Yaba v State [2005] FJCA 37; AAU0044.2002S (29 July 2005)

IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0044.2002S
(High Court Criminal Action No. HAC0010.2002L)

BETWEEN:

VIDALI YABA
Appellant

AND:

THE STATE
Respondent

Coram: Ward, President
Eichelbaum, JA
Gallen, JA

Hearing: Wednesday, 20 July 2005, Suva

Counsel: Appellant in Person
Mr D. Goundar for the Respondent

Date of Judgment: Friday, 29 July 2005, Suva

JUDGMENT OF THE COURT

[1] On 5 August 1996 persons broke into the house of a 76 year old lady at Vatukoola. They inflicted grievous injuries, from which she later died, and stole a number of her possessions. The appellant and three others were charged with her murder, and with robbery with violence. During the ensuing trial the Court discharged two of the accused, but the appellant and another were convicted on both counts. On 16 September 1997 they each received the mandatory sentence of life imprisonment for murder, and a concurrent sentence of 7 years on the robbery count.

[2] At the time, the appellant did not appeal, but on his application, on 24 November 2003 a single Judge of this Court extended the time for appealing and treated the application as one for leave to appeal as well as for leave to appeal out of time. Now before the Court is the appellant’s application for an order that the Court assign counsel for the purpose of preparation and conduct of the appeal, pursuant to s 30 of the Court of Appeal Act 1990.

[3] The critical evidence implicating the appellant was his own written confession. Without it, there could not have been any conviction. At trial, where the appellant was represented by counsel, the confession was challenged on the ground that it was involuntary, but following a voir dire, the Judge admitted the confession.

[4] In our words, the points which the appellant wishes to take on his appeal are:

1. the trial Judge wrongly admitted the caution interview;
   
2. the Judge failed to consider breaches of the appellant’s rights under the Constitution.
   
3. there should have been a direction regarding manslaughter;
   
4. there was no evidence of malice aforethought.
   

[5] When, at the hearing, the Court asked for particulars of ground (2), the appellant replied that he had been kept at the police station late at night and not provided with a meal. Thus the alleged breaches relate to ground (1).

[6] As to the principles governing a s30 application, we need only refer to the comprehensive decision of this Court in Peceli Masidole & ors v The State [2003] FJCA 60; Criminal Appeal AAU0021.2002S, 14 November 2003. As a preliminary matter, ordinarily the Court would expect that applicants had exhausted their remedies regarding legal aid. In this case, that has happened; legal aid was refused, and the appellant’s appeal against that decision was unsuccessful.

[7] The issue is whether it is desirable in the interests of justice that counsel be assigned. In a general sense, in serious charges such as here, that may often be the case. The appellant’s case is likely to be presented more competently with counsel, and the Court will be better able to focus on and decide the issues. However, as pointed out in Peceli, those last matters are not the only considerations. A conviction for murder, serious though it may be, is not necessarily something that the Court cannot deal with fairly and properly in the absence of representation for the appellant. As the Court noted in Peceli at [11]:

Section 30....is not a general legal aid provision. It merely provides a power to the Court of Appeal to ensure that proceedings before the Court are conducted fairly and properly.

And at [13]:

The discretion is one to be exercised sparingly and applicants will have to show that the interests of justice require the appointment of counsel. Simply because applicants have been convicted of serious crimes and advised to appeal will not be sufficient. In the normal run of cases lack of means coupled with a reasonable prospect of success (judged objectively and responsibly) will be prerequisites.

[8] Turning to the matters the appellant wishes to raise, points (1) and (2) face the difficulty that the ruling on the voir dire turned on findings of fact. As to (3) and (4), there is the problem of the severity of the injuries sustained by the victim, the alleged admissions by the appellant and the defence of alibi he ran at the trial. The prospects of success cannot be described as strong. But putting that aside, all the points are run of the mill issues in criminal appeals, involving familiar legal principles. While of course the Court would prefer to have the assistance of counsel for the appellant, it can fairly and properly consider the appeal without that help.

[9] Accordingly we decline the application with the consequence that the appeal should be listed for hearing at the next sittings of this Court.

Order

[10] The Courts declines the application for the appointment of counsel under s30 of the Court of Appeal Act 1990.

Ward, President
Eichelbaum, JA
Gallen, JA

Solicitors:

Appellant in Person
Office of the Director of Public Prosecutions, Suva for the Respondent