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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
[On Appeal from the High Court]
CRIMINAL APPEAL NO. AAU 0104 of 2012
[High Court Case No. HAC 094 of 2010]
BETWEEN:
ROPATE VAKATALE
Appellant
AND:
THE STATE
Respondent
CORAM : S. Fernando JA
Madigan JA
P. Fernando JA
Counsel : Mr. J. Savou for the Appellant
Mr. M. Delaney for the Respondent
Date of Hearing : 13 November 2015
Date of Judgment : 3 December 2015
JUDGMENT
Shavindra Fernando JA
[1] This is a petition for renewed application for leave to appeal, under Section 35(3) of the Court of Appeal Act and an appeal. This arises consequent to the judgment of the Supreme Court pursuant to the appellant's appeal to the Supreme Court under Section 35(2) of the Court of Appeal Act Cap 12 (the Act), Criminal Petition No. CAV 8 of 2014.
[2] Following trial in the High Court before a Judge sitting with 3 assessors, the appellant was convicted on one count of robbery with violence contrary to section 293(1) (a) of the Penal Code (Cap 17), one count of criminal intimidation contrary to section 330 (a) of the Penal Code and on one count of resisting arrest contrary to Section 247(b) of the Penal Code. On 20th October 2010 the appellant was convicted on all three counts. On 26th November 2010 he was sentenced to a term of 8 years imprisonment for Count 1, 18 months for count 2 and 6 months imprisonment for count 3. The sentences were ordered to be served concurrently being a total sentence of 8 years with a non-parole term of 7 years.
[3] The appellant appealed against the conviction and sentence and raised four grounds of appeal. In a ruling delivered on 7th April 2014 a single Judge of the Court of Appeal considered each ground of appeal and concluded that none of the grounds raised an arguable point. He then went on to find that none of the grounds could possibly succeed and that as a result the appeal was frivolous. The Judge dismissed the appeal pursuant to Section 35 (2) of the Act.
[4] The appellant subsequently appealed against the order of the learned Judge of the Court of Appeal to the Supreme Court.
[5] The Supreme Court having considered the appeal concluded that the learned Judge of the Court of Appeal has curtailed the appellant's appeal to the Court of Appeal by a wrong application of the law. The Supreme Court further concluded that some of the grounds raised by the appellant could not be described as frivolous and a substantial and grave injustice would occur in the event that the appellant was not granted leave to appeal. As such the Supreme Court granted leave to appeal and allowed the appeal. The order of the Justice of appeal dismissing the appellant's appeal under Section 35(2) was quashed and the application for leave to appeal was remitted to the Court of Appeal for determination as a renewed application under Section 35(3) of the Court of Appeal Act.
Appellant's Submission
[6] Counsel for the appellant in his submission sought leave in the first instance and appealed on the following grounds:
Against Conviction
Against Sentence
[7] The judgment of the Supreme Court in the appellant's leave to appeal application from the decision of the Justice of Appeal dismissing the petitioner's appeal in paragraph 10 it is stated:
"In its submissions the Legal Practitioners for the petitioner seek to challenge the ruling of the learned Justice of Appeal on the basis that he had erred in dismissing the petitioners' appeal on the basis that the appeal was frivolous. However counsel for the petitioner informed the court that reliance for that contention will be the first ground of appeal raised in the Court of Appeal. That ground relates to the late receipt of disclosures by the Petitioner from the Legal Aid Commission thereby depriving him of the opportunity to adequately prepare in his defense."
[8] In this court too in his submissions before court the counsel for the appellant restricted his submissions to the first ground of appeal.
[9] Having considered the submissions of both counsel for the appellant and the respondent this court is satisfied that there are sufficient grounds to grant leave on the first ground of appeal therefore leave is granted on the first ground of appeal only. I will now consider the appellant's first ground of appeal against conviction.
Ground 1
The Learned Trial Judge erred in law and in fact in proceeding to trial with fore knowledge that the appellant did not have the necessary disclosures to enable him to prepare adequately in his defense.
[10] The following facts are undisputed:
(1) That the appellant was not represented by Counsel in the High Court.
(2) That although he sought assistance from the Legal Aid Commission his application for legal representation was rejected.
(3) The prosecution had handed over the disclosures in a timely manner however the appellant had handed over the same to the Legal Aid Commission.
(4) That on the date of trial when it was brought to the notice of the trial Judge that the appellant was not in possession of the disclosures the trial Judge permitted him to be escorted to the Legal Aid Commission to retrieve the disclosures. As such he received the disclosures only on the date the trial commenced.
(5) The trial commenced a few hours later with a 'voir dire' inquiry.
(6) That the appellant did not seek an adjournment and during the 'voir dire' inquiry hardly raised any questions in cross examination.
[11] I will now proceed to examine and consider the appellant's submission on his first ground of appeal along with the respondent's response to the said ground of appeal.
[12] It was the submission for the appellant that:
The learned Trial Judge erred in law and in fact by proceeding to trial with fore knowledge that the appellant did not have the necessary disclosures to enable him to prepare adequately.
[13] The respondent in response to the first ground of appeal by the appellant submitted that although the appellant was clearly without the disclosures up until the commencement of the 'voir dire' inquiry, he always intended to represent himself in the event that the Legal Aid Commission declined to represent him. Further there was no request on behalf of the appellant for an adjournment just before the voir dire inquiry. The respondent contended that the rights conferred in Section 14 (2) (c) of the Constitution of Fiji, which require adequate time and facility to prepare a defence and access to witness statement if requested, the court may wish to consider the issues of adjournment and adequacy of preparation.
[14] The respondent also submitted that the appellant being no stranger to court procedure, a fair inference can be drawn that he was aware of this right to request for an adjournment, but chose not to do so and that such choice was not necessarily made due to ignorance.
[15] Section 14(2) (c) of the Constitution guarantees certain rights to every person charged with an offence. Section 14 (2) (c) reads as follows:
Section 14(1) ...
(2) Every person charged with offence has the right –
(a) ...
(b) ...
(c) To be given adequate time and facilities to prepare a defence, including if he or she so requests, a right of access to witness statements;
[16] The purpose of this right is to ensure that every person is entitled to a fair trial which is a basic fundamental right in any democratic society. Blackstone Criminal Practice 2013 A7.64 states:
"the adequate time requirement inevitably depends on the nature and complexity of the case. It cannot be determined in the abstract but only by reference to the circumstances of each case (XY v Austria [1979] 15 DR 160) where there is late change of lawyer an adjournment may be necessary. Where it is obvious that a lawyer has not had adequate time to prepare the defense properly, the court should consider adjourning the case on its own motion (Goddy v Italy [1984] ECHR 4; [1984] 6 EHRR 457)".
[17] In the current case the appellant was unrepresented and was in custody up to and during the trial.
[18] The rights enshrined in Section 14 of the Constitution should not be narrowly interpreted or given a restricted meaning but interpreted widely.
[19] When the appellant informed that he had not received disclosures on the day of the trial, the trial Judge quite correctly permitted him to be escorted to the Legal Aid Commission in order for the appellant to retrieve them. Since the trial commenced a few hours after the appellant received the disclosures he had a right to seek an adjournment of the trial for adequate preparation of his defense based on his Constitutional right under Section 14 (2) (c) of the Constitution.
[20] Then the question that would arise is, whether the appellant was aware of this right. The State submitted that it is fair to infer, that he knew of such a right as he was no stranger to court and as he chose not to seek an adjournment.
[21] I cannot agree with this submission of the State. I am of the view that since the appellant was unrepresented there was a duty cast upon the trial Judge to consider and grant an adjournment on his own motion or at least ask the appellant if he needed time and facilities to adequately prepare his defense, since the appellant had just received the disclosures. This is further compounded by the fact that a few hours after the disclosures were made available to the appellant, the trial commenced with the 'voir dire' inquiry on the appellant's caution interview statement. This was the most important and crucial piece of evidence against the appellant since the prosecution depended solely on the caution interview statement to prove the identity of the appellant at the time the offence was committed.
[22] The respondent in the submissions dated 12th November 2015 in paragraphs 23 – 25, in my view correctly stated;
"the possible inadequacy of the presentation of the defense was noted by the Judge. The short delay was wholly accidental and coincidental to the issue of providing adequate preparation time. In conclusion the state cannot argue with any degree of force that there was no miscarriage of justice. It follows that nothing useful can be added in the matter of a fair trial. In the circumstances the proviso cannot be applied as the reasoning above removes the possibility that there was no miscarriage of justice".
[23] I am of the view that the appellant by not having adequate time to prepare his defense a right guaranteed to him under Section 14 (2) (c) of the Constitution was violated. Thus he was deprived of a fair trial which resulted in a miscarriage of justice. Therefore the convictions and sentences should be quashed.
[24] The only remaining issue is if a re-trial should be ordered. The respondent has submitted (paragraph 27 of their submissions) that it is clearly in the public interest to order a re-trial. The nature of the offence is serious and the confession is cogent evidence. Public interest is served by prosecuting this type of offence.
[25] In considering if a re-trial should be ordered when a conviction is quashed the court must consider both the public interest factor in prosecuting this type of offence as well as any prejudice it would cause to the appellant. In Au Pui-Kuen v. AG of Hong Kong (P.C) (1980) AC 351) it is stated:
"The power to order a new trial must always be exercised judicially. Any criminal trial is to some degree an ordeal for the accused; it goes without saying that no Judge exercising his discretion judicially would require a person who had undergone this ordeal once to endure for a second time unless the interest of justice required it..."
and later,
"A court to exercise it judicially may involve the court in considering and balancing a number of factors some of which may weigh in favour of a new trial and some may be against it. The interests of justice are not confined to the interests of the prosecutor and the accused in a particular case. They include the interest of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of a technical blunder of the Judge in the conduct of the trial or his summing up to the jury".
[26] The period from the sentence already served is also to be considered when deciding whether or not to order a re-trial.
In Archbold 2013 at page 1154;
"The decision whether to order a retrial requires and exercise of judgment involving consideration of the public interest and the legitimate interest of the defendant. The former was generally served by the prosecution of those reasonably suspected on available evidence of serious crime, if such prosecution could be conducted without unfairness to or an oppression of the defendant. The legitimate interest of the defendant would call for a consideration of the time which has passed since the alleged offence and any penalty already paid".
[27] In this case, the appellant was sentenced to 8 years on count 1, 18 months for count 2, and 6 months for count 3. The sentences were to run concurrently. The appellant was sentenced on 26/11/2010 which is nearly 5 years ago. The appellant served a further period of 1 year 11 months in custody prior to and during the trial.
[28] It is clear that the appellant has already been in custody for nearly 7 years as a result of this offence. This is a substantial part of the sentence. Although I am conscious that public interest demands that crimes of this nature should be dealt with severely considering all the circumstances in this case I am of the view that it is not justifiable to order a re-trial.
[29] I therefore quash the convictions imposed by the High Court Judge in his Judgment delivered on 20th October 2010 and the sentences imposed on 26th November 2010.
Madigan JA
[30] I have read in draft the judgment of S. Fernando JA. For the reasons he gives therein I would agree that leave to argue the first ground of appeal should be granted, the appeal be allowed on that ground alone, that the conviction be quashed and the sentence set aside.
[31] I would add that having no time to adequately prepare for trial is not automatically a reason to allow an appeal. The circumstances of the preparation and particularly the conduct of the trial by the accused will be of the utmost relevance to a decision as to whether the accused was prejudiced or not. Experience teaches us that some unrepresented and "ill prepared" accused persons conduct their trials as well as if not better than experienced counsel.
Priyantha Fernando JA
[32] I agree with the judgment of S. Fernando JA.
The Orders of the Court are:
Hon. Mr. Justice Shavindra Fernando
JUSTICE OF APPEAL
Hon. Mr. Justice Paul Madigan
JUSTICE OF APPEAL
Hon. Mr. Justice Priyantha Fernando
JUSTICE OF APPEAL
Solicitors:
Office of the Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent.
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URL: http://www.paclii.org/fj/cases/FJCA/2015/151.html