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Deo v State [2012] FJCA 43; AAU0069.2011 (28 June 2012)

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

Criminal Appeal No.AAU0069 of 2011

BEFORE THE RESIDENT JUSTICE OF APPEAL, HON. JUSTICE WILLIAM MARSHALL

BETWEEN:

GYAN DEO
Appellant

AND:

THE STATE
Respondent

COUNSEL: Mr A. Sen for Appellant
Mr M. Korovou for Respondent

Date of Hearing: Monday, 30th April 2012

Date of Ruling: Thursday, 28th June 2012

RULING

1. Using my statutory power under section 35(2) I ordered on 20th January 2012 that the Notice of Appeal of Gyan Deo be dismissed.
   
2. In that ruling I said:
   

1. I have considered the grounds of appeal in Criminal Appeal No. AAU0069 of 2011 where Gyan Deo pleaded guilty to six counts of receiving a corrupting benefit on 30th March 2011 before the Labasa Magistrate. He was sentenced on 4th April 2011 to 3 years and 4 months imprisonment.

2. There is only an appeal against conviction to the Court of Appeal if there is a point of law only. There is no point of law only. There is only an appeal against sentence to the Court of Appeal unless Section 22(1)(a) is satisfied:

3. Section 22(1)(a) says:

"(1A). No appeal under subsection (1) lies in respect of a sentence imposed by the High Court in its appellate jurisdiction unless the appeal is on the ground –

(a) that the sentence was an unlawful one or was passed in consequence of an error of law; or

(b) that the High Court imposed an immediate custodial sentence in substitution for a non-custodial sentence."

4. It is clear that the learned judge who heard the appeal did not alter the sentence. So there is no jurisdiction for an appeal against sentence.

5. I have explained the powers of superior courts of record in my Supreme Court Judgment of 14th November 2011 in Ilaisa Sousou Cava v. The State Criminal Appeal No. CAV 0007 of 2010. See particularly paragraphs 12 through 22.

6. The jurisdiction to appeal under section 21 is made expressly subject to section 35. Section 35(2) allows a single judge to strike out an appeal which is bound to fail and has no prospect of success. That applies here. There is in this case no jurisdiction for the Court of Appeal to accept or hear an appeal.

7. My order therefore is:

(1) That under Section 35(2) this Notice of Appeal is dismissed as vexatious and frivolous and as it is bound to fail because there is no right of appeal, the proposed appeal being in respect of issues in which the Court of Appeal has no jurisdiction to entertain this appeal."

3. After receiving representation from Mr Amrit Sen of Maqbool & Co. I commented on 10th April 2012.
   

"Please inform Mr Amrit Sen of Maqbool & Company –

'Please reinstate this application for leave to appeal before me as soon as is convenient so that Gyan Deo or his Counsel may address the issues in Court. Please forward a copy of Ilaisa Sousou Cava being a decision of the Supreme Court which wholly binds the single judge'."

4. On 10th April 2012 I heard an application for leave to appeal in Court. Both sides were represented.
   
5. Mr. Amrit Sen argued that "a point of law only" arose in this case. The elements of section 137(1) were fully canvassed. The case of Williams and Others v. Reginam (1979) 69 Criminal Appeal Reports 254 was raised and any points therein were fully considered. I then gave Mr Amrit Sen until Monday 7th May 2012 to send in any further submissions in written form. He has not sent in any written submissions.
   
6. It is unarguable when the charges are accepting bribes for not prosecuting in respect of a particular matter, that, as a pure point of law, the prosecution must negative that other kinds of bribery may have existed within this factual nexus.
   
7. In the circumstances I confirm my order made on 20th January 2012.
   

William R. Marshall
Resident Justice of Appeal

Solicitors:
Maqbool & Company for Appellant
Office of the Director of Public Prosecutions for Respondent