Samut v State [2022] FJSC 4; CAV 0016 of 2020 (13 January 2022)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. CAV 0016 of 2020
[Court of Appeal No. AAU 0100 of 2014]
[High Court Action No. HAC 41 of 2013]

BETWEEN:

NIZAAR MUNIR SAMUT
Applicant

AND:

THE STATE

Respondent

CORAM:

Hon. Mr. Justice Kamal Kumar,

Chief Justice and President of Supreme Court

Counsel

Applicant in Person

Mr. S. Babitu for the Respondent

Hearing:

1 April 2021

Ruling:

13 January 2022

R U L I N G
(Application for Enlargement of Time)

Introduction

[1] On 16 July 2020, Applicant filed application for Leave to Appeal out of time Court of Appeal Judgment in Criminal Appeal No. AAU 100 of 2014, delivered on 28 November 2019.

[2] The Application was called on 3 February, 2021 when parties were directed to file Affidavit/Submission and the Application was adjourned to 1 April 2021, for hearing.

[3] Both parties filed submissions and made oral submissions.

[4] Respondent opted not to file any Affidavit in Opposition.

[5] It is well established this Court has jurisdiction and to deal with Application for Enlargement of Time, Kumar v State; Sinu v State [2012] FJSC 17, CAV0001.2009 (21 August 2012). The factors which of course are not exhaustive that needs to be taken into consideration when dealing with such application are:-

(i) Length of delay;

(ii) Reason for the delay;

(iii) Chance of appeal succeeding if time for appeal is extended or merits of the case; and

(iv) Degree of Prejudice to the Respondent if application is granted.

[6] Hence the Court must be given facts, supported by evidence explaining and/or covering these four factors.

[7] It must be understood that when Court is empowered to exercise a discretion, it should do so judicially and in the interest of justice.

[8] The factors identified by Courts when dealing with certain Applications are to guide Court to reach a decision which is fair and just under the circumstances of each case and to ensure the decisions are consistent on such Applications based on similar set of facts. These factors of course are not exhaustive.

[9] In exercising the discretion, the Court should consider the factors highlighted by Courts in addition to any other factors it thinks necessary before reaching a decision which they consider will serve interest of justice in a particular case.

[10] Interest of Justice demands that the Courts take a holistic approach by considering all the factors mentioned at paragraph [5] in addition to any other relevant factors before reaching a decision rather than dismissing the application after considering only one or two factors.

Length of Delay

[11] When considering length of delay, the Court looks at the period between the last day of doing an act which in this instance is filing and service of Petition and the time for filing of Application for Enlargement of Time.

[12] Court of Appeal judgment was delivered on 28 November 2019, and as such Petition for Special Leave to Appeal should have been filed and served by 9 January 2020 (42 days as prescribed in Rule 5 of Supreme Court Rules).

[13] It is noted that Applicant filed the Notice of Intention to Appeal on 14 May 2020, in the Supreme Court but somehow or the other the stamp affixed on the Notice was that of Court of Appeal.

[14] On 16 July 2020, being date Application was filed Supreme Court Registry stamped the Notice with that date.

[15] If Court takes the 14 May 2020, as the filing date of Appeal then Applicant is out by more than four (4) months.

[16] Application for Enlargement of Time was filed on 16 July 2020, which is more than six (6) months from the due date.

[17] In both circumstances delay is inordinate.

Reason for Delay

[18] Lord Davis in Revici Prentice Hall Incorporated & Ors. [1969] 1 All ER 772 stated that:-

“... rules are there to be observed and if there is non-compliance (other than) a minimal kind), that is something which has to be explained away. Prima Facie if no excuse is offered, no indulgence should be granted” (at 774 para F).

Application was refused in Revici’s case as no explanation for delay was given.

[19] In Ist Deo Maharaj v BP (South Seas) Co. Civil Appeal No. ABU 51 of 1994S – the Court of Appeal adopted with approval the following statement from Gallo v Dawson [1990] 64 ALJR 458 at 459:-

“Case needs to be exceptional before a Court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he/she had researched the issues involved. In Hughes v National Trustees Executors & Agency Co. of Australasia Ltd [1978] VicRp 27; [1978] VR 257, McInerney J pointed out (at 263) that one object of fixing times under court rules is “to achieve a timetable for the conduct of litigation in order to achieve finality of judicial determinations.” When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a “vested right to retain the judgment.” It would make a mockery of O.70, r.3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of knowledge is a misfortune, not a privilege.”

[20] It must be understood that time limits are set down for orderly function of Courts, and to ensure that cases are disposed of in a timely manner. This of course can be hindered by certain unforeseen events.

[21] Parties are to comply with Rules of the Court irrespective of whether they are legally represented or not.

[22] Courts are pretty conversant of the fact that inmates at Correction Services will have certain constraints in complying with time limits due to unavailability of adequate facilities or their inability to have access to legal knowledge.

[23] This Court have time and again extended time to appeal by extending sympathy towards such Applicants.

[24] It must be noted that notion of sympathy should not be misused and Applicants who seek enlargement of time to comply with Rules of Court must propound satisfactory reasons for failing to do so.

[25] Reasons afforded by the Applicant in his Statement are as follows:-

(i) Applicant is under facilitated in current circumstances;

(ii) Applicant sought legal representation and forwarded several applications to Legal Aid Commission but did not receive any response from LAC.

[26] As noted earlier delay have been over four (4) months if time from filing of Notice of Intention to Appeal in Court of Appeal is considered. Strictly speaking delay is actually six (6) months.

[27] If Applicant would have delayed in filing Petition or Application by one month or less then Court have considered the reasons advanced as satisfactory.

[28] Hence, under the circumstances, the Court has no hesitation in holding that the reasons advanced by Applicant for more than six (6) months or even four (4) months delay is unsatisfactory.

Merits of Appeal

[29] Gist of Applicant’s proposed appeal is that Court of Appeal failed to consider the additional grounds of appeal filed by the Applicant.

[30] Court of Appeal at paragraph 3 of the Judgment states as follows:-

“[3] Before us on 14 November 2019, the day of the argument of this appeal, the appellant appearing in person, submitted that in addition to the aforementioned grounds of appeal, he is presently relying on a set of new grounds of appeal, sixteen in all, which according to him, were submitted to the Registry with the permission said to have been granted by Hon. Calanchini P, on the day of the call over in June. According to the appellant, Honourable Calanchini P, at the call over in June 2019, granted permission to him to tender them along with the written submissions. The new grounds, thus filed have not been included in our appeal briefs. However, the counsel for the DPP informed that his office had received them through the Registry in August 2019. Be that as it may, we informed the appellant that in order for these new grounds to be entertained, the threshold requirements as per the Rules should be satisfied by obtaining the enlargement of time on the one hand and leave to appeal on the new grounds on the other hand. Counsel for the State informed the Court that the new grounds, do not contain any thing significantly distinguishable to the grounds upon which the original leave to appeal application was founded, save as one of the grounds of contention that at the end of the prosecution’s case, the learned High Court Judge ought to have considered the termination of the proceedings for want of evidence to establish a prima facie case that warrants the calling of a defence. The appellant conceded the submissions of the counsel for the State. Given the fact that the appellant is appearing in person, the Court decided to consider the new ground along with the rest as referred to above.”

[31] It is noted that His Lordship Justice Calanchini, P (as he then was) had granted Leave for Applicant to file additional grounds of appeal.

[32] If that was the case, then there was no need for Applicant to file Application for Enlargement of Time to file additional grounds of appeal unless His Lordship had prescribed a time for filing additional grounds of appeal and Applicant failed to file within that time.

[33] Additional grounds of appeal are not before this Court but will accept what is stated at paragraph 29 of respondent’s Submissions which is in following terms:-

“(i) Ground 1 – The police officer who made the photo id

was not called as a witness;

(ii) Ground 2 – The court failed to assess who gave the

order for the photo id to be taken;

(iii) Ground 3 – The court did not consider in his judgment that the photo id had gone missing;

(iv) Ground 4 – The court did not look into how the photo id was conducted;

(v) Ground 6 – The trial judge did not assess the medical examination form;

(vi) Ground 7 – The court did not consider that there was no material evidence to suggest rape;

(vii) Ground 8 – The court did not consider that the victim was not immediately medically treated;

(viii) Ground 9 – The court did not consider the inconsistent evidence of the victim in relation to the medical report;

(ix) Ground 10 – The court did not consider the inconsistencies in the case;

(x) Ground 11 – The same as Ground 10.

(xi) Ground 12 – The court did not consider the pain and suffering of the accused;

(xii) Ground 13 – The court did not consider the constitutional right of the accused to call and challenge evidence;

(xiii) Ground 14 – The court did not evaluate what the Investigating Officer had stated about the case in terms of there being no evidence or signs of rape or any abuse;

(xiv) Ground 15 – Summarises his grounds;

(xv) Ground 16 – Relates to Ground 5.”

[34] It appears that, Court of Appeal solely relied on what was submitted by Counsel for the Respondent without going through the grounds itself to see if there was a need for the Court to deal with any of the additional grounds of appeal.

[35] Since the Applicant was not legally represented in my view Court of Appeal should have been more cautious in framing additional grounds as that stated by Respondent’s Counsel. This is so, despite the fact that Applicant who was in person conceded the point raised by Respondent’s Counsel.

[36] This Court is of the view that this ground has some merit and may succeed.

[37] In respect to other grounds of appeal this court without going into in detail is of the view that, they have merits and some change of success.

[38] It must be noted that at this stage Court cannot deal with the grounds of appeal in detail and to do so will mean dealing with Special Leave to Appeal.

Prejudice of Respondent

[39] No evidence has been led to show how Respondent would be prejudiced if time for appeal is enlarged.

Conclusion

[40] Having considered all the factors this Court is of the view that interest of justice dictates that leave be granted to the Applicant to file and serve the Petition and Affidavit Verifying Petition out of the prescribed time.

Costs

[41] This Court takes into consideration that:-

(i) Both parties filed submissions and made oral submissions.

(ii) Applicant is serving his sentence at the Fiji Corrections Service at the moment and has no source of income.

Orders:

[42] This Court makes following Orders:-

(i) Leave is granted for the Applicant to file and serve the Petition for Special Leave to Appeal and Affidavit verifying petition out of time.

(ii) The Applicant do file and serve the Petition for Leave to Appeal and Affidavit Verifying Petition by 21 January 2022.

(iii) The Applicant do file Affidavit of Service of the Petition and Affidavit Verifying Petition within ten (10) days of service of the Petition and Affidavit Verifying Petition.

(iv) Each party is to bear their own costs.

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

Hon. Justice Kamal Kumar

President, Supreme Court

Solicitors

Applicant in Person

Office of the Director of Public Prosecutions for Respondent