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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 129 of 2016
[In the High Court at Suva Case No. HAC 063 of 2013L]
BETWEEN:
LIVAI KAIVITI RATABUA
Appellant
AND:
THE STATE
Respondent
Coram : Prematilaka, JA
Counsel : Appellant in person
: Mr. Y. Prasad for the Respondent
Date of Hearing : 26 May 2020
Date of Ruling : 04 June 2020
RULING
[1] The appellant had been indicted in the High Court of Suva on a single count of murder contrary to section 237 of the Crimes Decree, 2009 committed on 07 January 2013 at Suva in the Central Division.
[2] The information on the count of murder was as follows.
‘Statement of Offence
MURDER:
Particulars of Offence/p>
LIVAI KAIVITI RATABUAi> on60;on60;on the 7th day of January 2013, at Lautoka in the Western Division murdered MACIU BAKANI.
[3] After full trial, the assessod expd a uous opinion nion of guilty against the appellant for mfor murder on 13 July 2016. The learned Hied High Court judge had agreed with the asrs and convicted the appellppellant of murder in his judgment on the same day. He was sentenced on 14 July 2016 to life imprisonment with a minimum serving period of 15 years.
[4] The appellant being dissatisfied with the conviction had by himself filed a timely notice of appeal on 14 July 2016 (re-submitted twice or thrice later) only against conviction. The appellant’s written submissions had been received by the registry on 16 February 2018. Two additional grounds of appeal against conviction and submissions thereon had been tendered on 11 May 2018. An application for bail pending appeal and submissions had reached the registry on 18 October 2018. Further submissions on the application for bail pending appeal had been filed on 29 November 2018. The state had filed written submission on 19 March 2019 and supplemental written submissions on 17 July 2019.
[5] In terms of section 21(1)( b) of the Court of Appeal Act, the appellant could appeal against conviction only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019).
Law on bail pending appeal
[6] In Tiritiri v State [2015] FJCA 95; AAU09.2011 (17 July 2015) the Court of Appeal reiterated the applicable legal provisions and principles in bail pending appeal applications as earlier set out in Balaggan v The State AAU 48 12 (3 December 2012 2012) [2012] FJCA 100 and repeated in Zhong v The State AAU 42013 (15 July 2014)4) as follows.
8216;[5] There is also before the Court an application for
[6[6] In&] In Zhong - The State
"[25] Whether bail;bail pending a> should be granted is aer foer for the exerci the Court's discretionn. The words used in section 33 (2) are clear. The Court may, if it sees fit, admit an appellant to;bailing appeal. . The discretion is to be exercised ised in accordance with established guidelines. Those guidelines are to be found in the earlier decisions of this court and other cases determining such applications. In addition, the discretion is subject to the provisions of the Bail Act 2002. The discretion must be exercised in a manner that is not inconsistent with the Bail Actt.
[26] The starting point in considering an application for bail pendinealBail Act there is a rebuttable prtiomption in favour of granbail. In the latter case, under section 3(4) of the Bail Acti>, the presumption in favour of granting bail is displacedlaced.
[27] Once it has been accepted that under thei>Bail Act there is noumption in fain favour of bail for a convicted person appealing against conviction and/or sentence, it is necessary to consider the factors that are releto the exercise of the discretion. In the first instancstance these are set out in section 17 (3) of the Bail Act whictes:
(a likelihood of success in t in the appeal;
(b) the likely time before the appeal hearing;
(c) the proportion of the original sentence which will have been served by the appellant when the appeal is heard."
[28] Although section 17 (3) imposes an obligation on the Court to take into account the three matters listed, the section does not
preclude a court from taking into account any other matter which it considers to be relevant to the application. It has been well established by cases decided in Fiji that bail penappeal b> should only be grantere thee there are exceptional circumstances. In Apisaiyayawa Tora anda and Others –v- R (1978) 24 F, the Court of Appeal emphasised the overriding impo importance of the exceptional circumstances requirement:
"It has been a rule of practice for many years that where an accused person has been tried and convicted of an offence and sentenced
to a term of imprisonment, only in exceptional circumstances will he be released on bail during the pending of an appeal."
[29] The requirement that an applicant establish exceptional circumstances is significant in two ways. First, exceptional circumstances may be viewed as a matter to be considered in addition to the three factors listed in section 17 (3) of the Bail Act. Thus, even if an applicant does not bring his application within section 17 (3), there may be exceptional circumstances which may be sufficient to justify a grant of bail pendppeal. S Secondly, exceptional circumstances should be viewed as a factor for the court to consider when determining the chances of success.
[30] This second aspect of exceptional circumstances was discussed by Ward P in Rope Seniloli and Othd Others –v- The State (unrepocriminal appeal No. No. 41 of 2004 delivered on 23 August 2004) at page 4:
"The likelihood of success has always been a factor the court has dered in applications for baiding appeal #160;and se 17 (3)7 (3) now enacts that requirement. However it gives no indication that there has been any change in the manner in which
the court determines the question and the courts in Fiji have required a very high likeliikelihood of success. It is not sufficient that the appeal raises arguable points and it is not for the single judge on an application for bail pendppeal to b>to delve into theaactual merits of the appeal. That as was pointed out in Koya's case (Koya v The State unted AAU 11 of 1996 by Tiky Tikaram P) is the function e Fulrt after hearing ring full argument and with the advantage tage of having
the trial record before it."
[31] Itows that the long standing ding requirement that bail pg app16l b> will only be grant exceptioeptional circumstances is the reason why "the chances of the appeal succeeding" factor in section 17 (3) has been interpreted by this Coo meaery hikelihood ofod of success."
[7]> [7] In Ratu Jope Seniloli & Ors. v The State AAU 41 of 2004 ( 2ust 2004)2004) the Court of Appeal said that the likelihood
of success must be addressed first, and the two remaining matte S.17f the Bail Act namely "the yikele time befe before the appeal hearing" and "the pthe proportion of the original sentence which will have been served
by the applicant when the appeal is heard" are directly relevant ' only if the Court accepts there is a real likelihood of success'
otherwise, those latter matters 'are otiose' (See also Ranigal v State [2019] FJCA 81; AAU0093.2018 (31 May 2019)
[8] In Kumar v State [2013] FJCA 59; AAU16.2013 (17 June 2013) the Court of Appeal said ‘This Court has applied section 17 (3) on the basis that the three matters
listed in the section are mandatory but not the only matters that the Court may take into account.’
[9] In Qurai v State [2012] FJCA 61; AAU36.2007 (1 October 2012) the Court of Appeal stated
‘It would appear that exceptional circumstances is a matter that is considered after the matters listed in section 17 (3) have been considered. On the one hand exceptional circumstances may be relied upon even when the applicant falls short of establishing a reason to grant bail under section 17 (3).
On the other hand exceptional circumstances is also relevant when considering each of the matters listed in section 17 (3).’
[10] In Balaggan the Court of Appeal further said that ‘The burden of satisfying the Court that the appeal has a very high likelihood of success rests with the Appellant’
"... The fact that the material raised arguable points that warranted the Court of Appeal hearing frgument with the benefit of the trial record does not by itself lead to the conclusion that that there is a very high likelihood that the appeal will succeed...."
[12] Justice Byrne in Simon John Macart. Thv. The State Cr. App AAU0103 of 2008 in 8 in his Ruling regarding an application for bail pending appeal sath rece to arguments based on inadequacy of the summinumming up of the trial [also see b>Talala v State [2017] FJCA 88155.24 Jul7)].
"[30]........All thll these mese matters referred to by the Appellant aant and hind his 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 bail pending appeal <1b>&#hould attempt even toen to comment on. They are matters for the Full Court ......”
[13] Qurai quoted Seniloli and Others v The State AAU 41 of 2004 (23 August) 004) where Ward P had said
‘"The general restriction on granting bail pendineal&#/b0;<160;as60;as established by cases by Fiji _ _ _ is _ is that it may only be granted where there are exceptional circumstanceat isl the position and I do not accept that, in considering whether such circumstancetances exis exist, the Court cannot consider 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."
[14] 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.
[15] 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.
[16] 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’.
[17] The evidence of the case is summarised by the learned trial judge as follows.
‘THE PROSECUTION’S CASE
“16. The prosecution’s case were as follows. On 7 January 2013, between 4 pm and 7 pm, the accused (DW1), Elia (PW1), the deceased and one Navitalai were drinking liquor near Balawa Cemetery in Lautoka. They were drinking rum, that is, three bottle of 26 ounce rum. At about 9 pm, Elia returned home with the deceased and the two continued drinking at Elia’s house. The accused also joined the two a while later. An argument erupted between Elia and his wife.
19. Bystanders stopped the accused from further assaulting the deceased. The deceased was later taken to Lautoka Hospital. He died 10 minutes after arriving at the hospital. On 8 January 2013, the day after the accused’s alleged assault, a post-mortem was done on the deceased. Visible external injuries were found on the deceased’s forehead, right side of the head, middle of the head and on the left ear region. The cause of death was “compression of medulla oblongata” (brain injuries) due to assault. The matter was reported to police. An investigation was carried out. Accused was caution interviewed by police on 8 and 9 January 2013. He admitted stomping and kicking the deceased on the head at the material time. On 10 January 2013, the accused appeared in the Lautoka Magistrate Court charged with murdering the deceased on 7 January 2013.”
THE ACCUSED’S CASE
[18] The appellant’s written submissions have raised issues different to the grounds of appeal stated in the initial notice
of appeal. Those issues have not been crystallised as separate grounds of appeal. They consist of matters relating to provocation,
intoxication, retaliation, recklessness and the young age of the appellant. The appellant argues that one, more or all of them should
have brought the conviction of murder down to one of manslaughter or grievous hurt. I shall deal with them separately for clarity.
Ground One
‘The learned trial judge has failed to direct the assessors on provocation and intoxication that were available on evidence.’
[19] The appellant argues that had the learned trial judge directed the assessors on provocation and intoxication that arose from evidence negating the fault element of murder namely the intent to cause death, the verdict of murder may have been reduced to one of manslaughter or causing grievous hurt.
[20] Unfortunately for the appellant the evidence does not reveal sufficient evidence for the learned trial judge to address the assessors on provocation. In Praveen Ram v State (201SC 12; CAV0001.2011 (9 1 (9 May 2012) the Supreme Court held as follows:
“This authority recognizes the acute practical dilemma facing a defendao may have an arguable defence of provocation, giving possipossible ground to support a conviction of manslaughter instead of murder, but who chooses to deny the participation in the killing altogether. Justice requires that consideration be given to a possible defence disclosed by the evidence even if, for reasons good or bad, the defendant chooses not to advance it. Before thee can properlyperly invite the jury to consider a defence of provocation, there must be evidence fit for the jury’s considon that the defendant was provoked to lose self-control and act as he did.” (emph(emphasis added)
[21] In Naitini v State [2020] FJCA 20; AAU135.2014, AAU145.2014 (27 February 2020) the Court of Appeal analysed several previous decisions of the Court of Appeal and the Supreme Court on the issue of provocation and in my view, the appellant’s case falls far short of the requirements laid down for a plea of provocation to be placed before the assessors and succeed.
[22] In Tapoge v State [2017] FJCA 140; AAU121.2013 (30 November 2017) the Court of Appeal dealing with intoxication held
‘[22] Like provocation, voluntary intoxica#160; is n;is not an excuse for an unlawful killing. But voluntary intoxication r;is ant in determitermining whether the acchad te-reqe fault element to be guilty of murder.rder. Sect Section 31 (1) of the Crimes Act 2009 sta9 states that if any of a defencbasedctuadctualledge odge or belr belief, ief, evidence of intoxication>&
[23] Like in e in the case of provocation, I do not think that there was sufficient evi warrg any direction oion on intn intoxication in this case and in my view, the same observations in Ram would apply to intoxication as well i.e. before the judge can properly invite the jury to consider a defence of intoxication, there must be sufficient evidence fit for the jury’s consideration as to whether the appellant entertained any of the fault elements of murder when he executed the physical act.
[24] In this case the appellant’s defence was that he did not stomp the deceased’s head but only other parts of the body and therefore did not contribute to the fatal injuries. Thus, in that factual context, intoxication need not have been considered in determining whether the appellant entertained any fault element in relation to the offence of murder.
Ground Two
[25] The appellant seems to argue that even if it could be accepted that he had stomped the deceased’s head he could not be held to have been reckless in causing the death of the deceased leave aside the intention to cause death.
[26] In the light of the fact that the prosecution had run its case on the premise that the appellant was reckless as to causing the deceased’s death, the learned trial judge had correctly put to the assessors the fault element of recklessness in the offence of murder in paragraphs 12, 13 and 36 of the summing-up and directed them in paragraph 14 to consider (if they do not find him guilty of murder) the lesser offence of manslaughter, as now contended by the appellant, based on his intention to cause serious harm or being reckless as to causing serious harm to the deceased. The assessors had decided that the appellant was reckless as to causing the death of the deceased and the learned trial judge had agreed with them that the appellant had been reckless in causing the death of the deceased in paragraph 5 of the judgment.
[27] In the circumstances, I cannot see a reasonable prospect of the appellant succeeding on this ground of appeal at this stage. If at all, it is only the Full Court that can examine the issue aided by the complete appeal record as to whether the appellant was being reckless only as to causing serious harm to the deceased as opposed to the appellant having been reckless as to causing the death of the deceased.
Ground Three
[28] The appellant argues that at 18 years of age at the time the offence was committed, he was not aware that he was taking an unjustifiable risk that the deceased would die due to him being stomped and kicked on the head.
[29] However, the appellant was obviously not of such a tender age as not to understand the natural consequences of his acts or not to know the risk involving in his act of stomping and kicking the head of the deceased. Thus, no directions on this line of argument were required. This ground has no merits.
Additional grounds
Ground Four
‘The summing-up lacks essential qualities of objectivity and even-handedness.’
[30] The appellant argues that the learned trail judge had not delivered the summing-up in a fair, objective and balanced manner and particularly complains of paragraphs 31 and 33 of the summing-up. He cites the following observations in Tamaibeka v State [ FJC] 1; A 1; AAU0015u.97s (8 January 1999) in support of his contention.
‘A Judge is entitled to comment robustly on either the case for the prosecution or the case for the defence in the course of a summing up. It is appropriate that he puts to the assessors clearly any defects he sees in either case. But that must be done in a way that is fair, objective and balanced. If it is not, the independent judgment of the assessors may be prejudiced. If all the issues are put in a manner favourable to one party and unfavourable to the other, the assessors may feel bound to follow the view expressed by the Judge’
[31] I have examined the impugned paragraphs and the summing-up in its totality carefully but cannot find that the trial judge is in violation of the above observations in Tamaibeka. This ground has no merit.
Ground Five
‘The learned trial judge erred in law when His Lordship misdirected the assessors by shifting the burden of proof on the appellant to prove his innocence.
[32] The appellant refers to paragraphs 4 and 41 on the one hand and 2 and 40 on the other of the summing-up to advance his argument that in the latter two paragraphs the learned trial judge had shifted the burden away from the prosecution. They are as follows.
‘4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
41. Remember, the burden to prove the accused’s guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution’s version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused’s guilt, you must find him guilty as charged. If you do not accept the prosecution’s version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused’s guilt, you must find him not guilty as charged.
2. ........It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
40. There were 9 witnesses for the prosecution and 3 witnesses for the defence. You will have to consider all the evidence together. You will have to compare them and analyse them together. You have heard and watched the witnesses give evidence in the courtroom. You had observed their demeanour. Who do you think was forthright as a witness? Who do you think was evasive as a witness? Who do you think is the credible witness? Who do you think, from your point of view, was telling the truth? If you accept the prosecution’s witnesses as credible, and you accept their version of events, you must find the accused guilty as charged. If otherwise, you must find the accused not guilty as charged. It is a matter entirely for you.’
[33] I do not agree with the appellant’s contention. To me, paragraphs 4 and 41 deal with the burden of proof and standard of proof and there is no error at all. Paragraphs 2 and 40 of the summing-up deal with reliability and credibility of witnesses. Thus, this ground of appeal has no reasonable prospect of success.
[34] In any event, there is nothing to indicate that the counsel for the appellant had sought any redirections on the matters of alleged
non-direction or misdirection complained of. Therefore, the appellant is not even entitled to raise such points in appeal at this
stage [vide Tuwai v State CAV0013.2015: 26 August 2016
[35] Further, on what basis thellate court could interfere with the decision of the assesassessor and that of the judge in a situation like this has not been demonstrated by the appellant. In Sahib v State AAU0018u of 87sNovember 199r 1992 [1992] FJCA 24 the Court of Appeal said
‘8216;It has been stated many tiny times that the trial Court has the considerable advantage of having seen and heard the witnesses. It was in a better position to assess credibility and weight and we should not lightly interfere. There was undoubtedly evidence before the Court that, if accepted, would support such verdicts.
We are not able to usurp the functions of the lower Court and substitute our own opinion.’
[36] Therefore, there is no reasonable prospect of success in the appellant’s appeal against conviction and therefore, logically
no ‘very high likelihood of success’ exists either.
[37] The appellant has not demonstrated any exceptional circumstances to consider bail pending appeal independent of the above considerations.
Order
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
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