Court of Appeal of Fiji

"[30]........All these matters red tohe Appellant and and his chis criticism of the trial Judge for allegedly not giving adequate directions to the assessors are not matters which I as a single Judge hearing an application for <60;bail pending appeall ;should attempt even toen to comment on. They are matters for the Full Court ... ... .”

[14] Qurai quoted Seniloli and Otv Thee AAU 41 of 1 of 2004 (23 August 2004) where Ward P ha P had said

‘"The general restriction on granting bail ng ap#16l &#1b> as established bys by Fiji Fiji _ _ _ is that it may only be granted where there are exceptional circumstances. That is still the position and I do not accept that, in considering whether such circumstancist, ourt cannot consiconsider tder the applicant's character, personal circumstances and any other matters relevant to the determination. I also note that, in many of the cases where exceptional circumstances have been found to exist, they arose solely or principally from the applicant's personal circumstances such as extreme age and frailty or serious medical condition."

[15] Therefore, the legal position appears to be that the appellant has the burden of satisfying the appellate court firstly of the existence of matters set out under section 17(3) of the Bail Act and thereafter, in addition the existence of exceptional circumstances. However, an appellant can even rely only on ‘exceptional circumstances’ including extremely adverse personal circumstances when he cannot satisfy court of the presence of matters under section 17(3) of the Bail Act.

[16] Out of the three factors listed under section 17(3) of the Bail Act ‘likelihood of success’ would be considered first and if the appeal has a ‘very high likelihood of success’, then the other two matters in section 17(3) need to be considered, for otherwise they have no practical purpose or result.

[17] Therefore, when this court considers leave to appeal or leave to appeal out of time (i.e. enlargement of time) and bail pending appeal together it is only logical to consider leave to appeal or enlargement of time first, for if the appellant cannot reach the threshold for either of them, then he cannot obviously reach the much higher standard of ‘very high likelihood of success’ for bail pending appeal. If an appellant fails in that respect the court need not go onto consider the other two factors under section 17(3). However, the court would still see whether the appellant has shown other exceptional circumstances to warrant bail pending appeal independent of the requirement of ‘very high likelihood of success’.

[18] Grounds of appeal urged on behalf of the appellant are as follows.

‘Ground 1 - THAT the Learned Trial Judge erred in law and in fact in not adequately directing/misdirecting that the Prosecution evidence before the Court proved beyond reasonable doubts that there were serious doubts in the Prosecution case and as such the benefit of doubt ought to have been given to the Appellant.

Ground 2– THAT the Learned trial Judge erred in law and in fact in not adequately directing the Assessors the significance of Prosecution witness conflicting evidence during the trial.

Ground 3 - THAT the Learned trial Judge erred in law and in fact in not directing himself and or the Assessors to refer any Summing Up the possible defence on evidence and as such by his failure there was a substantial miscarriage of justice.

Ground 4 – THAT the Learned trial Judge erred in law and in fact in not adequately/ sufficiently/referring/directing/putting the defence case to the Assessors.

Ground 5 - THAT the Learned trial Judge erred in law and in fact in misdirecting and/or not properly and/or sufficiently himself and the assessors on the standard and burden of proof.

Ground 6 - THAT the Learned trial Judge erred in law and in fact in misdirecting and/or not properly and/or sufficiently himself and the assessors specifically on the prosecution evidence in particular previous inconsistent statement of the complainant and as such a substantial miscarriage of Justice.

Ground 7 - THAT the Appellant reserve his right to argue and/or file further grounds of appeal upon receipt of the Court records in this matter.

[19] It is clear that the appellant’s grounds of appeal have been framed in very general terms and all of them allege shortcomings in the summing-up. The written submissions also render very little help in that regard as they lack elaboration and sufficient details in that the instances which constitute the alleged deficiencies raised in the grounds of appeal from the summing-up have not been pointed out. The appellate court cannot and should not be expected to go on a voyage of discovery to find out what purported errors on the part of the trial judge have given rise to an appellant’s grounds of appeal or the factual or legal foundations thereof. As stated in Silatolu v The State [2006] FJCA 13; AAU0024.2003S (10 March 2006) it would not be an unfair description to suggest that the counsel has used a 'scatter gun' approach in drafting the grounds of appeal and not substantiated them with sufficient details at least in the written submissions.

[20] Lord Parker CJer CJ in Practice Note (Crime: Applications for Leave to Appeal) [1970] 1 WLR 663 reminded counsel that ‘it is useless to appeal without gr and that the grounds shoulshould be substantiated and particularized and not a mere formula’. Though what degree of particularity is required may not be capable of precise definition, they should be detailed enough to enable court to identify clearly the matters relied upon.

[21] It is the duty of the counsel in drafting and arguing grounds of appeal to act responsibly and not to make sweeping and unjustified attacks on the summing-up of the trial judge unless such attacks can be justified [vide Morson (1976) Cr App R 236]. Thus, counsel should not settle or sign grounds of appeal unless they are reasonable, have some real prospect of success and are such that he is prepared to argue before the court [vide paragraph 2.4 of the ‘A Guide to Proceedings in the Court of Appeal Criminal Division (‘the Guide’) published in 77 Cr App R 138].

[22] Du Parcq J in Fielding (1938) 26 Cr App R 211 said that

‘It is most unsatisfactory that grounds of appeal should be drawn with such vagueness ..... Ground 4 is in the following terms: “That the judge failed adequately to direct the jury as to the law and evidence to be considered by them”.’

‘It is not only placing an unnecessary burden on the court to ask it to search through the summing-up and the transcript of the evidence to find out what there may be to be complained of, but it is also unfair to the prosecution, who are entitled to know what case they have to meet.’

[23] In Singh [1973] Crim LR 36 the Court of Appeal drew attention to the danger of extracting sentences from the summing-up out of context when, if they had been quoted in context, they would have been unobjectionable. Nico [1972] Crim. LR 420 similarly states that the terms of any misdirection relied upon must be set out in the grounds.

[24] While the grounds of appeal should be reasonable full, counsel should not go to the opposite extreme and overloading them [vide Pybus (1983) The Times, 23 February 1983]. In James; Selby [2016] EWCA Crim 1639; [2017] Crim.L.R.228 the court warned that if grounds of appeal are inexcusably prolix and not consolidated , an application for leave to appeal might be refused on the basis that no ground was identifiable.

[25] In Rauqe v State [2020] FJCA 43; AAU61.2016 (21 April 2020) the Court of Appeal remarked as follows [see also Kishore v State [20JCA 70; AAU121.2017 (5 June June 2020), Vunisea v Fiji Independent Commission Against Corruption - Ruling [2020] FJCA 169; AAU83.2018 (16 September 2020) and Vunisea v Fiji Independent Commission Against Corruption [2020] FJCA 169; AAU98.2018 (16 September 2020)] on framing of appeal grounds.

‘[14] It is clear that the sole ground of appeal is so broadly formulated that neither the respondent nor the court would have been in a position to understand what the real complaint of the appellant was. The Court of Appeal in Gonv State&#1b> [2020] FJCA 21068.2015 (27 February 2020) reiterated the requirement of raising precise and specific grou grounds of appeal and frowned upon the practice of counsel and litigants in drafting omnibus, all-encompassing and unfocused grounds of appeal. The Court of Appeal said

‘[10] Before proceeding further, it would be pertinent to briefly make some comments on the aspect of drafting grounds of appeal, for attempting to argue all miscellaneous matters under such omnibus grounds of appeal is an unhealthy practice which is more often than not results in a waste of valuable judicial time and should be discouraged.’

[26] Similar observations were earlier made in the case of Rokodreu v State [2016] FJCA 102; AAU0139.2014 (5 August 2016) by Goundar J. as follows.

‘[4] I have read the appellant's written submissions. In his submission, apart from reciting case law, counsel for the appellant made no submissions on the grounds of appeal. The grounds of appeal are vague and lack details of the alleged errors. The Notice states that full particulars will be provided upon receipt of the full court record. This is not a reasonable excuse for not complying with the rules requiring the grounds of appeal to be drafted with reasonable particulars so that the opposing party can effectively respond to them.