Taiwaluwalu v State [2011] FJCA 5; AAU0029.2009 (7 February 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS

CRIMINAL APPEAL NO.AAU0029 OF 2009

BETWEEN:

TOMASI BULI TAIWALUWALU
Appellant

AND:

STATE
Respondent

Coram: Hon. Justice William Marshall, Justice of Appeal
Hon. Justice Kankani Chitrasiri, Justice of Appeal
Hon. Madam Justice Anjala Wati, Justice of Appeal

Date of Hearing: Tuesday, 21st September 2010

Counsel: Appellant in Person
Ms N. Ratakele for the Respondent

Date of Judgment: Monday, 7th February 2011

JUDGMENT

William Marshall, JA

1. By the Criminal Appeal Act, Chapter 12, Section 23 (1) (a) the court shall only allow an appeal in certain circumstance.

Section 23 (1) (a) says:

"(a) on any such appeal against conviction shall allow the appeal if they think that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal..."

2. So there are three situations in which an appeal against conviction after trial before the High Court and assessors can be allowed.

They are:

1. That the verdict is unreasonable or cannot be supported having regard to the evidence.
   

Or

2. That the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law.
   

Or

3. That there was a miscarriage of justice.
   

3. However the Court of Appeal can dismiss the appeal if they consider that no substantial miscarriage of justice has occurred.

4. The proposition for debate is whether or not in respect of Tomasi Buli, one of three alleged perpetrators, there was, at trial, sufficient evidence to satisfy the assessors and the judge beyond reasonable doubt that, on 30th September 2007 after 5 p.m. at Manoca Mobil Service Station, Tomasi Buli in a joint enterprise with two others, robbed two service station attendants, Ms Ashika Chand and Mr Rajneel Amitesh of $478.05 cash, properties amounting to $962.73 and an Alcatel Mobile phone worth $279. These victims did not identify Tomasi Buli and did not give evidence at trial. Individually by the action of one of the three joint enterprise alleged perpetrators these two persons were each threatened by an alleged perpetrator holding a kitchen knife and demanding their submission to their property or property in their custody being taken or else the knife would be used to injure them.
5. There is no information on how the two accused persons at trial came to sign admitted facts that read:

"(i) that a robbery took place at Manoca Service Station on 30th September 2007;

(ii) that both accused persons, Tomasi Bulitaiwaluwalu and Kolinio Vueti, reside at Tuirara Subdivision, in Tovata.

(iii) that Ashad Iftikar Hussein s/o Aiyub Hussein of Lot 29 Caubati, Van Driver based at Makoi, was a victim in this robbery. It is further agreed that his van was used in the robbery, after he was forcefully removed off his vehicle;

(iv) that Rajneel Amitesh Maharaj s/o Subhas Maharaj, bowser attendant was another victim in the same robbery. It is further agreed that cash belonging to Manoca Service Station was taken from the said Rajneel Amitesh Maharaj in the same robbery, together with a mobile phone;

(v) that Ashika Chand d/o Moti Chand of Kasavu, Nausori, cashier was also a victim in this robbery. It is further agreed that cash and some items were stolen from her during the robbery.

Since there is no evidence on the matter it has to be assumed that both accused representing themselves were properly approached and freely and fairly agreed to sign these admitted facts.

6. While the robbery of the 7 seater white van driven by Mr. Ashad Iftikar is not charged Mr. Ashad Iftikar was correctly called to give evidence. He said as recorded in the Court record:

"PW1 Ashad Iftikar,

Oath Van Driver

Taken Newtown, Stage 2, Caubati

I have been a van driver for 2 years. I am stationed at 8 miles. I drive EV793, white van 7 seater. I reach Form 4 level education. The van belonged to my father. I recall 30/9/07, at 4pm, I was at my stand. A guy hired my van. I took him to ATG 8 miles, and I picked another guy. We went to ATG, where I stopped. One was in the front and one was in the back.

The guy on the back put a small knife on my neck. They started to punch me. The one in the front came to me and we fought. He got me and put me in the van. They drove away. I later fell out of the van. They drove the van towards Nausori. I saw their faces. I could i.d. them. They are in Court today.

[PW1 points at Accused No.1 & 2 in the dock]

Cross-Examination by Accused No.1

1. Accused No.1 hired me.
   

Q. You are lying in Court?

A. These two robbed me. I recognize their face. I am not lying.

Q. I don't know how to drive?

A. He drove it from there.

Cross-Examination by Accused No.2

1. He was also in my van at the time. I've been driving van for 2 years. I recognize you. I couldn't recognize your clothes, but recognize your face.
   

Q. You are lying?

A. I am not lying.

Re-Examination: Nil."

7. Immediately after the robbery, Mr. Jai Nanel Prasad the supervisor for Carpenters Motors at Manoca Service Station attended at the scene. He gave evidence as follows:

"PW2 Jai Nand Prasad,

Oath Supervisor, Carpenters Motors,

Taken Verata, Nausori

I've lived in Verata for 10 years. I am a supervisor. On 30/9/07, at 5.45pm, I was at home. I received a call that a robbery occurred at my site. I called Nausori Police. I came to Manoca Service Station. The police were there. My staff were outside i.e. Ashika Chand and another Service Station attendant. Forgot his name. I did a stock take to verify things stolen. We recorded it.

I made a statement with police. [Statement given to PW2 to peruse]. This is my statement [refresh his memory by reading it]. Total items stolen amounted to $962.75]. I was later called to Nausori Police Station to i.d. stolen properties i.e. 1 pair of battery.

Cross-Examination by Accused No.1

1. Telecards worth $50, chocolates valued at $13, cigarettes valued at $108, $67.50, $55.20, $90 BH and Rothman cigarettes, batteries, condom, chocolate, more cigarettes, Pall Mall and Dunhill, twisties, cash $78.05 were stolen. All the above items were stolen.
   

A. I don't know who stole the properties.

Cross-Examination by Accused No.2

1. I did a stock take and I was told by my cashier of the items stolen, that's how I know the items stolen.
   

A. 5 pairs of batteries were missing and 1 was recovered.

1. The items were not recovered.
   

Re-Examination: Nil."

8. Then there was the evidence of a Senior Instructor in the army. He tells of a white van speeding fast followed by a police vehicle when he was returning home to Davuilevu from Nakasi. His evidence is:

"PW3 Nemani Yavita Toga,

Oath Soldier

Taken Davuilevu Housing

I've been an army officer for 22 years and I'm stationed at ATG. I am a senior instructor. I've lived at Davuilevu for 15 years. I recall 30/9/07, at 5.45, I was going home from Nakasi, through Adi Davila Road. Near Abbattoir Road, I saw a white van speeding past, followed by a police twin cab, in the same direction. I followed the police in my vehicle.

We reached Cargill Road, I saw a white van travelling in the same direction. The police cab went left. I called out to them to follow me. We reached Tuilovoni Road. We saw a white van and parked next to it. I saw 2 men. Another one flees. I ran to the van. There was a fight. The 2 men ran after the one that had fled. I called out "Butako! Butako! Butako!

My neighbours came and pursued the men. We later got hold of the men. We fought again and brought the 2 men to the main road. I told my driver to look for the police, to hand over the 2 men. The police arrived. I hand the men over to the police. I then returned home.

I had a good look at the 2 men. I know the 2 men. I could i.d. them. They are in Court today and they are accuseds in the dock.

[PW3 points at accuseds in the dock]

Cross-Examination by Accused No.1

1. We met near the van. They punched me and I punched back. There were 4 to 5 police officers.
   

A. I could recall we had a fight near the van. I could punches thrown at me. I captured you near the van. They didn't want me to reach the person fleeing with the money, that's when we had a fight. Your actions showed there's something being stolen. They blocked the driveway, to prevent people assisting.

A. We had a fight beside the van.

Cross-Examination by Accused No.2

1. The police went in the wrong way. I called for the police to come.
   

A. I'm saying what I can recall. I captured Accused No.1. Your actions when driving the van looked like you committed a robbery, or going for a sick person.

Q. You are lying in Court?

A. I am telling the truth.

Q. I was not part of the robbery?

A. You were at the crime scene at the time.

Re-Examination: Nil."

9. Finally, in this sequence there is the evidence of Savenaca Rokoraua a police officer giving chase.

"PW4 SC 1000,

Oath Savenaca Rokoraua,

Taken Nausori Police Station

I have been in the police for 3 years. I'm based at Nausori Police Station. I reached Form 7. I recall 30/9/07, doing 7am to 7pm police shift. At 4.45pm, we received a robbery report at Manoca Service Station. I was on patrol in a police vehicle with PC Qio and PC Leweni. We were told a white van EV793 was involved in the robbery. At Nakasi, we saw the van coming from Nausori. PC Qio made a u-turn and we followed the suspect vehicle.

The white van went to Davuilevu Housing. We followed it. We searched for it. We came to Tuilovoni Road and saw the van there, with a lot of the public crowding there. We saw 2 Fijian males being arrested by the public. An army officer brought the 2 to us. They were slightly injured on the face and blood on their shirt. They had small bruises on the face. We re-arrest the 2 males and took them to Nakasi Police Station.

They tried to seek forgiveness from us for what they have done. They said, they were involved in the robbery at Manoca. They were put in the back and PC Leweni sat with them. They were taken to Nakasi Police Station. They were not assaulted, threatened or made promises on their way to Nakasi Police Station.

At Nakasi Police Station, we handed him to the duty police officer. One is still on the run. We return to the scene. It took us 5 minutes. We return to Nakasi Police Station and escorted both accused to Nausori Police Station. We didn't assault, threaten or made any promise, while they were in our custody. They didn't complain of any pain, or asked for doctors. At Nausori Police Station, we handed them over to the duty police officer.

I remember the two's face. They are in court today.

[PW4 points at accuseds in the dock]

Cross-Examination by Accused No.1

17. Is it true that I sought forgiveness?
1. Yes.
17. Did I steal from Manoca at Nausori?
1. I was not at the service station at the time of the robbery.
   

Q. You told the truth?

A. Yes, I am telling the truth.

Cross-Examination by Accused No.2

17. What proof do you have?

A. It's the information we received.

Q. I didn't ask for forgiveness?

A. You asked for forgiveness, because you were assaulted by the public.

1. I didn't assault you. I didn't spray your eyes.
   

Q. You are lying?

A. I am not lying. I'm telling the truth.

Re-Examination: Nil."

10. Then there is the statement to police admitted in evidence of Tomasi Buli, on to give his full family name Tomasi Bulitaiwaluwalu. He says and it is relevant of the assessors and the trial judge found that it was voluntarily obtained and that the admissions were truthful. The following parts of the statement are relevant. They were said the next day (1st October 2007) at around 3.30p.m

"I am DC 3015 Inoke Leweni and I am based at Nausori Police Station under the CID and I wish to question you Tomasi Buli Taiwaluwalu in regards to an allegation that you and two (2) others of your accomplice stormed into Mobil Station by using a kitchen knife and stealing from therein: Cash - $478.05, 1 x Alcatel M/Phone - $279.00, 1 x $10.00 Telecard - $10.00, 2 x $20.00, Telecard $40.00, 5 x 55g Milk Chocolate - $13.00, 45 x BH10 - $108.00, 15 x BH20 - $$67.50, 23 x Rothmans 10 - $55.20, 20 x Rothman 20 - $90.00, 5 x Vicks Drop Lollies - $12.50, 5 x Large Eveready Batteries - $10.50, 2 x Condoms - $2.00, 9 x Kit Kat Chocolate - $20.70, 6 x Four Finger Kit Kat - $13.20, 7 x 55g Milk bar - $14.00, 3 x Pall Mall 10 - $6.00, 1 x Dunhill 20 - $4.60, 5 x 250g Twisters - $17.50 all to the total value of $1,241.75, the property of Mobil Service Station, Manoca. You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and can be given in evidence.

Q.5 Do you understand the above allegation being put to you?

A. Yes. I fully understand.

Q.6 Can you sign your name to acknowledge that you have fully understood the above allegation?

A. Yes. Sign: Tomasi. B Witt: DC Leweni

Q.7 What can you say about the allegation?

A. I wish to say that I admit that we robbed the Service Station but we did not take all the items that have been mentioned. ...

...Q.11 Where were you at about 5.45pm yesterday afternoon (30/9/07)?

A. I was at the Mobil Service Station, Manoca.

Q.12 What were you doing there?

A. I was there with my younger brother namely Kolinio and our cousin Niumaia to rob the service station.

Q.12 Did you manage to rob the service station then?

A. Yes. Sign: Tomasi. B Witt: DC Leweni ...

Q.14 How many of you entered the Service Station?

A. Only two of us.

Q.15 Who are they?

A. My younger brother, Koli and Niumaia.

Q.16 Where were you when they were inside?

A. I was sitting at the back of the van.

Q.17 What van are you talking about?

A. The van we stole from Makoi and use it in this robbery.

Q.18 What type of van is this?

A. White Toyota Townace.

Q.19. What is its registration number?

A. I do not know.

Q.20 According to Koli you were standing outside the van. What can you say in this?

A. No, that is not true.

Q.21 According to the two(2) staff they stated that three of you entered the Service Station. What can you say in that?

A. No, that is not true.

Q.22 Who threatened the male Indian staff of the Service Station with a kitchen knife?

A. I did not see exactly as to whom out of the two (2) that went inside threatened staff.

Q.23 What are the things that you saw whilst you sitting inside the vehicle?

A. I just saw the front door. ...

...Q.26 I wish to put to you that you were found to be in possession of this Alcatel Mobile Phone (shown to Tomasi). What can you say in this?

A. No, that is not true.

Q.27 Then how come the Mobile Phone (Alcatel) was in your possession when you are searched?

A. As we left the Service Station in that white van, Niumaia then showed me the Alcatel phone and said that he stole it from the male Indian staff, I then asked for it just to use and when he gave it to me, I then kept it.

Q.28 You mean to say that Niumaia is the one that threatened that male Indian staff and demanded money and the Alcatel mobile phone?

A. Yes, that is true.

Q.29 If Niumaia threatened the male Indian staff with the kitchen knife then what you are trying to say is your younger brother Kolinio also threatened the female Indian cashier with another kitchen knife and also demand money from her which she gave. What can you say in here?

A. Yes. That is true.

Q.30 Where all the money and the items that you people stole from the service station?

A. It was inside the bag that Niumaia had run away with.

Q.31 Take a look at this one(1) pair large Eveready battery (shown to Tomasi) is this the one that you stole from the Service Station?

A. Yes, it is.

Q.32 Take a look at this kitchen knife (shown to Tomasi) is this the one that you people use to threaten the two (2) Indian staff at the Service Station and demanded them money, Mobile Phone and other items?

A. Yes, that is the one.

Q.33 Can you tell me who in particular was using it?

A. One of this two(2) that went inside. ...

...Q.37 Did you know what you did at the Service Station and stealing the radio from the van was an offence?

A. Yes.

Q.38 Then why did you people do it?

A. We were looking for money.

Q.39 Who mastermind the robbery?

A. Myself."

11. Finally there was evidence before assessors and the learned judge that when charged on 1st October 2007 at around 6 pm Tomasi Buli replied:

"Yes I understand and had admitted both the charges against me as I had committed this with my two accomplices."

12. The chain of events, all admissible as part of the res gestae, involve three men one of whom is Tomasi Buli in a "taken", by force, white seven seater Toyota Van registration number EV 793. Its progress is followed from the taking of it by force from Ashad Iftikar at "ATG". It is clear from admission (i) and (iii) that EV793 was used in the robbery at Manoca Service Station. The evidence of the soldier Mr. Toga and the policemen Mr. Rokoraua show the progress of EV793 to Tuilovoni Road from where three men were chased by civilians (including Mr. Toga). One of the three escaped but the two, who were later the two accused on trial, after two fights, were handed over to police. Mr. Ashad Iftikar identifies Tomasi Buli as one of the two involved with EV 793. Soldier Mr.Toga, identifies Tomasi Buli as one of three involved with EV793 after the Manoca service station robbery. Then when Mr. Toga and others return to EV793 with two persons one of whom he identifies as Tomasi Buli they are immediately handed over to police officer Rokoraua who gives evidence that one of them was Tomasi Buli who along with his co-accused tried to seek forgiveness and admitted that they were involved in the robbery at Manoca. Officer Rokoraua then took the two men to the police station.

13. In the above, there is ample and full evidence as to the identify of two of the three men who robbed Manoca Service Station. Yet at the trial it was put that the gap in the prosecution case as to who committed the robbery was only filled by the admissions in the interviews under caution. This is not so; there was compelling circumstantial evidence that the two accused were the two men out of three robbery suspects who took over EV793 by force, and were, after a robbery, subject to a citizens' arrest at Tuilovoni near where EV793 was parked. Also that they admitted spontaneously to Officer Rokoraua what they had robbed and that they were involved in the robbery at Manoca. It was all within a short space of time. There cannot be two 7 seater white vans with the registration number EV793. There cannot be two robberies at Manoca Service Station involving EV793 in the same short period of time.

14. There is ample evidence of what was stolen from Ms. Ashika Chand and Mr. Rajneel Amitesh Maharaj

1. There is the "agreed facts" at (iv) and (v) which leaves no doubt as to the identities of the two victims of robbery at the Manoca Service Station.
   
2. The same agreed facts agree the items that were stolen from the two victims of robbery at Manoca Service Station.
   
3. As to the items robbed there is good and detailed evidence from the Supervisor at Manoca Mr. J N Prasad as to what goods were removed from the shop. He attended immediately and by making a stock check was able to value these goods at $962. He was also able to list the varied items taken. When he attended, Ms Ashika Chand and the attendant whose name he forgot when giving evidence but who must have been Mr Rajneel Amitesh Maharaj were standing outside in the service station.
   
4. There is the admission under caution where the whole list of items resulting from Mr. J N Prasad's stock check are put to Tomasi Buli. His response was that he admitted that with others they robbed the service station. His only qualification was as to "the items" and not as to the cash. The qualification was:
   

"we did not take all the items that have been mentioned"

It was open to the assessors and to the Trial Judge to find that Mr. J N Prasad's stock check was a "more reliable list of what items had been stolen and what the value was than the statements of the two defendants.

5. There is also the admission at being charged on 1st October 2007 all the items and cash as well as the mobile phone – all with values stated – were read out by Detective Sergeant 1036. Tomasi Buli responds:
   

"Yes I understand and have admitted both the charges against me as I had committed this with my two accomplices."

15. The elements of the offence of robbery, although expressed slightly differently in England are set out under the Theft Act 1968 Section 8 which state"

"A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subject to force."

I set this out because it shows the necessary requirements for the use of force. The element of using force is the same for robbery with violence in Fiji.

16. The evidence proving that stealing is enabled by the use of force or violence, with particular reference to the events at Manoca Service Station in the early evening of 30th September 2007 is now set out.

(i) The agreed facts at (iv) and (v) say that persons robbed at the service station on 30th September 2007 were "victim(s) in this robbery". That means that the offenders, and this was a joint enterprise involving three persons, "robbed" both persons with violence. So it is an agreed fact on which the assessors or the Trial Judge can act that Ms Ashika Chang and Mr. Rajneel Amitesh Maharaj were separately persons on whom either force was used, or were put in fear of being then and there subjected to force, and this was done immediately before or at the time of stealing the property.

(ii) In my opinion these are necessary inferences from the agreed facts. However the actual use of force is clarified in Tomasi Bula's caution statement.

(iii) In his caution statement Tomasi Buli admits that it was a joint enterprise in which he was the mastermind. He agrees that his younger brother Kolinio threatened the female cashier with a kitchen knife at the service station demanding money from her. He also agrees and admits that his cousin Niumaia used another kitchen knife to threaten the male Indian staff and demanded money and his Alcatel mobile phone.

(iv) From the evidence before the assessors and trial judge there is no doubt that the female cashier referred to is Ms Ashika Chand and the male Indian Staff is Mr. Rajneel Amitesh Maharaj.

(v) There are the further admissions of robbery to Officer Rokoraua at the time of arrest and to Detective Sergeant 1036 at the time of charging. These are referred to in detail above.

17. There is nothing in our criminal law that requires the victims to give evidence in person. If the victim is killed then almost invariably no evidence from them is given at trial.

18. If it is necessary to prove that the victims were put in fear and their will was overborne it can be inferred from the evidence in the case. In this case, without their testimony in the trial, the evidence justifying the inference that they were put in fear and their will was overborne was overwhelming.

19. In my judgment there was substantial evidence at trial on the issues of what property was stolen from the two staff members at the service station. Also there was substantial evidence that both staff members were threatened with kitchen knives at the time their own or their employers' property and cash were demanded. If it is necessary so to find I would also hold that there was substantial evidence at trial on the issue of whether the staff members were put in fear and had their will overborne.

20. In my judgment I would answer the question posed at paragraph 4 above as "yes".

21. That being so I would hold

1. that the verdict is reasonable and can be supported by the evidence.
   
2. that there were no wrong decisions of law at trial and
   
3. that there was no miscarriage of justice in respect of the conviction of Tomasi Buli also more properly named as Tomasi Buli Taiwaluwalu.
   

22. I agree with the judgment of Kanikani Chitrasiri JA on all the other points raised.

23. In my view the appeal should be dismissed.

Kankani T. Chitrasiri, JA

24. This is an appeal filed by the Accused Appellant, namely Tomasi Bulitaiwaluwalu against the conviction imposed on him pursuant to an opinion of the Assessors and a conviction by the trial judge dated 30th September 2009. The appellant was found guilty on two counts and was sentenced to eight years imprisonment on each count. Two periods of imprisonment were to run concurrently. Consequently, Appellant had filed this appeal on the 15th October, 2009 against the said conviction. In that appeal, following grounds of appeal had been raised. However, the appellant subsequently filed another application and had moved that leave of court be granted to file additional grounds of appeal.

25. The aforesaid grounds of appeal are reproduced herein below:

"1. Reliance was based on the prosecution side. At page H.16 in the Learned Judge's summing- up that the prosecution case was fatal due to non-availability of the two complainants (Ms Ashika Chand and Mr Rajneel Amitesh Maharaj).

2. Learned Judge proceeded on the basis of a somewhat "Parties agreed facts". The learned judge, on 16th September, 2008 stated that the prosecutor, the two accused and the court agreed to part (l) to (v) of paragraph 17 of the same page (H) of the learned Judge summing -up. It is clear from my statement that I had completely denied knowing anything about the allegation or Robbery with Violence upon the said complainants and this would raise the question as to why I agreed for the court to proceed as stated in the summing-up.
   
3. The learned judge proceeded on copies of the original record which was misplaced. It was wrong to proceed to a somewhat agreed fact when no one testifies to make the allegation become "facts".
   
4. The assessors were driven on misleading facts in the summing-up. The elements of stealing the complainant's properties, and the use of violence to effect the theft to constitute the offence of Robbery with Violence was not proved.
   
5. The learned judge put to the assessors my confession which he failed to warn himself on the admissibility of the outcome of the trial within a trial. It is evident that all prosecution witnesses even (PW) 7, admitted on oath that I sustained bruises and bleeding before the interview. It was the responsibility of the Police Officers concern to refer me to hospital despite their claim that I did not want to be medically seen.
   
6. I am in no doubt my lord, if prosecution witness Ms Ashika Chand and Mr Rajneel Amitesh Maharaj were called at the trial and they would tell the court that none of us had robbed them.
   

Grounds of appeal filed subsequently

7. The learned trial judge erred in law and in fact when his Lordship wrongfully admitted evidence of photo copied caution and charged interview statements.
   
8. That the appellant's right to a fair trial was prejudiced from lack of legal representation and/or competent counsel."
   

26. Consequently, this matter was argued before this Bench on the 21st of September 2010. On that date appellant was unrepresented whilst the state was represented by Ms. Ratakele. At the arguments, the appellant filed further written submissions and said that he was not making oral submissions. Learned counsel for the respondent having made a short submission also invited Court to make an order on the strength of the written submissions that the parties have filed.

Background

27. The State filed two charges in the High Court sitting in Suva against Tomasi Bulitaiwaluwalu [Appellant-Accused] and Kolinio Vueti, pursuant to an investigation made upon information alleged to have received by the police officers who were on patrol duty on the 30th September 2007. The charges filed against them were under Section 293 (1) (d) of the Penal Code. (Chapter 17)

28. In the two charges filed by the Director of Public Prosecution, it was alleged that on the 30th day of September 2007, the appellant along with the said Kolinio and another, robbed Ashika Chand and Rajneel Amitesh Maharaj, of the property and cash mentioned in the aforesaid charge sheet which has the heading "information by the Director of Public Prosecutions".
29. When the trial was commenced on the 16th of September 2008, five matters were recorded before Hon. Madam Justice Shameem, as facts agreed by the parties. Accordingly, the facts mentioned herein below were not in dispute.

"1. It is agreed that a robbery took place at Manoca Service Station on 30.09.2007.

2. It is agreed that both accused persons Tomasi Bulitaiwaluwalu and Kolinio Vueti reside at Tuirara sub division in Tovata.

3. It is agreed that Ashaid Iftikar Hussein s/o Aiyub Hussein of Lot 29 Caubati, Van driver based at Makoi was a victim in this robbery. It is further agreed that his van was used in the robbery after he was forcefully removed off his vehicle.

4. It is agreed that Rajmeel Amitesh Maharaj, s/o Subbhash Maharaj, bowser attendant was another victim in the same robbery. It is further agreed that cash belonging to the Manoca Service station was taken from the said Rajmeel Amitesh Maharaj in the same robbery, together with a mobile phone.

5. It is agreed that Ashika Chand d/o Miti Chand of Kasavu Nausori, cashier, was also a victim in this robbery. It is further agreed that cash and some items were stolen from her during the robbery."

30. Having proceeded with the trial, Assessors opined that the aforesaid accused was guilty of both charges. Thereafter, the learned High Court Judge convicted the appellant and imposed the sentence mentioned hereinbefore on the accused appellant.

Analysis
31. Grounds of appeal bearing Nos. 1, 2 and 6 refer to the ingredients that are necessary to prove the charges against the accused whilst the rest of the grounds refer to the issues of law that are to be considered concerning criminal proceedings. I shall first look into the matters referred to in the grounds of appeal 3, 4, 5 and 7.

32. The appellant, in the ground of appeal No.3 and 7, has stated that the learned trial judge had erred in law by admitting the evidence of a photocopy of the Caution Interview conducted by the Police. However, in this instance, no photocopies had been admitted as evidence. It was a carbon copy of the interview notes of the Investigating Officer that was produced at the trial. There is a significant difference between a carbon copy and a photocopy.

33. Photocopies are made, only at a subsequent stage making use of the original document whereas carbon copies are made, at the time the original document comes into existence. In other words, original document and the carbon copy is produced or prepared simultaneously. Hence, a carbon copy of a document cannot be treated as a copy of an original document.

34. At this stage, it is pertinent to refer to different categories of evidence, in order to have a clearer picture as to the way in which the evidentiary value of documents marked in evidence is assessed. Rules of evidence categorize the contents of a document into two and they are namely primary evidence and secondary evidence. Primary evidence is regarded as the best evidence whilst secondary evidence is considered as admissible evidence only when an additional requirement is satisfied.

35. Moreover, primary evidence means the document itself produced for the inspection of the court. Secondary evidence means and includes –

(1) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(2) copies made from or compared with the original;

(3) counterparts of documents as against the parties who did not execute them;

(4) oral accounts of the contents of a document given by some person who has himself seen it.

36. Therefore, when a document is of an original nature it amounts to primary evidence whilst a copy of an original document falls into the category of secondary evidence. Secondary evidence is admissible in evidence subject to a qualification such as having a certificate issued by a person who can testify as to the correctness of the contents of the copy. On the other hand, original documents marked in evidence do not require such a testimony to admit in evidence.

37. I also have considered the decision namely Regina v. Johendhan 18 FLR (1) referred to by the Appellant. In that decision, the test for the admissibility of secondary evidence is set out and has identified different kind of documents that should belong to the category of secondary evidence. However, carbon copies are not included in the said list of documents containing secondary evidence. Therefore the issue in the case at hand has no relevance to the said authority referred to by the Appellant.

38. However, as explained hereinbefore, a carbon copy is made or comes into existence simultaneously with the original document. Hence, it does not require any certificate or additional proof as to the genuineness of the contents of the document. In fact, it had been produced by its author himself. Moreover, a carbon copy cannot be changed subsequently and if changed, such a change also could be visible. In this instance, there is no evidence to establish that any alteration was made in the carbon copy.

39. Therefore, the carbon copy marked in evidence also should be treated in the like manner as in the case of an original document and should be treated as primary evidence. Accordingly, the grounds of appeal Nos. 3 and 7 have no merit and are not sustainable.

40. Ground of appeal bearing No.4 raises a question of facts that had been considered in evidence at the trial. As a matter of course, issues relating to the facts of a case would not be looked into in an appeal, unless those facts are mixed with questions of law. The best person to decide as to the facts at a given situation is the judge who heard the witnesses giving evidence describing the facts in issue. Moreover, Trial Judge is the best person to decide how and at what stage he could and he should answer a particular issue of facts. The discretion of a Judge with regard to that matter will not be interfered with by an Appellate Court unless his decision is manifestly wrong.

41. In the circumstances, we are not inclined to interfere with the finding as to the facts of the matter in issue as we do not see any wrong in the manner that His Lordship had directed the Assessors on the evidence recorded in respect of the facts of the incident in question. Hence, the appeal ground No.4 also cannot succeed.

42. Next ground of appeal is the ground No.5 and the basis of which is the failure to direct the Assessors as to the admissibility of the confession made at the inquiry within the trial. (voir dire inquiry) The appellant had stated that the Police should have produced him before a doctor prior to the recording of his confession since he had sustained bruises and was bleeding immediately before the Caution Interview was held by the Police. Accordingly, he has argued that the confession made by him should have been disregarded due to the injuries he sustained.

43. However, on a perusal of the record, it is clear that every opportunity had been afforded to the appellant to state the facts. The record also does not show that there had been any inducement or threat imposed on the appellant by the Police in order to elicit evidence. Merely because he had bruises on his body, it is not possible to decide that the confession was made involuntarily. Therefore, the acceptance of the confession at the inquiry within the trial namely voir dire inquiry cannot be rejected.

44. The ground of appeal listed last is that the appellant's right to a fair trial was prejudiced as he was not represented by a lawyer and it occasioned a miscarriage of justice.

45. In the case of Esala Tahaloa v. The State [Criminal Appeal No.AAU 0058/08] quoting series of decisions, it was held that the right to Counsel is not an absolute right Eliki Mototabua v. State CAV 004 of 2005 S) and the absence of a Counsel is not necessarily fatal to a conviction which is obtained after a trial which had been fairly conducted. [Seremaia Balelala v. The State - Criminal Appeal No.AAU 003 of 2004] It was also held that the matter that should be looked into is whether the trial miscarried as a result of the appellant being unrepresented. [Sammela Ledua v. The State - Criminal Appeal No.CA 004 of 2007]

46. On a perusal of the case record in this instance, it is evident that the learned Trial Judge had explained to the appellant, the rights that he is legally entitled to, when proceeding with the trial before the High Court. It is seen that the appellant having understood his rights had decided to conduct the case on his own without obtaining legal representation. In such a situation, Court cannot and should not adjourn the trial to facilitate the accused to obtain legal advice. If such an attitude is taken by Courts, accused may tend to abuse the process of Court in order to obtain postponements.

47. However, it is the duty of the Presiding Judge to explain to the accused of his legal rights and if the accused is not prepared to obtain such rights and insist on to proceed with the trial, then the Judge has no alternative but to proceed with the trial without granting a postponement. In this instance, I do not see any error or shortcoming of explaining the rights of an accused person by the learned High Court Judge to the appellant and I therefore am satisfied that no miscarriage of justice has taken place in this instance. Hence, the appeal ground No.8 also fails.

48. On grounds 1, 2, 6, I agree with the reasons and judgment of William Marshall JA. While Ms Ashika Chand and Rajneel Maharaj did not give evidence there was considerable evidence, including the formal admissions of Tomasi Buli and his caution statement. In addition there was circumstantial evidence. The assessors and the learned judge accepted that evidence as they were entitled to do.

Anjala Wati, JA

49. I agree with the judgment of William Marshall JA on the issue concerning the robbing of Ms Ashika Chand and Mr Rajneel Amitesh Maharaj. In my view for the reasons stated by William Marshall JA there was clear evidence upon which the trial judge assisted by the opinions of the assessors could find it proved beyond reasonable doubt that Tomasi Buli, in a joint enterprise with two others, robbed with violence Ms Ashika Chand and Mr Rajneel Amitesh Maharaj and convict Tomasi Buli on two counts of robbery with violence. There was also clear evidence that the property itemised in the two counts were in the custody or the possession of these two victims and was stolen in the course of each robbery.

50. In relation to the other matters I agree with the opinion of Kankani T. Chitrasiri JA.

51. In my view the appeal of Tomasi Buli against conviction should be dismissed.

William Marshall, JA

ORDER OF THE COURT

52. The order of the Court is:

1) the appeal against conviction of Tomasi Buli be dismissed.

Hon. Justice William Marshall
Justice of Appeal

Hon. Justice Kankani Chitrasiri
Justice of Appeal

Hon. Madam Justice Anjala Wati
Justice of Appeal