Waqa v State [2011] FJCA 32; AAU0004.09 (24 May 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
AN APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU 0004 OF 2009
[ High Criminal Action No. 87 of 2008]

BETWEEN:

ISOA WAQA
Appellant

AND:

THE STATE
Respondent

CORAM: Hon. Justice William Marshall, Justice of Appeal
Hon. Justice Izaz Khan, Justice of Appeal
Hon. Justice Daniel Goundar, Justice of Appeal

COUNSEL: Appellant in Person
Ms A Jinasena and Ms S Naidu for the Respondent

Date of Hearing: Monday, 16th May 2011
Date of Judgment: Tuesday, 24th May 2011

JUDGMENT

William Marshall, JA

1. The appellant Isoa Waqa was given leave to appeal by Acting President John Byrne against conviction on all grounds mentioned in his appeal application on 3rd December 2009 when the matter was before the learned Acting President. There was no written ruling.
2. The facts are that around 11.00 p.m. on the night of 29th April 2008 five men entered the home of Ms Bimla Wati in Nadera. They pulled an earring off her ear injuring her ear lobe. Some of them went and injured her younger son Rajesh Singh who is a patient at Saint Giles. She was robbed of jewellery worth $450. She and her son were taken for medical treatment at Nausori Hospital.
   
3. The evidence against Isoa Waqa was simple but extremely probative.
   
4. Isoa Waqa lives locally in Nadera not far from the home of Ms Ruci Uluilakeba who has been a teacher for 30 years and has lived there for 20 years. Her house is 10 metres away from that of Ms Bimla Wati. Ms Ruci on that evening was sitting on her porch drinking grog. There is a lamp post nearby and the houses themselves have exterior lighting. There is a footpath about 30 metres long that passes in front of her house and leads on to that of Bimla Wati.
   
5. At about 11.00 p.m. her evidence was that she saw Isoa Waqa and another guy walking along the footpath in front of her house. One of them was carrying a brown onion bag. When they passed she was five metres or so from them. The path leads to the house of Bimla Wati which is about 10 metres from her own house.
   
6. Two to five minutes later the witness heard the sound of breaking bottles. She could see Isoa and the other guy climbing up the concrete fence that surrounds Bimla Wati's compound. The witness then cried out using their names to Bimla and her son Jainend. The lights in the house then came on.
   
7. After the witness Ruci had returned to her porch Isoa and four other boys walked past away from the victim's house. She then called out in Fijian "What have you people done?" At this point Isoa was wearing a red T-shirt covering his head but not his face. The witness, Ruci, was sure it was him. Isoa then said "No one should come near or move otherwise someone will die". From the first moment she saw Isoa the witness said that the incident had taken about ten minutes.
   
8. The witness said she had known Isoa Waqa from birth and his family for twenty years. She played netball with Isoa's mother. Yet when Isoa came to cross-examine he said:
   

"Q. Suggest you are lying? I don't know you?

1. I know him. I know his parents, grandparents and his sisters. They only live 300 metres from me. When I came in this morning I greeted him and he responded.
   

Q. You did not greet me?

1. I did greet him.
   

9. When Isoa Waqa gave evidence on oath he did not suggest that Ruci Uluilakeba did not know him. Now he said, she was "mistaken" in identifying him.
   
10. Bimla Wati had told the court that the breaking glass sound of her window being broken woke her up. Then five Fijian boys came into her bedroom.
    
11. The evidence of the victim and the witness fitted well from the time at which the event happened, the length of time the robbery took from beginning to end, the sound of breaking glass, that there were five intruders and that the intruders left by climbing over Bimla Wati's concrete boundary fence. Isoa Waqa's defence was that he had been asleep at his home. His mother was in the house. His mother was called. She firstly said she had been sleeping during the relevant time. When it was suggested to his mother that Isoa could have slipped out of the house between 11.00 p.m. and 8.00 a.m. she then said "No, I was sitting with him because I was happy he was home".
    
12. Although in evidence he had said he was at home at the material time, when he was interviewed by police on 2nd May 2008 his account was:
    

"Q. If it was not you where were you at 11.00 p.m. on 29th April 2008?

1. I was in Suva City.

Q. Where about in Suva were you?

1. I was in Suva City.

Q. What were you doing in Suva?

1. To buy barbecue.

Q. Were you with someone?

1. No, I was by myself.

Q. Did you spend the whole night in Suva?

1. Yes.

Q. Did you meet any friends on that night?

1. No.

Q. Where were you in Suva on that whole night?

A. I went to Sukuna Park and bought one serving of barbecue and I spent the whole night at the Ritz Nightclub."

13. Later in the interview the following question and answer took place:
    

"Q. When did you come back home from town on 29th April 2008?

A. I wish to change my story on that date 29th April 2008. I was at home sleeping."

14. From the police officer attending the scene, there was evidence of broken bottles as well as a broken window.
    
15. Justice Shameem at trial summed up the matter to the assessors impeccably and when the assessors unanimously gave their opinion of "guilty" she then convicted Isoa Waqa saying that she accepted the evidence of Ms Ruci Uluilakeba as true and accurate.
    
16. Since the lighting was good and the accused was only five metres away when identified by someone who had known him from birth, there could be no complaint on identification. Madam Justice Shameem had fully and fairly put the matters relevant to identification to the assessors. Isoa Waqa on this appeal has not complained about any matter relating to identification.
    
17. On his appeal Isoa Waqa has claimed that the witness Ms Ruci Uluilakeba had made three earlier written statements. But he had cross-examined her about this and made no headway. Counsel for the State has told us that there were no material discrepancies. In any event this point was exposed to the assessors. Other than that Isoa Waqa tells this Court that she had had too much kava and her eyesight is not good. These matters she had fully answered when being cross examined.
    
18. By section 23 of the Court of Appeal Act, there is an appeal on the facts. But it is only where the Court of Appeal can say that the verdict is unreasonable in that it is, in the view of the Court, "obviously and palpably wrong". See R v. Hancox 8 Cr. App. R. 193
    
19. Here the weight of the evidence summarized above is overwhelming in favour of an opinion of "guilty". In my view the verdict was "obviously and palpably right". It was not suggested that Ms Ruci Uluilakeba held some grudge against Isoa Waqa whom she had known from birth. So why would she give this evidence unless it was the truth? She had witnessed everything around the actus reus of the crime except as happened within her neighbour's house. It was a serious crime against her neighbor Bimla Wati and her son. It was her duty as a citizen to come forward and she did.
    
20. The other complaint of Isoa Waqa is that he was not represented by counsel at trial. Any right to counsel is not an absolute right. Nor does this ground subsist easily with Section 23 of the Court of Appeal Act. Miscarriage of justice relates to events at the trial. In the common law world being unrepresented at trial whether by choice or refusal of legal aid or lack of means is a frequent happening. The wheels of the law around the common law world have to grind on relentlessly. There is a competing factor in that "justice delayed is justice denied".
    
21. The matter commenced in the Magistrates Court on 9th May 2008. After a few weeks Isoa Waqa elected a High Court trial and he was transferred in custody on 2nd June 2008. Madam Justice Shameem advised him to apply for legal aid on 4th July 2008. The same learned judge ordered him to be escorted to Legal Aid on 1st August 2008. On 19th January 2009 Isoa Waqa said he had lost his disclosures and was given a new set. On the day of trial 22nd January 2009 Isoa Waqa was asked about preparedness and he replied "Ready for trial".
    
22. On these facts I have no hesitation as dismissing this ground of appeal as unarguable.
    
23. During the appeal Isoa Waqa withdrew any appeal against the sentence of 8 years imprisonment concurrent with the sentence he was then serving. I say no more about the sentence except that it was within the normal range, was not excessive and was not wrong in principle.
    
24. In my view the appeal of Isoa Waqa against conviction and sentence should be dismissed.
    

Izaz Khan, JA

25. I agree with the judgment and reasons of William Marshall JA.
    

Daniel Goundar, JA

26. I also agree with the judgment and reasons of William Marshall JA.
    

William Marshall, JA

Orders of the Court

27. The orders of the Court are:
    

(1) the appeal of Isoa Waqa against his conviction be dismissed.
(2) the appeal of Isoa Waqa against sentence, having been withdrawn be dismissed.

....................................................
Hon. Justice William Marshall
Justice of Appeal

.........................................................
Hon. Justice Izaz Khan
Justice of Appeal

..........................................................
Hon. Justice Daniel Goundar
Justice of Appeal