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Silatolu v State [2018] FJCA 118; ABU23.2016 (13 July 2018)

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

CIVIL APPEAL ABU 23 of 2016
(High Court HAM 163 of 2014)

BETWEEN : TIMOCI SILATOLU

Appellant

AND : THE STATE

Respondent

Coram : Calanchini P
Wati JA
Seneviratne JA

Counsel : Appellant in person
Mr. Sherani, J. for the Respondent.

Date of Hearing : 25 June 2018

Date of Judgment : 13 July 2018

JUDGMENT

Calanchini, P

1. I have read in draft form the judgment of Wati JA and agree with her reasoning and her conclusions.
   

Wati, JA

2. On 26 March 2015, the appellant Timoci Silatolu had filed an application for constitutional redress in the High Court seeking orders for his release from the prison and setting aside of his conviction for treason.
   
3. His application was heard on 28 May 2015 and an oral judgment was delivered on 9 June 2015 where the application was dismissed. No reasons were published on this date.
   
4. On 23 June 2015, the High Court delivered a written judgment publishing the reasons for dismissing the application for constitutional redress. The application was dismissed substantially on the grounds that the Court does not have jurisdiction to interfere with the Commissioner of Prison’s role in determining when the convict is to be released, having served now the recommended minimum term of 9 years.
   
5. The High Court also found that the prisoner may have alternative remedies of making an application to the Commissioner of Human Rights, or in making a renewed application to the parole board.
   
6. The appellant appeals the decision of the High Court. He filed two notices of appeal on 22 June 2015 and 21 May 2016. The issues which can be identified from the two notices are:
   
   1. Whether the appellant was provided an adequate opportunity to address the Court on his application for constitutional redress which affected the final findings.
      
   2. Whether the High Court was correct in finding that it does not have jurisdiction to decide on the issue of the appellant’s release and that he has alternative ways to address the issue of his release.
      
   3. Whether the appellant can challenge his conviction and sentence in this appeal.
      
7. I will deal with each issue in turn, not necessarily in the order identified.
   
   1. Release from Prison
8. It is important to clearly state the appellant’s position in regards his conviction and sentence. The appellant Timoci Silatolu was charged and convicted for treason by the High Court. He was sentenced on 27 June 2003 to life imprisonment with a fixed minimum term of 9 years to be served.
   
9. The appellant then appealed the decision to the Court of Appeal. His appeal against the conviction was dismissed but the appeal against the sentence was allowed to the extent of substituting the fixed term of 9 years with a recommended minimum term of 9 years to be served.
   
10. The appellant again appealed the decision of the Court of Appeal which was dismissed by the Supreme Court on 29 February 2008. The appellant was still not satisfied with the decision of the Full Court so he applied for a review of the decision. The decision on the review application was delivered on 17 October 2008. The application for review was dismissed on the basis that the appellant was attempting to re-argue his appeal which was dismissed by the Full Court.
    
11. The application for constitutional redress to the High Court on 26 March 2015 found life from paragraph 8 of the review judgment of the Supreme Court where the Full Court appears to recapture the appellant’s status on conviction and sentence.
    
12. It is noted at paragraph 8 of the review judgment that “the petitioner was convicted of treason in the course of what is known as the Speight Coup of 19 May 2000 and sentenced on 20 March 2003 to nine years imprisonment...”
    
13. The appellant says that since the Full Court had summarized his sentence as 9 years in paragraph 8 of the judgment, that is his sentence and he should now be released from the prison.
    
14. Madigan, J in his High Court decision had made it clear that the review judgment had not changed the sentence. In fact the application for review was dismissed in its entirety.
    
15. During the appeal hearing, the appellant insisted that the Supreme Court has clarified his sentence in the review judgment and that he should now be released from the Prison in that he has now served the 9 years term.
    
16. I have carefully gone through the various judgments of each court and I find that the only change that was made to the appellant’s sentence over the years was by the Court of Appeal on 10 March 2006 where the fixed minimum term was substituted for a recommended minimum term of 9 years to be served.
    
17. Neither the Court of Appeal nor the Supreme Court at any time has changed the sentence from life imprisonment to 9 years. The review judgment had dismissed the application for review. Paragraph 8 appears to be a regurgitation of the conviction and sentence which unfortunately was not clearly spelt out by the Supreme Court. The appellant’s sentence is not 9 years and it is not with effect from 20 March 2003. He was sentenced to life imprisonment with a recommendation only that he serves a minimum of 9 years imprisonment. His sentence was with effect from 27 June 2003.
    
18. The appellant cannot fairly rely on paragraph 8 to assert that his sentence is 9 years and not life imprisonment with recommended minimum term of 9 years. I cannot find that the High Court made an error of law in analyzing the review judgment and finding that it did not make any changes to the appellant’s sentence.
    
19. I now turn to the Court’s finding that it does not have jurisdiction to dictate or advise the Commissioner of Prisons as to when the appellant should be released from the Prison. The appellant’s contention is that the Court has powers to order him to be released from the Prison as he has served the term imposed by the Court. It is correct that the appellant has already served 9 years recommended minimum term but I have clarified that his sentence is life imprisonment. The decision whether or not he should be released from the Prison vests in the Officer in Charge of the Prisoner and in cases of doubt the Commissioner of Prison. If the Commissioner of Prison is unable to ascertain the effect of any law applying in the appellant’s context, the Commissioner may refer the matter for determination by the Attorney-General.
    
20. Section 48 of the Corrections Service Act 2006 is very clear as to the powers and authority of persons who shall be in-charge of releasing prisoners. It states that:
    

“48(1). Every officer in charge shall be responsible for ensuring that a prisoner is discharged –

(a) at the end of their effective sentence;

(b) in accordance with the order of any court;

(c) into the custody of any person having lawful authority over the prisoner in accordance with a law applying in Fiji; and

(d) in accordance with any decision made by a competent authority authorizing a prisoner’s release on parole.

(2). In the event of any doubt arising as to the actual date upon which discharge is due, or the lawful authority of any person into whose custody a prisoner is to be released, the officer in charge shall refer the matter for determination by the Commissioner.

(3). Where the matter has been referred to the Commissioner under subsection (2), and the Commissioner is unable to ascertain the effect of any law applying in that context, the Commissioner may refer the matter for determination by the Attorney-General”.

21. The Court does not have any power under the above provisions of the law to consider the question of the appellant’s release on an application for constitutional redress. Any attempt by the court to exercise its powers under the above provisions would be ultra vires.
    
22. If the appellant is of the view that his punishment should be remitted in part, he then has to apply to the Mercy Commission for the same under s. 119 (3) (c) of the Constitution of Fiji which states that “on the petition of any convicted person, the Commission may recommend that the President exercise a power of mercy by remitting all or a part of a punishment”.
    
23. I note from the appellant’s submissions that he has made his application to the Mercy Commission on 4 May 2018, after he had filed this appeal. The appellant can pursue his application in the Mercy Commission.
    
24. Prior to the High Court judgment and after the review judgment of the Supreme Court, the Hon. Chief Justice by his letter of 16 March 2012 to the Nasinu Corrections Center clarified the effect of the appellant’s sentence in the following manner.
    

“... 1. The commencement date of the sentence of imprisonment is 27^th June 2003.

2. The term 9 years (as corrected by the Court of Appeal) was a recommendation to the Commissioner of Prisons, the form of sentence applicable under sentencing law at the time [section 33 of the Penal Code]. Under subsequent amendment, and under the later Sentencing and Penalties Decree the non-parole is now fixed by the court.

3. If the recommendation is followed by the Commissioner, the release date would be 27 June 2012. The Commissioner has discretion over whether to follow the recommendation. This will depend on behaviour in prison and other concerns over the propriety of release after the expiry of the recommended period, as with any other prisoner serving a life term”.

25. The appellant has had the benefit of being administratively informed as well about the effect of the sentence that he is serving and that the review judgment does not alter the sentence to any extent.
    
26. It was brought to the attention of the Court during the hearing of this appeal that the question of the appellant’s release date from the prison had been the subject of an application for redress in the High Court and Court of Appeal before.
    
27. The appellant had previously applied for a release date to be clarified by the Court which application was dismissed by the High Court on the basis that it was a matter for the Prison administration and not for the court in a redress application. The Court of Appeal heard the appeal from that decision dismissing the application and found at paragraph 13 that “we agree that the setting of an earlier and latest release date cannot be raised by the appellant and neither can the question of immunity from prosecution”. The Full Court had clarified in the judgment that the Commissioner of Prisons had adequately addressed the issue of release by its letter and that the appellant must accept the position.
    
28. It is important that I reproduce the letter which the Court of Appeal made reference to. The letter was in response to the appellant’s concerns on his date of release even before the appellant had served his minimum recommended term:
    

“Remission of Sentence

I write to acknowledge and thank you for your correspondence dated 29 September, 2003 on the above subject and wish to advise as follows:

Remission of Sentence is provided for under Section 63 and Regulation 141 of the Prisons Act Cap. 86. Your contention is correct, but your interpretation relating to your case is wrong. The court sentenced you to life imprisonment that is your sentence. Because there is no final date of a life sentence one-third remission cannot therefore be calculated. Hence, the provision of Section 63 and regulation 141 about calculation and computation of remission cannot be applied.

However, government as a matter of policy adopted that a prisoner sentenced to life imprisonment must service at least nine (9) years before he or she can apply through the Prerogative of Mercy Commission for Presidential Pardon. The Prerogative of Mercy Commission is established under Section 115 of the 1997 constitution.

However, the prisoner must display consistent, satisfactory industry, good behavior and conduct to be eligible for sympathetic consideration by the Prerogative of Mercy Commission. There have been cases in the past where prisoners serving sentences have not been favourably considered for a Presidential Pardon even after serving 15 years of their life sentence due to consistent unsatisfactory industry and frequent misbehavior.

In your case, as you said you were sentenced to life imprisonment and the Judge fixed a period of nine (9) years with effect from June, 2003 which “must be served”. Therefore, your case falls into the same category of other prisoners serving life sentence. We are always guided by the recommendation of the sentencing court of the minimum period that a prisoner sentenced to life imprisonment must serve.

In the absence of such recommendation, the case conforms to the government policy to at least serve nine (9) years before the Prerogative of Mercy Commission considers for presidential Pardon. Therefore, in your case your sentence is life imprisonment and the Judge has ordered that you must serve nine (9) years. This nine (9) years therefore is not subject to remission.

I hope the above explanation assists you in understanding your situation”.

29. The previous decision of the High Court and Court of Appeal are very clear on the question of the jurisdiction of the Court to consider the question of release and remission. I find that the appellant’s application to the High Court for the second time amounts to re-litigation of the same issues previously addressed clearly by the Court of Appeal. His application to the Court on his release is an abuse of the process of the Court and an attempt to challenge his conviction and sentence. This takes me to the second issue on whether the Court can entertain any arguments surrounding the validity of the appellant’s conviction and sentence.
    
    2. Conviction and Sentence
30. I must make it clear at the outset that this Court does not have any jurisdiction to consider the question of conviction or sentence at all. The appellant had exercised his rights on appeal and has had the issue of conviction and sentenced assessed by two appellate courts before. He cannot re-litigate those issues again on any grounds including that the law under which he was convicted has been repealed. His argument plainly has no legal basis.
    
    100. Beach of Natural Justice: Right to be Heard
31. The appellant’s contention that he was not allowed an oral hearing before Madigan, J does not advance his case any further. The file notes of 28 May 2015 reveal that he was heard on papers. There is nothing in the Court minutes to suggest that he was provided an oral hearing. He was however provided an oral hearing during this appeal and allowed to raise the arguments he says he was deprived of in the High Court. He fails to convince me that even if he was provided an opportunity of the same nature, the findings of the High Court would be different.
    
32. I find that the appeal lacks merit on all the issues and that it should be dismissed. I do not find that any order for costs against the appellant is justified in the circumstances.
    

Seneviratne, JA.

33. I agree with the reasoning and findings of Wati JA.
    

ORDERS OF THE COURT

34. The orders of the Court are that the appeal is dismissed and each party to bear their own costs.
    

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

Hon. Justice William D. Calanchini

President, Court of Appeal

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

Hon. Madam Justice Anjala Wati

Justice of Appeal

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

Hon. Justice Lyone Seneviratne

Justice of Appeal