refused for the reasons which he gives. I add a few words of my own in the light of the invitation to us from Mr Burney for the State to resolve an apparent difference in approach between some judges to the application of section 35(2) of the Court of Appeal Act 1949.
[49] Section 35(2) was added to the Act in 1998. It provides:
“If on the filing of a notice of appeal or of an application for leave to appeal [to the Court of Appeal], a judge of the Court [of Appeal] determines that the appeal is vexatious or frivolous or is bound to fail because there is no right of appeal or no right to seek leave to appeal, the judge may dismiss the appeal.”
It was pursuant to that provision that Goundar J dismissed the appeal in this case. The power is a useful addition to the Court of Appeal’s armoury. It enables the Court to dispose summarily of appeals which for one reason or another have no realistic chance of success.
[50] There is a significant practical difference between the refusal of an application for leave to appeal and the summary dismissal of the appeal under section 35(2). If the appeal is summarily dismissed under section 35(2), the appellant cannot renew his application for leave to appeal to the Full Court of the Court of Appeal: see Tiritiri v The State [2014] FJSC 15 at para 21. The appellant’s only remedy is to apply to the Supreme Court for special leave to appeal to the Supreme Court: see Baleinabodua v The State [2015] FJSC 16 at para 31. On the other hand, if an application for leave to appeal is simply refused by the single judge, it may be renewed to the Full Court of the Court of Appeal: see Naqau v The State [2015] FJSC 11 at para 5.
[51] One of the advantages, therefore, of giving judges the power to dismiss an appeal summarily was that it reduced the pressure on an already overworked Court of Appeal. The Court of Appeal would no longer be troubled by renewed applications for leave to appeal which were unmeritorious. Judges understandably exercised their power under section 35(2) to dismiss an appeal not infrequently. But an unintended consequence was the rise in petitions for leave to appeal to the Supreme Court. The Supreme Court was burdened with such petitions, even though the appeals had been regarded as without merit, because that was the only route available for an appellant to challenge the single judge’s view.
[52] It is obviously inappropriate for the Supreme Court – whose function in criminal appeals is to determine questions of great importance or to remedy a grave miscarriage of justice – to be burdened with petitions, often prepared by prisoners without the benefit of professional advice, for leave to appeal in cases which have already been judged to be unmeritorious. The consequence of that has been that single judges of the Court of Appeal have tended to use their power summarily to dismiss an appeal very sparingly. They are entitled to do that, even though the statutory criteria for summarily dismissing the appeal under section 35(2) have been satisfied. That is because section 35(2) confers a power to dismiss summarily, not a duty to do so, if the conditions for the exercise of the power have been met. That is the effect of the word “may” in section 35(2).
[53] That brings me to the topic on which different views have been expressed – the criteria for dismissing an appeal under section 35(2). The summary power to dismiss an appeal under section 35(2) was said by Marsoof J in Baleinabodua at para 33 to be exercisable in one situation only: when it is the absence of a right of appeal or a right to seek leave to appeal which causes the notice of appeal or the application for leave to appeal to be found to be vexatious, frivolous or bound to fail. Ekanayake J agreed with him, but Calanchini J only agreed that in the circumstances of the case the appeal should be remitted to the Court of Appeal to be determined pursuant to section 35(3). Indeed, Calanchini J had previously taken a different view of the ambit of section 35(2) in Tiritiri at para 20. The effect of what he said is that the summary power to dismiss an appeal under section 35(2) is exercisable in three situations: (i) where the appeal is frivolous; (ii) where the appeal is vexatious; and (iii) where the appeal is bound to fail because there is no right of appeal or no right to seek leave to appeal. Chandra and Guneratne JJ agreed with him.
[54] With great respect to the majority of the Court in Baleinabodua, I agree with Calanchini J. An appeal is frivolous if it is so lacking in merit that it has no realistic chance of success. An appeal is vexatious if it is brought for improper ulterior motives or to vex the State in some unjustifiable way or to undermine the administration of criminal justice. There would be no point in permitting appeals to be dismissed summarily on the grounds that the appeal was frivolous or vexatious if the only ground for permitting appeals to be dismissed summarily was if it was bound to fail because there was no right of appeal or right to seek leave to appeal.
[55] Applying that to the present case, the petitioner’s application for leave to appeal to the Court of Appeal, for the compelling reasons given by Marsoof J, was so lacking in merit that it had no realistic prospect of success. It was therefore frivolous, and Goundar J was entitled to exercise his undoubted power to dismiss the appeal summarily under section 35(2), even though the State was only asking for his application for leave to appeal to be refused.
[56] As Marsoof J has said, there were a number of grounds in the notice of appeal to the Court of Appeal which Goundar J did not address. He did not address them because they were abandoned by the petitioner’s counsel. The petitioner complains that his counsel did not have his instructions to abandon those grounds, but I have not thought it necessary to adjourn the appeal to see what his counsel has to say about that: as Marsoof J has pointed out, none of those grounds of appeal had any chance of success.
[57] Finally, there are three other complaints which the petitioner has made about his counsel in his written submissions to the Supreme Court, though he told us that he no longer criticizes his counsel’s cross-examination of the State’s witnesses. The two complaints which he continues to maintain are (i) that she did not advance the defence of provocation, and (ii) that she did not call his mother as a witness to testify that he did not intend to kill his father. Again, I have not thought it necessary for his counsel to be asked to comment on those complaints as they get him nowhere. First, although provocation can reduce the offence of murder to manslaughter, it is not a defence to a charge of attempted murder. It is only relevant to sentence. Secondly, if his mother had been asked whether she thought that her son had intended to kill his father, the judge would have ruled the question inadmissible on the basis that it would have amounted to asking her for her opinion on a topic to which she could not know the answer.
Dep, J:
[58] I have read in draft the Judgment of Marsoof J and I agree with his reasoning, conclusions and orders proposed.
The Orders of the Court are:
..................................................
Hon. Justice Saleem Marsoof
Judge of the Supreme Court
.......................................
Hon. Mr. Justice Brian Keith
Judge of the Supreme Court
...................................................
Hon. Mr. Justice Priyasath Gerard Dep
Judge of the Supreme Court
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