Matairavula v State [2008] FJCA 110; AAU0033.2008S (25 June 2008)

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

CRIMINAL APPEAL NO. AAU0033 OF 2008S

BETWEEN:

PENI MATAIRAVULA
Appellant

AND:

THE STATE
Respondent

In Chambers: Andrew Bruce, Justice of Appeal

Hearing: Wednesday, 25 June 2008, Suva

Date of Decision: Wednesday 25 June 2008, Suva

DECISION

[1] The Applicant applies for leave to appeal against conviction and sentence following his trial before Govind J wherein he was convicted of two counts of robbery with violence and sentenced to 5 1/2 years imprisonment. That sentence was on each count, to be served concurrently.

[2] The application for leave to appeal against conviction is allowed on a limited basis. In Ground 1, the Applicant complained about two aspects of his conviction which was based on visual identification. He complains (as he complained at trial) that the second prosecution witness had described the accused as wearing a blue cap. This was pointed out at trial and Govind J correctly told the assessors that this was not part of the evidence. This may have appeared in the witness statement of the second prosecution witness. However that is not the effect of his cross examination of this witness. He also complains that the third prosecution witness had referred to the accused wearing a balaclava. Again, that was not the basis upon which this witness was cross-examined by the accused. Ordinarily the failure to cross-examine on a critical matter by a person who is unrepresented may not be taken very seriously as a matter of significance. However, on any view the cross examination was well-focused and may have revealed a not inconsiderable experience of the court system in view of the record of the Applicant. I would refuse leave on this ground.

[3] In Ground 2 of the appeal filed by the Applicant, he asserts that one of the assessors who tried his case was an ex-convicted prisoner and who had served this term at the same time as the Applicant (who has an extensive record of conviction is, some of which resulted in imprisonment) in Nasinu Prison in 1997. There is, of course, no evidence before the court of the fact that the assessor had been serving jail time at the same prison as the Applicant at the same time. The Applicant - unless the matter was conceded by the respondent Director of Public Prosecutions - will have to invoke the provisions of section 28 of the Court of Appeal Act if this is to have even the slightest hope of succeeding as a ground. I would stress that I seek to cast no aspersions on the assessor in question. However, if the allegation is made out to the satisfaction of the Court of Appeal then the court may have to consider two issues. The first requires that the court must ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. The second stage requires the court to then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.

[4] I would grant leave in respect of Ground 3 but not for the reason advanced by the Applicant in that ground. Had the Applicant had counsel at his trial and had he given him proper instructions about this matter, it may have been a matter properly determined at first instance without difficulty of having to determine the matter on appeal. He will need counsel to conduct this matter before the Court of Appeal given the enquiries which will have to be made.

[5] Application for leave to appeal against sentence is refused. Sentence was in the circumstances of the robbery the subject of these proceedings and extremely light sentence.

[6] Pursuant to section 35 of the Court of Appeal Act I recommend in view of the leave granted in respect of ground 2 that legal aid be granted to the Appellant.

(Andrew Bruce)
Justice of Appeal

At Suva
Wednesday, 25 June 2008