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Adam v Republic [2021] NRSC 51; Criminal Appeal 7 of 2021 (14 December 2021)

IN THE SUPREME COURT OF NAURU CRIMINAL APPEAL NO. 7 OF 2021

CRIMINAL APPELLATE JURISDICTION District Court Criminal Case No. 4 of 2021

BETWEEN

ABWAEOR ADAM First Appellant

AND

YEMER AGIGO Second Appellant

AND

The Republic Respondent

Before: Khan,J
Date of Hearing: 8 December 2021
Date of Ruling: 14 December 2021

Case is to be known as: Adam and Agigo v The Republic

CATCHWORDS: Criminal Law – Application for extension of time to lodge an appeal – Section 40 of the Supreme Court Act 2018 provides appeal shall be filed and served within 21 days – Relevant consideration of extension of time is provided in section 47 of the Supreme Court Act.

APPEARANCES:

Counsel for the Appellants: F Akubor
Counsel for the Respondent: F Puleiwai

RULING

INTRODUCTION

1. Both the appellants were jointly charged with one count of intentionally causing harm contrary to s.74 of the Crimes Act 2016 (the Act). On 21 July 2021 Magistrate Lomaloma found both of them guilty of causing harm to Abron Duburiya and were sentenced to a term of 12 months imprisonment on 12 August 2021.
   
2. At the time of the sentencing the Magistrate stated that they each had 14 days to appeal against the conviction and sentence. S.40 of the Supreme Court Act 2018 provides:
   

Time for Filing Appeal or Application for Leave to Appeal

A person who seeks to appeal a judgement, decision or order of the District Court under this Part, shall file and serve a notice of appeal within 21days of the delivery of judgement, decision or order.

3. I wish to emphasise that an intended appellant has only 21 days to file and serve notice of appeal (emphasis added). If an appeal is filed within 21 days but served outside of the 21 days then the appeal would be incompetent for non-compliance of s.40 and would necessitate an application for extension of time under s.47 of the Supreme Court Act.
   
4. The application for extension of time was filed 88 days out of time. S.47 provides:
   

Extension of Time

1. The Supreme Court may extend the time for filing a Notice of Appeal beyond the 21 days.
   
2. The Supreme Court may extend:
   
   1. if the intended appellant is able to show good cause for such an order to be granted;
      
   2. in a case where the legal representative engaged by the appellant was not present at the hearing before the District Court and for that reason requires further time for the preparation of notice of appeal; or
      
   100. where there is an error of law.
        
5. Under s.47(2) the appellant has to show good cause for an extension to be granted, that the legal representative engaged by the applicants was not present at the hearing before the District Court and lastly that there is an error of law on the part of the District Court.
   

WHAT IS GOOD CAUSE?

6. In DPP v Jeremiah and Others^[1] Eames J. in discussing good cause stated at [15], [18] and [19] as follows:
   

[15] Section 5(1) of the Appeals Act 1972 permits the Court to enlarge the time for appeal beyond 14 days for “good cause”. Without limiting the scope of that phrase s.5(2)(b) provides that there will be “good cause” if the case is one “in which a question of law of unusual difficulty is involved”.

[18] I agree that each of the matters raised by Mr Tolenoa is significant and militates against granting leave. One the other hand, I accept that the Resident Magistrate’s careful and comprehensive judgement identifies what are some uncertain areas in the law concerning the powers of the police. Whilst the law might not be “unusually difficult”, it is by no means simple. There have been discernible differences in the approach of the English and Australian Courts as to the weight to be given, respectively, to the rights of enjoyment of private property and the powers of police as to the control of crime. Furthermore, by examining these principles in the context of a case which shows the potential for confrontation in the circumstances where the police do not know the limitations of their power, the Court may be able to provide guidance for citizens and police alike.

[19] The notion of “good cause” should not be narrowly interpreted, or confined by strict rules. What matters overall are the interests of justice: see DPP v Ciccolini^[2]; R v McBride^[3].

7. In DPP v Ciccolini and Others it was stated at [25] and [26] as follows:
   

[25] The circumstances which arise for consideration on applications under s.590 are infinitely variable or virtually so. For reasons explained in the above passage for the reasons in Witten v Lombard Australian Ltd, it is undesirable to attempt to define what may constitute “good cause”.^[4] It is desirable also to resist the temptation to devise lists of relevant considerations lest they may be perceived as quasi rules to be applied on the hearing of such applications.

[26] A court’s role on the hearing of such an application is to determine on the facts before it whether it is satisfied that good reason has been shown for the requested extension of time. If satisfied that good reason has been shown and that no miscarriage of justice is likely to result, it may grant the extension it considers just.

8. In R v Tait^[5] it was stated at [5] as follows:
   

[5] The recent approach of this Court to the question of extending time in criminal appeals is sufficiently illustrated in R v Mentink^[6]; and a number of unreported cases in this Court^[7]. These suggest that the Court will examine whether there is a good cause shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. This may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the court will often find it appropriate to make some provisional assessment of the strength of the appellant’s appeal^[8] and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals, this is not often a live issue. Another factor is the length of the delay, but it being much easier to excuse a short than a long delay. (Emphasis added)

REASONS FOR THE DELAY

9. The reasons for the delay in the applicants making this application for extension of time was that they were getting advice from fellow inmates and family members which caused them confusion. When they contacted the Office of the Public Legal Defender its advice was that it was entirely a matter for them to make the decision as to whether to appeal or not, however, they were ready to assist with the appeal. It is not clear as to when the Public Legal Defender’s Office was consulted but Mr Lee of the Public Legal Defender’s Office represented the applicants in the trial before the District Court and he is still with the Public Legal Defenders Office, so he did not require further time for the preparation of the appeal.
   

JOINT ENTERPRISE

10. Miss Akubor submitted that the Magistrate appears to have made an error in his discussions regarding joint enterprise. The first applicant admitted to punching the victim and he fell to the ground and as he lay on the ground the second appellant admitted to striking him with a steel rake and the Magistrate made those findings at [48] of his judgement, however, before he made those findings, he discussed the principle of joint enterprise. But he concluded that there was no joint enterprise and the two assaults followed each other which made the applicants joint offenders. This finding is consistent with s.92(d) of the Criminal Procedure Act 1972 which states:
    
    • (1) The following persons may be joined in one charge or information and may be tried together, namely:
      

(d) persons accused of different offences committed in the course of the same transaction;

11. Ground one is the main ground of appeal whilst grounds two, three and four deal with the elements of the offence and the burden of proof. The elements of the offence were adequately dealt with by the Magistrate and the question of burden of proof does not arise as both applicants admitted under oath to assaulting the victim and raised the issue of self-defence which was dealt with by the Magistrate and rejected.
    
12. The proposed grounds of appeal cannot be described as “promising” as discussed in Tait at [11] and the delay in making this application is inordinate and the reasons for the delay is inexcusable, in that, the applicants were seeking the assistance of inmates and their family members instead of seeking the advice of their lawyer from the Public Defender’s Office.
    

CONCLUSION

13. In the circumstances the application for extension of time is refused.
    

DATED this 14 day of December 2021

Mohammed Shafiullah Khan
Acting Chief Justice

^[1] [2011] NRSC 14; Criminal Appeal No. 1 of 2011
^[2] [2007] QCA 336
^[3] [2011] QCA 25
^[4] See also the observation of Lord Brandon of Oakbrook in Kleinwort Benson Ltd v Babrak Limited [1987] AC597 at 622, 623
^[5] [1999] 2QD R 667
^[6] [1996] 1QD.R.532, 536-537, 542; cf. R v Lewis [1999] 2 Qd. R 636
^[7] R v Porter (C.A. No. 160 of 1997, 26 May 1997) especially per Davies J.A. and McPherson J.A.; R v Wolfven (C.A. No. 376 of 1997, 28 November 1997); R v Tatnell (C.A. No. 42 of 1996, 13 March 1996); R v Doyle (C.A. No. 70 of 1996, 2 May 1996)
^[8] Compare Kolalich v D.P.P. (N.S.W.) [1991] HCA 47; (1991) 173 C.L.R. 222, 228; Gallo v Dawson (1992) 66 A.L.J.R. 859, 860