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Lal v State [2003] FJCA 22; AAU0029.2001S (30 May 2003)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0029 OF 2001S
(High Court Criminal Action No. 3 of 1999S)

BETWEEN:

MOOL CHAND LAL
Appellant

AND:

THE STATE
Respondent

Coram: Tompkins, JA
Henry, JA
Penlington, JA

Hearing: Friday 23rd and Wednesday 28th May 2003, Suva

Counsel: Appellant in Person
Mr. J. Rabuku for the Respondent
Ms Waqavonovono for the Legal Aid Commission

Date of Minute: Friday, 30th May, 2003

MINUTE OF THE COURT OF APPEAL

In November 1999 the appellant was convicted of murder by the Chief Justice and 3 assessors. The mandatory sentence of life imprisonment was imposed.

In October 2001 the appellant applied for leave to appeal against his sentence. A single Judge of this Court, Eichelbaum JA, dismissed the application under the s. 35(2) of the Court of Appeal Act (as amended) on the ground that there is no right of appeal and no right to seek leave to appeal against sentence in a case of murder, the sentence being prescribed by law.

In February 2002 the appellant wrote to the Registrar of this Court seeking leave to appeal against his conviction for murder. This application came before the then President of this Court, J R Reddy P. He heard the appellant and counsel for the State on 10 October 2002. The State opposed the application on the ground that there was no reasonable explanation for the delay in applying for leave to appeal against the conviction and in any event the proposed appeal lacked merit.

The President reviewed the evidence against the appellant, consisting primarily of damning admissions he had made to the police. He went on to consider the contents of those statements, the allegation of provocation, the Chief Justice’s ruling admitting both the appellant’s statements after a voir dire, and the closing addresses in which counsel for the appellant accepted that the only defence was provocation.

The President concluded that the evidence against the appellant was overwhelming and therefore that the appeal had no prospect of succeeding. He concluded by pointing out that the appellant has the right to have his application for leave to appeal out of time considered by the full Court. It was as a consequence of that that the appeal came before this Court on 23 May.

At that hearing the appellant said that he had sought legal aid to enable him to be represented by counsel on the application for leave and that he had been told by the Legal Aid Commission that it could not consider his application until it had received the full court record.

Because we were concerned that the wish of the appellant to be represented by counsel on the application for leave had not been met, we directed that the hearing should be adjourned until 2.15 p.m. on Wednesday 28 May 2003 and requested that a representative of the Legal Aid Commission appear before us to inform us of the position relating to the legal aid.

Consequently, when the hearing resumed on that day. Ms Waqavonovono appeared for the Legal Aid Commission. She confirmed that the appellant had applied for legal aid counsel on 17 September 2001. The Director Legal Aid had replied by letter of 23 October 2001 advising the appellant to write to the Court of Appeal to apply for leave to appeal out of time and for the appellant to file a petition with the relevant grounds of appeal. The author of the letter pointed out that when the Court supplied him with the court record he needed to forward it to the Legal Aid Office for assessment purposes.

Before us Ms Waqavonovono acknowledged that this was not the correct approach for the Commission to adopt. The person responsible for the letter of the 23 October 2001 appeared not to have understood the need for legal aid on the application for the leave to appeal out of time. In the result, therefore, his request for legal aid for that purpose has never been processed.

The appropriate course now is for a representative of the Commission to consider all the available material and to examine the court file in order to make an assessment on whether the grant of legal aid on the application for leave to appeal out of time is appropriate. To assist in that we are attaching to this minute a copy of the appellant’s application of 21 October 2002, his submissions of 27 March 2003 and the determination of the President of 15 October 2002.

The hearing of the application for leave to appeal is adjourned until the August sitting of this Court. It can be then determined, with the appellant either represented if legal aid is granted for that purpose, or unrepresented if it is declined.

Tompkins, JA
Henry, JA
Penlington, JA

Solicitors:

Appellant in Person
Office of the Director of Public Prosecutions Office, Suva for the Respondent
Office of the Legal Aid Commission, Suva