Court of Appeal of Fiji

[21] The appellant’s argument that there was no evidence of discontent or dissatisfaction among the inhabitants of Fiji would hold little water as the charges levelled against them did not require such evidence to make the appellants culpable. In my view, tangible evidence of actual discontent or dissatisfaction among the inhabitants of Fiji is not required to prove a charge under section 67(1)(a) of the Crimes Act, 2009. What is required is the inference of the intention to raise discontent or dissatisfaction among the inhabitants of Fiji.

[22] The appellants also argue that there was no evidence that they were aware of the contents of PE28. The trial judge had after a careful analysis held that except RATU OSEA BOLAWAQATABU (08^th accused) others were aware of the contents. RATU OSEA BOLAWAQATABU was acquitted of count 15 because the judge was not satisfied that there was evidence that he was aware of the contents of PE28.

[23] In any event, none of the appellants gave evidence and took up that position at the trial. Therefore, the only evidence the trial judge had before him to consider was the prosecution evidence including their cautioned interviews.

[24] Therefore, I do not think that these grounds of appeal have a reasonable prospect of success.

05^th ground of appeal

[25] The argument here is that the appellants were not involved in any planning and the formulation of the document PE28 and they could not write and read English.

[26] It is clear that the prosecution had not conducted its case on the basis that the appellants were the authors of PE28 or they had compiled PE28 or they were involved in formulating PE28. To incur criminal liability under section 67(1)(a) of the Crimes Act, 2009, the prosecution did not have to attribute the authorship of PE28 to the appellants. The trial judge had fully understood it and never attempted to attribute such an authorship of PE28 to the appellants either in the summing-up or the judgment. It had been brought to the meeting on 04 November 2014 by Ms. Mereoni Kirwin.

[27] Therefore, this ground of appeal has no reasonable prospect of success in appeal.

06^th to 08^th grounds of appeal

[28] The gist of the argument here is based on the oath taken by the appellants. The appellants complain of the oath supposedly taken by him, its contents (actual words) and it being different to the oath administered on the Cabinet Ministers of the Fiji Government.

[29] The trial judge had dealt with what the prosecution was expected to prove under the counts based on the oath at paragraph 37 of the summing-up. The eye-witness Mr. Napolioni Batimala had testified to the appellants having taken an oath but he could not remember the contents of the oath. Then the trial judge had addressed the assessors on the oath taking event at paragraphs 271of the summing-up.

[30] In the judgment the trial judge had given his mind to the evidence on the appellants having taken an oath as Cabinet Ministers. The judge had correctly concluded that te exact words of the oath did not really matter.

[31] Therefore, these grounds of appeal have no reasonable prospect of success in appeal.

09^th ground of appeal

[32] The appellants have not demonstrated how the learned trial judge had failed to uphold the Constitution of Fiji. The trial judge at paragraph 82 of the summing up had correctly recognised that political rights are not absolute rights and could be lawfully restricted to protect the tranquillity of the State with sedition being one such instance.

[33] Therefore, this ground of appeal has no reasonable prospect of success in appeal

10^th to 12^th grounds of appeal (sentence)

[34] The appellants complain that the sentence passed on her was harsh and excessive and wrong in principle in all circumstances of the case.

[35] The maximum sentence for an offence under section 67(1) is 07 years of imprisonment. The trial judge had picked the starting point at 03 years, given a discount of 06 months for all mitigating features (there being no aggravating factors as conceded by the state) and reduced 02 months and 19 days of remand period to arrive at the final sentence of 02 years, 03 months and 11 days.

[36] The appellants complain that the trial judge had not considered the fact that they were first time offenders. However, I find that in paragraph 70 of the sentencing order that the judge had referred to the fact that the appellants except ULAIASI RABUA TUIVOMO were persons of good character without any previous conviction. He had also considered individual medical conditions of the appellants.

[37] The appellants have submitted that the starting point of 03 years is too high but has not substantiated that assertion with any law or judicial precedents.

[38] The trial judge had carefully considered the objective seriousness of the offence, the purpose of the sentence, some previous sentencing decisions, why the sentence should not be suspended and explained why he was not imposing a non-parole period (vide paragraphs 8 – 16, 66, 67, 68-72 and 73 of the sentencing order).

[39] The trial judge had not erred in principle. Neither was the sentence harsh and excessive. The trial judge had not taken any irrelevant maters into account contrary to the appellants’ criticism.

[40] When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range [Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015)].

[41] Before parting with this ruling I wish to point out that the drafting of appeal grounds has left a great deal to be desired. As stated in [2006] FJCA 13Pal v State [2020] FJCA 179; AAU145.2019 (24 September 2020), I made inter alia the following remarks on drafting of appeal grounds.

‘[20] Lord Parker CJ in Practice Note (Crime: Applications for Leave to Appeal) [1970] 1 WLR 663 reminded counsel that ‘it is useless to appeal without grounds and that the grounds should 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.

Order

1. Leave to appeal against conviction is refused.
2. Leave to appeal against sentence is refused.

Hon. Mr. Justice C. Prematilaka

JUSTICE OF APPEAL