Tiritiri v State [2012] FJCA 2; AAU0009.11 (30 January 2012)

IN THE COURT OF APPEAL, FIJI ISLANDS

Criminal Appeal No.AAU0009 of 2011

BETWEEN:

VILIAME ROGOSE TIRITIRI
Appellant

AND:

THE STATE
Respondent

BEFORE THE HON. RESIDENT JUSTICE OF APPEAL,
HON. JUSTICE WILLIAM MARSHALL

COUNSEL: Mr. I. Khan for the Appellant
Ms. I. Whippy for the Respondent

Date of Hearing: Monday, 30th January 2012
Date of Judgment: Monday, 30th January 2012

JUDGMENT

1. In the early hours of 21st March 2008 there were a number of people drinking beer at Namaka school. They had been at a nightclub but had then proceeded to Namua school. The headmaster of Namaka School is Naulu Baleilevuka. He is the father of the appellant, Viliame Rogose Tiritiri's "wife" Ms Unaisi Baleilevuka. That is why the school was chosen for the consumption of a number of large bottles of Fiji Gold beer. So Mr Naulu Baleilevuka was the one who arranged this impromptu drinking session on the school premises.
   
2. Later the same day Viliame Rogose Tiritiri made a statement under caution which he signed. Although at one point there was going to be a voiredire, at the trial before Mr Justice Nawana and assessors, in the event there was no "trial within a trial". So the tribunal of fact was entitled to conclude that what Viliame Tiritiri said at his interview was correctly recorded.
   
3. In the statement the appellant says he left the party with his uncle Cama and walked towards the main road until they reached a neighbouring property which was Sadhai's garage. The following are relevant questions and answers:
   

"Q.62: What happened at Sadhai's garage?

1. We had an argument with the security man at Sadhai's garage.
   

Q.63: What was the argument about?

A. The security asked as to why we were drinking beer at Namaka Public School.

Q.64: What did you say?

A. I told that security that only Mr Baleilevuka told us to drink beer there.

Q.65: What happened during your two's argument with the security?

A. The security said that he is the watchman of whole Namaka Public School compound.

Q.66: Then what did you say?

A. I told him that the security of the school is the younger brother of Mr Baleilevuka and not him.

Q.67: What did the security say?

A. The security then said that only he is the watchman at the school.

Q.68: What happened after that?

A. I told the security to go together and ask Mr Baleilevuka as who is the watchman of the school area."

4. The appellant in his statement says he told the security man to wait there until he fetched Mr Baleilevuka. He said that when he and Mr Baleilevuka returned to the security man the confrontation turned violent. He continued:
   

"Q101. When Mr Baleilevuka punched the security man and it missed what did you do?

1. I was standing behind Mr Baleilevuka and I turned around to see who was behind me.
   

Q102. Whom did you see behind you?

1. I saw two Fijian boys, Uncle Cama and the two Fijian girls near the driveway.
   

Q103. Whom did you see behind the security man?

1. No one was behind the security man.
   

Q104. After you looked back then what did you do?

1. I then turned around to see Mr Baleilevuka and the security man.
   

Q105. Then what did you see?

1. I saw the security man lying face upwards and noticed that his face and forehead was covered with blood.
   

Q106. What was Mr Baleilevuka doing at the time?

1. He was standing next to where the security officer was lying.
   

Q107. What did you do after that?

1. I then kicked his side ribs and found out that he was unconscious.
   

Q108. How did you know that the security man was unconscious?

1. I noticed that he was breathing but he was not moving."
   

At a reconstruction the accused said:

"This is the same place where I saw that security man lying down with face upwards and blood covering his face."

5. There seems no doubt that the Appellant was at the scene. Also that he was not admitting to be involved in the actions that killed the security man who was also called Viliame.
   
6. The prosecution called two out of the three security men at the post. They were, of this group, the only survivors of the incident. The first to give evidence was Waisele Cegunacoko and his evidence was;
   

1A or "first accused" refers to Viliame Rogose Tiritiri the appellant and

2A or "second accused" refers to headmaster Naula Baleilevuka.

"I was drinking grog on 20.3.2008. I was joined by Saimoni and Vili. Vili was a Security Officer at Frezco and Saimoni was the nephew of Vili. They joined around 11.00 pm on 20.3.2008. They heard two young men yelling on the road. Vili spoke to them and told them not to swear. Then they started arguing. They were arguing about yelling and swearing. They started punching each other down towards the school. Sadhai Auto Parts was quite close to the Public School, Namaka. Vili the nephew of the Head Master ran up the office upstairs. Vili, with whom I was drinking grog was a friend of mine. Other Vili was the nephew of Head Master of Namaka Public School. Both Vilis were pulling each other. Vili – headmaster's nephew was part of the group yelling. I could see him clearly. 'I was not familiar with him'. I could recognize his face and light was there in front of Sadhai and street lights was there. I could not see everything clearly where I stand. Vili the nephew is in court. Vili the nephew is in court (1A) identified.

Vili the security officer, where is he now?

He is dead.

I do not know his full name. His name could be Viliame Gaunaivalu. (1A) had run up to the office. That's Headmaster's. The deceased was walking up the driveway at Namaka Public Schoo. Vili – nephew came down again and he was followed by Headmaster and two other boys. They had an argument – Vili – Deceased and all the men came from office. Argument was about Vili – deceased, did not like the drinking at school. The men came from the office were all drunk. Headmaster also came down. Headmaster is present in Court (2A) identified. They had a fistfight. Vili – the deceased and 1A. One of the two boys standing beside the deceased, hit the deceased with a bottle on his head. It was a beer bottle. Headmaster, 1A and two other boys came from the office. It was a long bottle. Deceased fell on the ground after receipt of hit of the bottle. 1A and 2A started to kick him on the ground. Deceased was just lying on the ground, two boys kept on kicking the deceased. 1A picked up a block and broke the block on the deceased's head. I and Saimoni tried to assist the deceased."

7. The other person is the security man Vili's party was Saimoni Tikibo. He said in evidence:
   

"I came back I found that Vili and a tall man having a quarrel in front of Sadhai's Office. Vili was asking him why he was swearing at him. I did not get what he was saying. They had a quarrel along the road until they reached the school. I saw him properly that night as there was light in front of Sadhai's Office. When they reached the school I saw a thin man coming from the school. They came down and went straight to Vili. Tall man was down. They had a fight. I could recognize the Headmaster. He was leading the group. They had a fight with Vili. Headmaster threw a punch at Vili. I was at the footpath about 6 metres away from the scene. I could see everything clearly from where I was standing. There were street lights, light from the school and canteen. I saw the tall man for the first time. It was going on for 20 minutes. I had a clear view of what was going on.

Headmaster and tall Fijian boy are in court 1A and 2A identified. When they came down I went towards where they had the fight in the school compound. They fought and after a while I saw Vili lying on the ground. They started stepping on and kicking Vili. They were stomping on deceased's body. I saw the tall man bringing a block and hitting on the fallen man's head. I heard some people calling out his name, saying 'Vili that is enough', when he got the block. Vili, the deceased was lying down. He tried to stand up when he was kicked. After he was hit with the block, there was no movement."

8. At the trial which commenced on 12th October 2010 before Mr Justice Nawana and assessors the headmaster who was the 2nd accused was acquitted of both murder and manslaughter and discharged. The appellant was convicted of murder by Justice Nawana after a unanimous "guilty" opinion of the assessors. He was sentenced on 27th October 2010 to life imprisonment and a twelve year period before being eligible for parole was imposed. He now under section 21 of the Court of Appeal Act applies for leave to appeal to the Court of Appeal against conviction and sentence.
   
9. At one time I thought that the main point was identification of the 1st accused. But it is clear that Viliame Rogose Tiritiri admitted being at the scene and in those circumstances he had no alibi. Indeed he called no alibi witnesses. The learned judge in his summing up was meticulous in giving a direction on identification which included a correct summation of Turnbull principles.
   
10. Since the second prosecution witness refers to the 1st accused as being called out to by name by a friend during the incident, I have no doubt that the tribunal of fact could find that the appellant was one of two men whose actions killed Viliame the security guard. I also am sure that both prosecution witnesses recognized and positively identified the 1st accused as the person who picked up a block of concrete and smashed it on Vili the security guard's face which was facing upwards. I conclude that there is nothing at all in the identification point.
    
11. This is a case where the appellant relies on matters of fact in order to appeal. They point to the fact that one of the security men who gave evidence did not bear witness to a hit on the head with a beer bottle. But it was for the tribunal of fact to decide whether this or any other alleged inconsistency was of any importance. When a spontaneous fight occurs there may be many witnesses but if each one saw exactly the same alleged action in detail it would be very unusual indeed.
    
12. In terms of "unreasonable verdict", which is the ground within section 23 of the Court of Appeal Act relied on, the case of Hancox 8 Crim. App. R. 193 says that the question for the Court of Appeal on the facts is whether the verdict is "obviously and palpably wrong". On the evidence at trial in this proposed appeal it is quite impossible for a conclusion that the tribunal of fact on the facts found a verdict that was "obviously and palpably wrong". On fact it does not get to the point of being a marginal case on the application of this criteria.
    
13. Mr Iqbal Khan for the applicant in a most helpful argument puts his Ground F as follows:
    

"THAT the Learned Trial Judge erred in law and in fact in commenting on the evidence raising a new theory on the facts, uncanvassed during the course of the trial whether the defence has had no opportunity of commenting upon it when he commenced on pages 31 and 32 of the Summing Up that 'In considering what to accept you must look at the evidence objectively and not to be swayed by emotion. This is indeed a tragic case, and says more about the shortcomings of society than it does about the accused."

14. This fails because it does not begin to be a "new theory on the facts". Exhortations towards objectivity are routine in case where "emotional" or "sympathy" verdicts are perceived as a possibility. In any event the verdict in trial with assessors is that of the learned High Court judge and I have no doubt that his verdicts were not swayed "by emotion" or "the shortcomings of society" or anything but an objective assessment of the evidence.
    
15. I have no doubt that none of grounds argued reach the threshold where leave should be granted. The appeals statutory framework requires me in this situation to consider whether the application for leave to appeal has no chance of success and is therefore frivolous or vexatious. I have to consider the application of section 35(2) of the Court of Appeal Act. Having done so I conclude that the application for leave to appeal and the proposed appeal against conviction in this case has no chance of success. I therefore will make an order under section 35(2).
    
16. So far as leave to appeal against sentence is concerned the question is whether the non parole period of 12 years was wrong in principle. I note the appellant at the time was a person of good character educated to tertiary level and in employment. So this was out of character in the sense that if he had not been drinking prior to the incident it is unlikely that he would now be within his present predicament. But the taking of a life in hot blood after consumption of alcohol is a problem in society. It is the serious matter of a taking of a life. Twelve years is the appropriate non parole period in this case. It cannot be argued that this minimum period was wrong in principle.
    

ORDERS

17. The applications of Viliame Rogose Tiritiri for leave to appeal against conviction and leave to appeal against sentence are refused.
    
18. The applications for leave to appeal against conviction and sentence of Viliame Rogose Tiritiri having no chance of success and being therefore vexatious and frivolous, the appeal of Viliame Rogose Tiritiri is dismissed under section 36(2) of the Court of Appeal Act.
    

William Marshall
Resident Justice of Appeal

Solicitors:
Iqbal Khan & Associates for the Appellant
Office of the Director of Public Prosecutions for the Respondent