Court of Appeal of Fiji

[12] Qurai quoted Seniloli and Oth The &#16041 of 2004 (23 August 2004) where Ward Ward P hadP had said said

‘"The general restriction on granting bail pg app16l &#1b> as established by 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 circumstancest, turt cannot considonsider ther 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."

[13] 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 to that the existence of exceptional circumstances. A very high likelihood of success of the appeal would be deemed to satisfy the requirement 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.

[14] Further, 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.

[15] 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 he cannot then 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’.

[16] The learned trial judge had summarized the prosecution evidence as follows in the summing-up.

’16. The prosecution alleges that the accused together with the two others came behind the complainant and strangled him while he was walking along the Victoria parade in the night of 18th of May 2018. One of them squeezed his neck, while other one twisted his hand. The third person had put a cloth inside his mouth. The complainant had started to scream, asking for help. Then the three assailants took the wallet of the complainant and pushed him away. They then walked across the road. According to the complainant, this incidence lasted only two to three minutes. The complainant had then seen that one of the assailants was caught by some people who were at the other side of the road. The complainant had then approached them. One of the people, who caught the suspect, had asked the complainant whether the wallet that was found in the possession of the suspect belonged to him. That person was in a civilian dress. The complainant later came to know that he was a police officer. You may recall that the complainant explained in his evidence about the colour of his wallet and the items that were inside it.

17. Special Constable Romeo Nasila was the officer who arrested the accused at the scene of the crime on the 18th of May 2018. According to the evidence given by SC Nasila, he was walking towards to the Temptation night club as he wanted to talk to bouncers at the night club in respect of a murder investigation. While he was passing the Maya Daba restaurant, SC Nasila saw that three i-taukei youth were strangling an Indian man. They were near the Temptation night club. They were approximately 3 to 5 meters away from him. SC Nasila recognized those three i-taukei youth as Niko, Joeli and Tale Daulako. They are known faces to the Police as they used to roam around the town. SC Nasila had searched them many times when he was doing his night petrol before this incident. After few seconds, three of them left the Indian man and walked and crossed the road. Three of them went three different directions. He had observed this incident about five seconds. Time was around 9.45 p.m. There were street lights, verandah lights of the shops and the night clubs. You may recall that SC Nasila said that the place was brighter than the court house. There were people, walking along the verandah, but SC Nasila said that he had a clear view of this incident.
18. SC Nasila said that he went after Niko as other two went to different directions. When SC Nasila came close to the Suva City Library, he saw another i-taukei person had caught Niko and was punching on him. SC Nasila had approached them and asked them to stop the punching. He had introduced himself as a police officer and arrested Niko. He then took Niko to the corridor of the Suva Library in order to check him. While checking the pockets of the trousers of Niko, SC Nasila felt that something was in front of his underwear. He then found that it was a black colour wallet. SC Nasila had seen the driving licence of the complainant and his photographs inside the wallet. He then escorted Niko to the Totogo Police Station. You may recall that SC Nasila identified the accused as Niko.

[17] The appellant’s position had been one of denial but he had not given evidence at the trial.

Grounds of appeal

[18] The grounds of appeal urged by the appellant are as follows.

Grounds of appeal against conviction

‘(1) That the itaukei man was not brought to court nor any statement obtained from him.

(2) That the appellant was denied the opportunity to cross-examine the itaukei man, he should have been in court to say why he was punching or arresting the appellant.

(3) That the complainant failed to identify the appellant at the time of arrest when he was arrested by constable Romeo Nasila and the itaukei man gave him his wallet but claimed to positively identify him at Totoga police Station where he came to know the appellant’s name.

(4) That the learned trial judge failed to sum-up fairly.

(5) That the existing decree does not allow any disclosure of previous conviction during trial.’

01^st ground of appeal

[19] The appellant complains that the person who had caught him while fleeing the scene of the robbery before being handed over to the police officer had not been called by the prosecution to give evidence. From the above summary of evidence it is clear that there was no need on the part of the prosecution to call the person who had caught the appellant as the wallet containing the complainant’s driving licence and his photographs were found by SC Nasila in the appellant’s possession and they were later identified by the complainant.

[20] This evidence had been considered by the learned trial judge in his judgment as well. In addition, the police officer had clearly identified the appellant at close range as one among three persons trying to strangle the complainant before fleeing the scene in different directions.

[21] This ground of appeal has no merit.

02^nd ground of appeal

[22] This ground is closely connected to the first ground of appeal. While the person who arrested the appellant and punched him, if called, may have completed the ‘story’ there was no prejudice caused to the appellant by his absence as a witness in as much as the evidence of the complainant and SC Nasila was sufficient to prove the charge against the appellant. This ground too has no merit.

03^rd ground of appeal

[23] The complainant’s evidence at the trial had been that he could not identify any of the assailants. Whatever the complainant had done at the police station is immaterial. As far as the identification of the appellant by SC Nasila goes the learned trial judge had addressed the assessors on Turnbull guidelines in paragraph 33 of the summing-up. He had given his mind to the aspect of SC Nasila’s identification of the appellant in the judgment. The appellant does not appear to have challenged the evidence of SC Nasila on the basis that the complainant’s wallet was given to him by someone else, for example the man who arrested the appellant at the scene. The complainant’s evidence also shows that his wallet had been shown to him by a police officer in civilian clothes who later turned out to be SC Nasila when he approached where the appellant had been held by a group of people. This ground of appeal has no merit.

04^th ground of appeal

[24] The appellant had been represented by a senior counsel at the trial and he had not sought any redirections on the alleged non-directions or omissions in the summing-up on any of the points now raised by the appellant. Therefore, the appellant is not entitled to raise such points in appeal at this stage [vide Tuwai v State CA.2015: 26 August 2016 2016 [2016] FJSC 35 and

[2

[25] The summing-up is objective and well balanced and deals with all arequiring directions by the trial judge. The learned trial rial judge had addressed himself on all vital areas in his judgment as well in agreeing with the assessors. This ground of appeal is devoid of any merits.

[26] In R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 SCR 918 L'Heureux-Dubé J&;s dissenting view is a is also helpful in this regard.

‘ Courts have long frowned e the practice of raising new arguments on appeal. On those exonal cases wses wses where balancing the interests of justice to all parties leads to the conclusion that an injustice has done d courts permit nmit new grounds to be raised on appeal. Appealquestions of law law law alone are more likely to be received, as ordinarily they do not require further findings of fact. i/u> including a Charter challenge, fe first time onme on appeal0; first, there must be t be a sufficient evidentiary record to resolve the issue; second, it mus be an instainstance in whie accused for tactical reasons failed to raise the issue atue at trial; and third, the court must be satisfied that no miscarrif justice will result. In this chere has bees bees been no change in the substantive offence, the issue was not raised at t with the result that the record necessary for appellate rete review of the issue is unavailable, and there has been no denial of justice to the accused. The Court peal therefore pore properly concluded that no appeal on this new issue should be entertained.’

05^th ground of appeal

[27] The basis of this ground of appeal is the evidence of SC Nasila that he recognised the appellant and his accomplices because they were known faces to the Police as they used to roam around the town. The appellant argues that this ‘damaging’ piece of evidence had forced the assessors to arrive at an ‘unfair’ verdict against him. He cites the decision in Saqasaqa v State [2012] FJCA 52; AAU0116.2011 (28 September 2012) in support of his argument.

[28] In Saqasaqa it was held as follows.

‘3. With regard to the disclosing of the previous convictions, the applicant stated that the learned Judge had referred to him in his summing up to the Assessors as "a General of the criminal world". The learned counsel for the State submitted that it was not something prompted by the State. However an application was made for a redirection of the Asss. The Record does not bear such an application for a redirredirection and such redirection had not been made.

‘10. The applicant submitted that the trial Judge referring to the applicant as "General in riminal World"&rld" has caused aous miscarriageriage of justice. It appears that the assessors in this case have expressed their unanimous opinion that theicantguilty of the charges. Therefore considering ting the evidence led in this case, even ifen if one considers this as a misdirection, the applicant has failed to show that this appeal has every chance of success.’

[29] In this case the reference to the appellant and his accomplices as known faces as they used to roam around the city by SC Nasila was necessary to explain how he manged to identify the appellant in the act of strangling the complainant a few meters away. It has a solid evidentiary basis. It was not an embellishment or exaggeration to identify the appellant with any previous convictions. Saqasaqa would not apply to the appellant’s case.