Johnson v State [2012] FJCA 7; AAU0090.2010 (1 March 2012)

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

Criminal Appeal No. AAU0090 of 2010
[High Court Criminal Action No. HAC120 of 2008]

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

BETWEEN:

RAYMOND JOHNSON
Appellant

AND:

THE STATE
Respondent

COUNSEL: Ms. B. Malimali for Appellant
Mr. L. Fotofili for Respondent

Date of Hearing: Monday, 21st March 2011
Date of Ruling: Thursday, 1st March 2012

RULING

1. Satish Kumar Singh in 2008 was a 39 year old building contractor. He had recently moved to Lot 71 Ratu Dovi Road, Nadera which is a three bedroom house within a compound. On the night of 13th-14th June 2008 he was living there with his wife and three children and also a house girl Ilisi. After watching movies he and his wife went to sleep at 11.30 p.m. At 3.00 a.m. on 14th June 2008 his dog Brownie woke him up with urgent and persistent barking. He looked out the window and saw six youths all wearing "Pom Pom" head coverings down to the forehead. After the padlock to the front door had been cut off and the front door forced open the six men came into the bedroom and turned on the light. One of the intruders held a dagger to Sanish's chest and spoke to him in English demanding cash money and jewellery. After they took the jewellery off his wife, they ransacked the place and removed a lot of property. Sanish observed them for about ten minutes in good light. When they left they put the property in Sanish's car DL276 and drove off in it.
   
2. Raymond Johnson was arrested as the man with the dagger who spoke in English to Sanish. He was identified at an identity parade by Sanish. In the High Court one count of robbery with violence and one count of unlawful use of a motor vehicle came before Mr Justice Goundar and assessors on 23rd August 2010. On 25th August 2010 the assessors gave opinions of "not guilty". On 26th August 2010 Justice Goundar convicted in accordance with his statutory powers, in a written judgment of 20 paragraphs correctly reviewing the law and the facts. Justice Goundar expressed the view that the opinions of the assessors were against the weight of the evidence. Justice Goundar emphatically indicated the findings that he made in this judgment.
   
3. In paragraph 8 of a letter of appeal filed on 9th November 2010 Raymond Johnson wrote:
   

"That I was tried in front of three assessors who unanimously found 'not guilty' on the first count of robbery with violence and 'not guilty' on the second count of unlawful use of motor vehicle."

4. I heard an application for leave to appeal against conviction and sentence on 21st March 2011. Mr L. Fotofili for the State in his written submission submits:
   

"2.5 Applying the standard as envisaged by the learned Goundar JA in Chand v State; considering the Appellant's grounds of Appeal; the fact that he was and is unrepresented; and his conviction for a serious crime, the State with respect submits that leave be granted to the Appellant to appeal only on ground 8 (appeal against conviction)."

5. The point that is at least arguable is that in accordance with the statutory framework and the doctrine in the Privy Council case of Ram Bali v. The Queen Privy Council Criminal Appeal No.3 of 1958 as properly developed in later decisions the conviction should be set aside.
   
6. I discussed these principles at length in the recent appeal of Peni Mau and Mahendra Motibhai Patel Criminal Appeal Nos. AAU 39 and 40 of 2011. The judgment was delivered on 28th October 2011.
   

While I accept that there is arguability sufficient for leave to appeal against conviction to be granted, the chances of success are not very high. I am influenced to grant leave because this was a serious crime and Raymond Johnson was sentenced to 10 years imprisonment. It behoves me therefore, unless it is truly hopeless, to provide a right of appeal, even in these circumstances.

7. For various reasons it is just arguable that the finding of Justice Goundar in respect of the identification by Sanish was unsafe given evidence of an alleged previous sighting of Raymond Johnson by Sanish on the day before the ID parade was held.
   
8. While the chance of success on this is minimal, I will give leave for it to be argued as a second ground of appeal.
   
9. I refuse leave on all other grounds against conviction. Each and every such other ground is totally unarguable.
   
10. The sentence in totality was 10 years imprisonment with a minimum to be served before parole of 7 years. This sentence is not in any way wrong in principle. If anything it is on the low side for what was a very serious home invasion at 3.00 a.m. in the morning. I propose therefore to refuse Raymond Johnson's application for leave to appeal against sentence.
    

ORDERS

11. I order
    
    • (1) that Raymond Johnson have leave to appeal against conviction on two grounds (as set out above in paragraph 5 and in paragraph 7).
      
    • (2) that Raymond Johnson be refused leave to appeal against sentence.
      

William Marshall
Resident Justice of Appeal