Dutt v State [2022] FJSC 3; CAV 18 of 2020 (13 January 2022)

IN THE SUPREME COURT OF FIJI
CRIMINAL JURISDICTION

Criminal Appeal No. CAV 18 of 2020
AAU 79 of 2017
HAC 243 of 2011

BETWEEN:

DESHWAR KISHORE DUTT
Applicant

AND:

THE STATE

Respondent

CORAM:

Hon. Mr. Justice Kamal Kumar,

Chief Justice and President of Supreme Court

COUNSEL:

Applicant in Person

Ms S. Tivao for the Respondent

Hearing:

5 October 2021

Judgment:

13 January 2022

RULING
(REVIEW – BAIL PENDING APPEAL)

1.0 Introduction

1.1 On 30 December 2020, Applicant filed Application for Review of Honourable Justice Prematilaka’s ruling delivered on 30 June 2020, and for an Order that Applicant be granted bail pending appeal on strictest terms and conditions as this Court may determine (“the Application”).

1.2 The Applicant relied on his Affidavit sworn on 9 November 2020 and filed on 30 December 2020 (hereinafter referred to as “the Applicant’s Affidavit”).

1.3 The Application was called on 10 December 2020 when parties were directed to file and serve Affidavit/Submission and the Application was adjourned to 26 January 2021, for hearing.

1.4 On 26 January 2021 Respondent was granted further time to file Appeal in Opposition and parties were directed to file Submissions with the Application being adjourned to 27^th April, 2021 for hearing.

1.5 The Application was next called on 20^th July 2021 when it was adjourned to 11^th August, 2021 for hearing which could not proceed on that date.

1.6 The Application was heard on 5^th October 2021 and adjourned for Ruling on Notice.

1.7 On 8 January 2021, Respondent filed Affidavit in Opposition of Melania Saukuru the Police Liaison Officer (hereinafter referred to as “the Respondent’s Affidavit”).

1.8 Both parties filed Submissions as directed by the Court.

2.0 Background Facts

2.1 On or about 22 August 2014, the Applicant was charged with two counts of aggravated robbery contrary to section 311(1) of the Crimes Act 2009 with other accuseds.

2.2 Details of the charge as appears from Court of Appeal Ruling is as follows:-

“FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311(1)(a) of the Crimes Act No. 44 of 2009.

Particulars of Offence

DESHWAR KISHORE DUTT with others on the 20^th day of July 2014 at Suva in the Central Division robbed KISHORE KUMAR and stole cash totaling $108,000, HP Brand Laptop valued at $1,800.00, assorted jewelleries valued at $5,000.00, Lumix brand camera valued at $600.00, Fuji Film brand camera valued at $300.00, Phone in box valued at $449.00, a Nokia brand mobile phone valued at $49.00, a Casio brand wrist watch valued at $100.00, a Binoculars valued at $400.00, a rice cooker valued at $100.00, a sandwich maker valued at $50.00, a Toaster valued at $50.00, assorted clothes valued at $200.00, and vehicle registration number FJ102 valued at $45,000.00 all to the total value of $162,098.00 the properties of the said KISHORE KUMAR.

SECOND COUNT

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311(1)(a) of the Crimes Act No. 44 of 2009.

Particulars of Offence

DESHWAR KISHORE DUTT with others on the 20^th day of July 2014 at Suva in the Central Division robbed DHARMENDRA RAJ and stole cash totaling $3,600.00 and assorted clothes valued at $165.00 all to the total value of $3,765.00 the properties of the said DHARMENDRA RAJ.”

2.3 After the trial in High Court, the assessors expressed a unanimous opinion that the Applicant was guilty as charged which opinion was accepted by the Trial Judge who found the Applicant guilty.

2.4 On 28 April 2017, the Trial Judge sentenced the Applicant in absentia to fifteen (15) years imprisonment with a non-parole period of fourteen (14) years.

2.5 The reason for passing the sentence in absentia was that the Applicant had escaped from Police custody prior to passing of the Sentence.

2.6 On 26 May 2017 and 20 July 2017, the Applicant filed Grounds of Appeal and Amended Grounds of Appeal with twenty (20) grounds against the conviction and one (1) ground against the Sentence passed.

2.7 On 4 February 2020, the Applicant filed Application for Bail Pending Appeal in Court of Appeal.

2.8 During the course of hearing for Application for Special Leave to Appeal, the Applicant informed Court of Appeal that he would not pursue grounds 5, 9, 10 and 12 to 15.

2.9 Single Judge of Court of Appeal granted the Applicant Leave to Appeal against the conviction and refused Leave to Appeal against Sentence.

2.10 Court of Appeal refused the Applicant’s Application for Bail Pending Appeal.

3.0 Application for Review

3.1 Section 30 of Bail Act provides as follows:-

“30 (1) A Magistrate may review any decision made by a police officer in relation to bail.

(2) A Magistrate may review a decision made by another Magistrate, including a reviewing Magistrate, in relation to bail.

(3) The High Court may review any decision made by a Magistrate or by a police officer in relation to bail.

(4) The Court of Appeal may review any decision made by the High Court in relation to bail.

(5) The Supreme Court may review any decision of a Magistrate, the High Court or the Court of Appeal, in relation to bail.

(6) A court may not review a decision under this Part if the court is prohibited from making a decision in relation to the grant of bail by any other written law.

(7) A court which has power to review a bail determination, or to hear a fresh application under section 14(1), may, if not satisfied that there are special facts or circumstances that justify a review, or the making of a fresh application, refuse to hear the review or application.

(8) The power to review a decision under this Part in relation to an accused person may be exercised only at the request of –

(a) the accused person;
(b) the police officer who instituted the proceedings for the offence of which the person is accused;
(c) the Attorney-General;
(d) the Director of Public Prosecutions; or
(e) the victim of the offence.

(9) The power to review a decision under this Part includes the power to confirm, reverse or vary the decision.

(10) The review must be by way of a rehearing, and evidence or information given or obtained on the making of the decision may be given or obtained on review.”

3.2 In Kumar v State Criminal Appeal No. CAV 20 of 2020, this Court after analyzing the case authorities in relation to review of bail application by higher Courts made the following comments:-

(i) Higher Court’s jurisdiction to hear review application for bail from Lower Court is independent of the Applicant’s right to appeal;

(ii) A person’s right to review can be exercised by the person irrespective of whether he/she appeals the decision of the Lower Court.

3.3 It must be noted that under section 30(7) of the Bail Act, the Higher Court has discretion to refuse to hear review application if it is satisfied that there is no special facts or circumstances that justify a review.

3.4 This Court after receiving the Application for Review and supporting Affidavit chose to hear the Applicant in the interest of justice.

3.5 Both parties conceded that this Court has jurisdiction to hear the Application.

3.6 It must be noted that:-

(i) There is a presumption of bail in favour of the accused persons unless it is not in the interest of justice to grant bail. S.3(1) – Bail Act.

(ii) The presumption is displaced where the person has been convicted and appealed against the conviction. S.3(4)(b) – Bail Act.

(iii) The factors to take into account when determining bail pending trial and bail pending appeal are quite different.

3.7 Section 17(3) of the Bail Act provides as follows:-

“17(3) When a court is considering the granting of bail to a person who has appealed against conviction or sentence the court must take into account –

(a) the likelihood of success in the appeal;

(b) the likely time before the appeal hearing;

(c) the proportion of the original sentence which will

have been served by the applicant when the

appeal is heard.”

3.8 It is well established that Courts have discretion to determine whether or not to grant bail pending appeal. Zhong v State AAU44 of 2013 (15 July 2014).

3.9 The law and case authorities dealing with bail pending appeal was cited in Waqaninavatu v State [2020] FJCA 115; AAU0057 of 2018 (27 July 2020).

3.10 Principle that emerge from the case authorities cited in Waqaninavatu are:-

(i) Factors listed under s.17(3) are mandatory and must be taken into consideration by the Courts;

(ii) In addition to the factors listed, Courts in exercise of discretion may consider any exceptional circumstances.

3.11 At paragraphs 16 to 17 of Waqanivatu decision it is stated as follows:-

“[16] Therefore, the legal position appears to be that the appellant has the burden of satisfying the appellate court firstly of the existence of matters set out under section 17(3) of the Bail Act and thereafter, in addition the existence of exceptional circumstances. A very high likelihood of success of the appeal would be deemed to satisfy the requirement of exceptional circumstances. However, an appellant can even rely only on ‘exceptional circumstances’ including extremely adverse personal circumstances when he cannot satisfy court of the presence of matters under section 17(3) of the Bail Act.

[17] Out of the three factors listed under section 17(3) of the Bail Act ‘likelihood of success’ would be considered first and if the appeal has a ‘very high likelihood of success’ then the other two matters in section 17(3) need to be considered, for otherwise they have no practical purpose or result.”

3.12 With all due respect this Court does not accept that “very likelihood of success of the appeal” should be taken into consideration in determining exceptional circumstances for the following reasons:-

(i) By using the word “very” before the words “likelihood of success” would be to amend s.17(3)(a) of Bail Act which the Parliament chose not to do when enacting that provision.

(ii) To determine whether there is “very likelihood of success of the appeal” will lead into the Single Judge determining or very close to determining the grounds of appeal and stepping or very close to stepping in the shoes of the Full Bench.

3.13 Exceptional circumstances that Courts will need to take into account are those that arise for instance from the Applicant’s personal circumstances such as “extreme age and frailty or serious medical condition”. Seniloli & Ors. v State AAU 41 of 2004 (23 August 2004).

3.14 Exceptional circumstances will come into play in the application for bail pending appeal if the factors listed in s.17(3) goes against granting of bail pending appeal.

4.0 Likelihood of Success – Appeal filed in Court of Appeal

Grounds 1 and 6

4.1 At paragraphs 20 and 21 of Court of Appeal decision it is stated as follows:-

“[20] The learned trial judge had rejected the allegation of assault because i) the medical report (Exhibit 1) was hearsay as the appellant did not call the doctor, (ii) DW2’s exuberant demeanour while giving evidence of the appellant’s injuries, (iii) she too did not provide admissible medical report despite her eyewitness account and the photographs (Exhibit 2) of the appellant’s injuries and (iv) her close relationship to the appellant. Thus, the learned trial judge had concluded that there was no evidence of injuries suffered by the appellant while in police custody and accepted evidence of PW1 and PW2 that the appellant had not been assaulted and the defence evidence was not credible.

[21] Without voir dire proceedings and clear copies of all exhibits, I cannot examine the merits of the appellant’s allegation of assault affecting the voluntariness of his cautioned interview and cannot determine the effect of those alleged injuries at the hands of the police on the success of the appellant’s appeal. However, given the above reasoning by the learned trial judge this complaint should be carefully examined by the full court to determine its merits on the admissibility of the cautioned interview.”

4.2 The Appellant alleges that the Trial Judge rejected the evidence of Applicant’s witness during voir dire and the Trial Judge failed to properly evaluate PW2’s sworn evidence during voir dire.

4.3 This Court had the advantage of the Copy Record in respect to High Court Trial.

4.4 Trial Judges have the advantage of assessing the evidence to establish facts based on the demeanour of witness produced in Court.

4.5 Appellate Courts would interfere with finding of facts by the Trial Judge in very exceptional circumstances.

4.6 Trial Judge at paragraph 10 of the Voir Dire Ruling stated as follows:

“Considering the evidence as a whole, I find the prosecution’s evidence credible. I find the defence’s evidence not credible. I accept the prosecution’s version of events that the accused gave his caution interview statements voluntarily and the same are declared as admissible evidence, and it may be used in the trial proper as evidence. However, its acceptance or otherwise, will be a matter for the assessors.”

4.7 This Court finds that the Applicant failed to satisfy the Court that there is likelihood of success in respect to grounds 1 and 6.

Grounds 2, 3, 4 and 20

4.8 Applicant’s allegation is that the Trial Judge failed to consider Valelevu Police Station diary, violation of his rights during caution interview, rejecting Applicant’s version of events and accepting Prosecution version.

4.9 The Trial Judge at paragraph 5 of his Voir Dire Ruling stated as follows:-

“I have carefully considered the evidence of the prosecution and defence witnesses.”

4.10 Based on what is stated by the Trial Judge it appears that the Trial Judge considered all evidence produced during voir dire hearing. Hence if Valelevu Police Station Diary note was produced in evidence the Trial Judge would have considered it.

4.11 Based on what is stated above this Court is of the view that grounds 2, 3, 4 and 20 have no likelihood of success.

Grounds 7, and 17

4.12 The Applicant alleges that the Trial Judge during summing up failed to direct the assessors on confession, Applicant’s and Respondent’s case.

4.13 At paragraph 35 of the Summing Up the Trial Judge stated as follows:-

“35. You are to consider the above witnesses’ evidence together, including the parties’ exhibits. You are to consider them carefully and compare them. If I didn’t emphasise on, or did not cover some evidence which you consider important, please do consider them. Upon deciding on the credibility of each witness, you are entitled to accept the whole of their evidence or reject the same. You are also entitled to accept some that you consider credible, and reject some that you consider not to be credible. You are the judge of fact.”

4.14 At paragraphs 14 to 19 of the Summing Up the Trial Judge summarized the Prosecution’s case and the Applicant’s case.

4.15 This Court has doubts on the likelihood of success of these grounds.

Ground 8

4.16 Applicant alleges that the Trial Judge wrongly informed the assessors that the Applicant did not complain to the Magistrate of any police assault in this case as appears at paragraph 29 of Summing Up.

4.17 Minutes off the Magistrates Court recorded on 22 August 2014 evidence that the Applicant did inform the Magistrate that he was assaulted by the Police.

4.18 If the Applicant does establish this ground, the question that the Full Court will need to determine is whether this would have any impact on success of the whole appeal.

Ground 16

4.19 Applicant alleges that the charges were defective.

4.20 This Court is in agreement with the Single Judge of Court of Appeal in that “the appellant knew exactly the charges faced by him and he seems to have been defended well in High Court.”

4.21 This Court has doubt on the likelihood of success of this ground.

Ground 17

4.22 This ground also touches on the voluntariness of the confession made during caution interview.

4.23 This Court has already dealt with similar grounds and as such there is no need to address it further.

Ground 18

4.24 Applicant says that the Trial Judge took irrelevant factors into account and failed to take relevant factors into account.

4.25 Apart from the Medical Report and Applicant’s complaint of assault to the Magistrate, the Applicant has not stated which other irrelevant factors Trial Judge took into account or which relevant factors were omitted.

Ground 19

4.26 Applicant alleges that the Trial Judge failed to direct and/or give guidance to assessors of the intermediate position of doubt and the way they should treat the evidence in such circumstances.

4.27 The Trial Judge at paragraphs 4, 5, 6, 31 and 35 of the Summing Up stated as follows:

“4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused’s guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt so that you are not sure about his guilt, then you must express an opinion, that he is not guilty.

6. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victims. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

31. If you accept the accused’s above confession, then you will have to find the accused guilty as charged. If you don’t accept the same, then you will have to find the accused not guilty as charged. It is a matter entirely for you.

35. You are to consider the above witnesses’ evidence together, including the parties’ exhibits. You are to consider them carefully and compare them. If I didn’t emphasise on, or did not cover some evidence which you consider important, please do consider them. Upon deciding on the credibility of each witness, you are entitled to accept the whole of their evidence or reject the same. You are also entitled to accept some that you consider credible, and reject some that you consider not to be credible. You are the judge of fact.”

4.28 Based on what is stated by the Trial Judge this Court dobuts if this ground has any likelihood of success.

Ground 21

4.29 Applicant says that sentence passed is harsh and excessive and not proportionate to his alleged involvement.

4.30 The Trial Judge selected the term of 11 years as starting point which term was within the tariff set in Wise v State [ 2015 ] CAV 4 of 2015 (24 April 2015).

4.31 The Trial Judge then took aggravating factors into account in increasing the sentence to 15 years.

4.32 The Trial Judge found the time spent in custody as only mitigating factor.

4.33 This Court finds that, there is no likelihood of success in respect to sentence passed by the Trial Judge.

5.0 Likely time before the appeal hearing

5.1 Applicant’s appeal is set down for hearing on 9^th February 2022 and as such this factor does not help the Applicant.

6.0 Proportionate of original sentence which will be served when the appeal is heard

6.1 Sentence was passed on 28 April 2017.

6.2 Applicant would have served less than one third of his sentence until 9^th February 2022 and as such this factor does not help the Applicant.

7.0 Orders

7.1 This Court makes the following Orders:-

(i) Applicant’s Application for Bail Pending Appeal filed on 12 November 2020 is dismissed and struck out.
(ii) Each party do bear their own costs.

Hon. Justice Kamal Kumar

President, Supreme Court

Solicitors

Applicant in Person

Office of the Director of Public Prosecutions for Respondent