Fimone v Police [2010] CKHC 35; JP Appeal 07 of 2010 (7 September 2010)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

JP APPEAL NO. 7/2010
(CR NO. 261/10)

IN THE MATTER of Section 242 & 249 of the Crimes Act 1969 and Section 76(1) & (4) of the Judicature Act 1980-81

AND

IN THE MATTER of an appeal against conviction and sentence imposed by Justices of the Peace DORICE REID, TIKI MATAPO and TUINGARIKI SHORT on 19 May 2010

BETWEEN

AISAKE FIMONE
Appellant

AND

THE POLICE
Respondent

Hearing: 7 September 2010

Counsel: N George for Appellant
Snr Sgnt Tuaine Manavaroa for Respondent
A Newbigging for Probation Services

Judgment 7 September 2010

JUDGMENT OF HUGH WILLIAMS J

Solicitors:

G Norman, Norman George & Associates P.C., Avarua, Rarotonga
Snr Sgnt T Manavaroa, Police Prosecutor, Avarua, Rarotonga, Probation Officer Newbigging/Mrs A Elisaia, Probation Services, Rarotonga

[1] Mr Fimone has appealed against his conviction and sentence on a number of technical, but important, grounds. He was initially charged with stealing a lady's handbag from a visitor to the Cook Islands on 21 April 2010. The assertion was that he was one of a number of young men in and on a pickup truck who chatted to some tourists walking on the side of the road back to their accommodation, and that Mr Fimone leaned out of the cab and grabbed one of the tourist's handbags and the truck them decamped. His assertion is that his associates and he shared the proceeds.

[2] Mr Fimone was charged with theft and pleaded guilty on 19 May 2010. The Information sheet stated he had previously been remanded on bail on a number of conditions and according to the Information was "advised to seek legal advice". The very full and helpful pre-sentence report dated 17 May 2010 ultimately recommended that one month's imprisonment be imposed, plus 12 months' probation to follow because of the severity and prevalence of charges of thefts of the nature covered in the Information.

[3] According to Mr Fimone's notice of appeal he was denied the right to contact a lawyer whilst being processed at the Police station during interview and arrest, and accordingly pleaded guilty without the benefit of legal advice. Further, Mr Fimone says that about a week before his sentence he and his partner were advised by Mrs Elisaia, a probation officer, not to instruct a lawyer. He and his partner were both advised by Mrs Elisaia that it would be a waste of money and, in any event, the recommendation would only be for community service. As a result Mr Fimone said he did not contact a lawyer to act for him.

[4] It is also asserted that Mr Fimone was not given a copy of the probation report as required by s 5 of the Criminal Justice Act 1967, and it was only after being sentenced to one month's imprisonment by a three Justices of the Peace Court that he received a copy of the report and found, he says, he had been misled by the oral advice. Following his conviction and sentence he was released on bail at large until the appeal could be heard, that order being made on 25 May 2010.

[5] The Police submissions on appeal dispute a good deal of what Mr Fimone asserts, and a probation officer assisting Mrs Elisaia in the preparation of the probation report similarly disputes a number of technical issues. In light of that and the seriousness of the assertions made in the appeal, the only appropriate course, as Mr George counsel for the appellant accepts, is to give all three parties who were involved in the process leading up to Mr Fimone's sentencing the opportunity to give evidence and explain their participation in the events by cross-examination.

[6] In view of that the appropriate order to be made is that the appeal be adjourned for determination on the evidence from the appellant, the Police and the Probation Service. That would probably take a couple of hours of hearing time, and sufficient time should be allocated by the Registrar to enable the matters to be ventilated properly in order that the serious issues raised by the appellant can be decided and adjudicated upon, and a proper decision arrived at in relation to the appeal pending the outcome of that hearing.

[7] The appellant can remain on bail at large until the matter has been determined.

Hugh Williams J