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Rogers v State [2014] FJCA 205; AAU0072.2014 (5 December 2014)

IN THE COURT OF APPEAL
[On appeal from the High Court]

CRIMINAL APPEAL NO. AAU0072 OF 2014
[High Court Case No. HAM 002/14S]

BETWEEN:

JOSHUA BENJAMIN ROGERS
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Appellant In Person
Mr. L. Fotofili for the Respondent

Date of Hearing : 20 October 2014
Date of Ruling : 5 December 2014

RULING

[1] This is an application for an extension of time to appeal against a decision of the High Court in its appellate jurisdiction. The appellant was convicted and was sentenced after he pleaded guilty to charges of robbery with violence in the Magistrates' Court. The appellant appealed against his conviction and sentence to the High Court. That appeal was out of time by 3 years.

[2] On 30 January 2014, the appellant's appeal was listed for first call in the High Court. When the appeal was called in court, the learned High Court judge instead of considering whether to grant the appellant an extension of time to appeal, summarily dismissed the appeal without giving any reasons in writing. On 13 June 2014, the appellant filed this appeal. This appeal is out of time by 3½ months.

[3] In determining whether an extension of time should be granted, the court considers the following factors:

(i) the length of the delay,

(ii) the reasons for the delay,

(iii) any prejudice to the respondent, and

(iv) merits of the appeal (Livai Nawalu v The State (unreported Criminal Appeal No. CAV0012 of 2012; 28 August 2013).

[4] The appellant has offered no explanation for filing this appeal 3½ months late. On the other hand, the respondent has not pointed out to any prejudice if an extension of time is granted.

[5] The real issue is whether this appeal has merits. Counsel for the State submits that this appeal has merits and the State has no objection to an extension of time to appeal.

[6] Since this is a second tier appeal, counsel for the State has correctly pointed out that the appeal can only be brought on a question of law alone pursuant to section 22 of the Court of Appeal Act.

[7] Counsel for the State submits that the question of law in this appeal relates to the interpretation of section 251 of the Criminal Procedure Decree. Section 251 provides for the summary dismissal of an appeal by the High Court. Section 251 states:

"251(1) When the High Court has received the petition of appeal and the record of proceedings, a judge shall consider the petition.

(2) Where an appeal is brought on the grounds that –

(a) the decision is unreasonable; or

(b) the decision cannot be supported having regard to the evidence; or

(c) the sentence is excessive –

and it appears to the judge that the evidence is sufficient to support the conviction and that there is no material in the circumstances of the case which could raise a reasonable doubt whether the conviction was right or lead to the opinion that the sentence ought to be reduced, the appeal may be summarily dismissed by an order of the judge certifying that the judge has perused the record and is satisfied that the appeal has been lodged without any sufficient ground of complaint.

(3) Wherever an appeal is summarily dismissed, notice of the dismissal shall be given by the Chief Registrar of the High Court to the appellant or the appellant's lawyer."

[8] Counsel for the State submits that section 251 allows for summary dismissal in very limited circumstances before the appeal is called in court. Once the appeal is called in court either for mention or hearing, there is no power to summarily dismiss the appeal. Counsel submits that this interpretation is consistent with the later provision in section 252 of the Criminal Procedure Decree.

[9] Section 252 states that if the matter is not summarily dismissed, the Registrar shall enter the matter for hearing and the respondent is to be notified of the same. Furthermore, section 256(1) of the Criminal Procedure Decree provides for a right to be heard in an appeal.

[10] Clearly, this appeal raises a question of law alone, namely, whether the High Court has power to summarily dismiss an appeal without giving the appellant an opportunity to be heard and without giving any reasons for the dismissal after the appeal is called in court.

Result
[11] Extension of time to appeal is granted. This appeal is to be listed for hearing as matter of urgency.

Hon. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions for State