Kean v State [2013] FJCA 14; AAU0018.2008 (5 March 2013)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. AAU0018 OF 2008

BETWEEN:

GUSTON FREDRICK KEAN
Appellant

AND:

THE STATE
Respondent

Coram : Basnayake, JA
Goundar, JA
Kumararatnam, JA

Counsel : Appellant in person
M. Korovou for the respondent

Date of Hearing : 7 February 2013
Date of Judgment : 5 March 2013

JUDGMENT OF THE COURT

Goundar, JA:

[1] On 21 January 2008, the appellant was tried in the High Court at Lautoka on the following charges:

FIRST COUNT

Statement of the Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1) (b) of the Penal Code,

Cap.17

Particulars of Offence

GUSTON FREDRICK KEAN with others on the 25th day of July 2005 at Lautoka in the Western Division robbed TULSI RAM s/o Ganga Dharma of $5,000 cash and assorted jewelries valued at $19,500.00, these items having a total value of $24,500.00 and at the time of such robbery did use personal violence to the said Tulsi Ram.

SECOND COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code, Cap. 17.

Particulars of Offence

GUSTON FREDRICK KEAN WITH OTHERS ON THE 11th day of August 2005 at Lautoka in the Western Division robbed PRADEEP KUMAR LAL s/o Hira Lal of assorted jewelries valued at $15,400.00 and at the time of such robbery did use personal violence to the said Pradeep Kumar Lal.

THIRD COUNT

Statement of Offence

SHOP BREAKING ENTERING AND LARCENY: Contrary to section 300 of the Penal Code, Cap 17.

Particulars of Offence

GUSTON FREDRICK KEAN and SAKARAIA VADEI with others on the

5th day of October, 2005 at Lautoka in the Western Division broke and entered into SURENDRA PRASAD' shop and from therein stole assorted groceries and items having a total value of $210.00 the property of Surendra Prasad s/o Shiu Shankar.

FOURTH COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code, Cap 17.

Particulars of Offence

GUSTON FREDIRICK KEAN and SAKARAIA VADEI with others on the 5th day of October, 2005 at Lautoka in the Western Division robbed SURENDRA PRASAD s/o Shiu Shankar of 5 gross cigarettes valued $200.00, $300.00 in cash and 1 tabua valued $250.00 having a total value of $750.00 and at the time of such robbery did use personal violence to the said Surendra Prasad.

[2] The appellant was acquitted on count 1 by the trial judge after the close of the prosecution case. On counts 2-4, the appellant was convicted. He was sentenced to a total term of 8 ½ years imprisonment.

[3] This is an appeal against conviction and sentence.

[4] At trial, the prosecution relied upon the appellant's confession made under caution to the police in respect to all the charges, and circumstantial evidence of recent possession of one of the stolen properties, namely canned fish which the owner, Surendra Prasad identified as being among the items stolen from his shop in the morning of 5 October 2005.

[5] The appellant called his co-accused, Sakaraia Vadei to give evidence on his behalf. Sakaraia Vadei had earlier pleaded guilty and was sentenced to 7 years imprisonment. This witness gave evidence implicating the appellant to the offences charged on counts 3 and 4. The appellant gave evidence and raised alibi as his defence. The appellant's brother, Henry Kean gave evidence that on the dates of the charged offences, the appellant was at his home at Vomo Street, Lautoka.

[6] At trial, the appellant was unrepresented. He drafted his grounds of appeal without legal assistance. At the hearing of the appeal, the appellant provided better particulars of the alleged errors.

Severance
[7] The first ground is that the trial judge should have ordered separate trials by severing the charges. It is the appellant's contention that the assessors were confused and that he was prejudiced in receiving a fair trial by the number of offences in the same information.

[8] In the Magistrates' Court the appellant was charged separately in three cases. After these cases were transferred to the High Court, on 30 May 2006, the Director of Public Prosecutions filed the Information consolidating the charges against the appellant and his co-accused.

[9] The Information was filed under the Criminal Procedure Code (now repealed). The rules governing drafting of the charges were governed by the CPC. Joinder of counts in the same information was provided by section 120 of the CPC (now section 59 of the Criminal Procedure Decree). Section 120 stated:

"Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts or form, or are part of, a series of offences of the same or a similar character."

[10] Clearly, there were two limbs to section 120. The first was that the offences had to be founded on the same facts or form. The second was that the offences had to be formed part of a series of offences of the same or a similar character. If either one limb was satisfied, joinder was permitted and the information was valid.

[11] Section 120 is similar to Rule 14.2(3) of the English Criminal Procedure Rules 2011 (previously Rule 3 of the Indictment Rules 1915). In this regard I find the English cases relevant and persuasive.

[12] Under Rule 14.2(3) the test for the offences to be founded on the same facts is by asking whether the charges have a common factual origin. If the subsidiary charge could not be alleged but for the facts which give rise to the primary charge, the charges are founded on the same facts for the purpose of the rule and may be legitimately joined in the same indictment (R v Barrell and Wilson, 69 Cr App R 250, CA).

[13] In R v Burrell and Wilson (supra), a count charging attempt to pervert the course of justice was held to be properly joined with counts of affray and assault occasioning actual bodily harm where first of those charges based on allegation of trying to bribe witnesses for the prosecution in respect of other two charges.

[14] In R v Roberts, [2009] 1 Cr App R 20, controlled drugs and firearms had been found at the appellant's home during a lawful search and charges of unlawful possession of each of these items had been joined in one indictment. It was held by the English Court of Appeal that the coincidence of time and place of the possession of the various items was sufficient to satisfy the requirement that the offences be founded on the same facts.

[15] In R. v. Conti, 58 Cr App R 387, charges of assault occasioning actual bodily harm, possessing offensive weapon and possessing a prohibited drug were held to be properly joined where allegation was that the offender had taken the drug for the purpose of getting himself into suitable frame of mind to commit the assault.

[16] The test for charges forming "a series of offences of the same or a similar character" is not so stringent. In Kray, 53 Cr App R 569, it was held that all that is "necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima case that they can properly and conveniently be tried together in the interests of justice which include, in addition to the interests of the defendants, that of the prosecution, witnesses and the public. It was further held at p.575 that it is not desirable that the rule should be given an unduly restricted meaning.

[17] In Ludlow v Metropolitan Police Commr, [1971] A C 29, the defendant was charged with attempted larceny from a public house and robbery at a different public house in the same suburb 16 days later. The House of Lords held that the joinder had been proper; the offences charged were similar in both law and fact; they had the same essential ingredient of actual or attempted theft; they involved neighbouring public houses, and the time interval was only 16 days.

[18] Kray and Ludlow have established that in determining whether two offences can constitute a series, both the law and the facts should be taken into account. There must be some nexus between the offences. Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.

[19] In R. v Clayton-Wright, 33 Cr App R 22, counts charging arson of a vessel, arson of the vessel with intent to prejudice its insurers, attempting to obtain money from the insurers by false pretences in respect of the insurance on the vessel, and obtaining money by false pretences from other insurers by pretending that a mink coat had been stolen from appellant's car, had been held to be properly joined; the nexus of fraudulent acts to the prejudice of insurers was sufficient.

[20] In the present case, all charges were allegedly committed within a period of three months at Lautoka in the Western Division. The three robberies, albeit involved three different victims, were home invasion robberies. The offences were similar in both law and fact. The shop breaking offence was allegedly committed as part of the same transaction alleged in count 4. Clearly there was legal and factual nexus between the alleged offences, and therefore, the Information was valid.

[21] A further contention of the appellant under this ground is that the trial judge directed the assessors to his caution interview in relation to the acquitted count 1. The caution interview in relation to count 1 is not part of the court record. However, a copy of the said interview is in the High Court file. Exhibit No. C is the caution interview of the appellant in relation to counts 3 and 4. Exhibit No. E is the caution interview and Exhibit No. F is the charge statement of the appellant in relation to count 2.

[22] In his summing up, the trial judge directed the assessors that he had acquitted the appellant on count 1 and that they are only to consider counts 2, 3 and 4. The assessors were directed to consider the evidence on each count separately and that the guilt or otherwise on one count should not determine guilt or otherwise on the other counts. The trial judge drew the assessors' attention to the source of evidence on each count. Exhibits E and F related to count 2 and Exhibit C related to counts 3 and 4, and the trial judge so directed the assessors. When this was pointed out to the appellant at the hearing, he changed his submission and said that while the judge made reference to Exhibit E he took out the contents from his caution interview in relation to count 1. Reading of Exhibit E reveals that the appellant admitted going to the victim, Pradeep Lal's home, and while others were carrying out the robbery, he acted as a guard outside the house. The trial judge's direction on Exhibit E was as follows:

"In Ex. E&E1, the accused admits he and others went to the complainant's house. He was acting as a guard outside the house, while the others entered by breaking a grill and smashing a window glass. He said he did not receive any of the stolen items."

[23] Clearly, the direction of the trial judge was correct and there is no substance in the appellant's contention that the caution interview of the acquitted count was used to convict him on the other counts.

[24] The appellant also takes an issue with the trial judge's direction on Inspector Vava's evidence. The appellant submits that his allegation that Inspector Vava had twisted his arm during his caution interview related to the acquitted count 1 and therefore the trial judge should not have given the following directions:

"Insofar as the medical report Ex.1 is concerned you will notice that the finding of the doctor was that there was a fracture of the right distal forearm whereas the accused says that it was his wrist that was infured by the police. Even if it means wrist it is of significance you might think that two of the questions the accused put to Insp. Vava were "Durring the interview you punched me and twisted my right wrist", when the answer was "No", he put to Insp. Vava,"when I refused to sign, you & Nagata twisted my already injured arm". You can make what you like of those questions"

[25] The appellant's caution interview in relation to counts 3 and 4 commenced on 5 October 2005 at 7.35 pm and was suspended at 8.52 pm. The next day, the interview commenced at 7.20 am and concluded at 8.15 am. The interview in relation to count 1 commenced on 6 October 2005 at 12 noon and concluded at 3.12 pm. While I accept that the allegation of arm twisting was put to Inspector Vava when the appellant cross-examined him in relation to count 1 caution interview, the questions posed by the appellant was relevant to determine the truth of the earlier confession contained in the caution interview relevant to counts 3 and 4. Inspector Vava was involved in both interviews. If there was any truth in the allegation that Inspector Vava had twisted the appellant's arm during the second interview to force him to confess to count 1 allegation, then the first interview in relation to counts 3 and 4 was untainted as far as twisting of arm was concerned.

[26] Since the truth of the confession in relation to counts 3 and 4 was a matter for the assessors to consider, the trial judge correctly pointed out to the assessors the difference between the injuries contained in the medical report of the appellant and his questions to Inspector Vava. The appellant alleges that his medical report (Exhibit No.1) was tendered by him at the trial proper as part of the defence case when it was made available to him. He suggests that the report was not available to the trial judge at the voir dire hearing for his Lordship to make reference to it in his ruling admitting the caution statements. Counsel for the State has helpfully referred to the court record that shows the medical report was made available to the appellant in the voir dire hearing upon his request. He tendered the report as part of the defence case in the voir dire. There is no ground to criticize the trial judge on this issue.

Confession
[27] The appellant submits that his confession was wrongly admitted by the trial judge. He says his confession in writing was fabricated by the police from his oral confession. The conditions of his custody and the period of custody were oppressive. His arm was twisted to force him to sign his caution interview. These allegations were raised by the appellant at trial. The trial judge held a voir dire to determine these allegations. After considering all the evidence led by the prosecution and the defence, the trial judge felt satisfied that the prosecution had proved the voluntariness of the confession and lack of oppression beyond a reasonable doubt. On the evidence it was open for the trial judge to reach this conclusion.

[28] The appellant criticizes the trial judge for not directing the assessors on the weight to be given to the confession and that the confession was uncorroborated. There was no need for the trial judge to give corroboration direction in respect to the confession. The assessors and the trial judge were entitled to act upon the appellant's confession without corroboration. The trial judge directed the assessors on the allegations of assault and oppression and said that they had to be satisfied beyond a reasonable doubt that the appellant had made the confession and the confession was true before they could act on it. These directions were correct in fact and law.

Principal Offenders Not Convicted

[29] The appellant submits that he should not have been convicted on count 2 because the principal offenders were not convicted. This submission fails to understand the doctrine of joint enterprise that the appellant was charged under. The appellant agreed to participate in the robbery although his role was to act as a lookout. His conviction did not depend on convictions of others who carried out the actual robbery. To prove guilt, it was sufficient to establish that the appellant acted together with others in agreement to commit the offence.

Lack of Legal Representation

[30] The appellant submits that the trial judge failed to advise him of his right to legal representation when he appeared in the High Court on 31 March 2006 after the case was transferred from the Magistrates' Court.

[31] In Esala Tabaloa v The State Criminal Appeal No. AAU0058/08 (15 July 2010), this Court summarized the applicable principles when a conviction is attacked for lack of legal representation. The Court said at paragraph [4]:

"It is well established that the right to counsel is not an absolute right (Eliki Mototabua v. The State CAV 004 of 2005S) and the absence of counsel is not necessarily fatal to a conviction which is obtained after a trial which is fairly conducted (Seremaia Balelala v. The State Criminal Appeal No.AAU000 of 2004). The question is whether the trial miscarried as a result of the appellant being unrepresented (Samuela Ledua v The State Criminal Appeal CAV004)".

[32] While I accept that the appellant was not advised of his right to legal representation by the trial judge, according to the court record, the appellant was not ignorant of his right to counsel. On 31 March 2006, when the appellant applied for bail, one of the grounds for bail was to engage a lawyer. The trial judge granted bail and despite breaching bail, the trial judge continued to release the appellant on bail until 23 November 2007 when he was remanded in custody for absconding bail.

[33] The appellant knew he had a right to legal representation, yet, in two years before the trial commenced, he chose not to engage counsel despite being on bail. On the day of trial, the appellant informed the trial judge that he was ready to proceed with the trial. According to the court record, the appellant carried out an effective cross-examination of the prosecution witnesses and was able to fairly put his defence to the assessors and the trial judge. There is no ground to conclude that the trial miscarried due to the appellant being unrepresented.

[34] None of the grounds of appeal against conviction have been made out. The appeal against conviction should be dismissed.

Remand Period

[35] Before the appellant was sentenced, he had spent time in custody on remand. The appellant has calculated his remand period to be 10 months. Counsel for the State has worked out 3 months from the court record. This Court is bound by the court record and therefore accepts the State's calculation of the appellant's remand period. Further at the time of sentencing, the appellant had numerous cases before different courts in Fiji. In calculating the remand period, only the time spent in custody in the case for sentencing is relevant. The accused is not entitled to benefit from a remand period applicable to another case.

[36] As a matter of sentencing principle, the sentencing court should make a downward adjustment to the sentence for a period that the accused spent in custody on remand before sentence. This principle is now codified in section 24 the Sentencing and Penalties Decree. The trial judge made no reference to the remand period when he sentenced the appellant to a total term of 8 ½ years imprisonment. This ground has merit.

Erroneous Facts Used as Aggravating Factors

[37] Another complaint of the appellant is that the trial judge erroneously took into account that substantial cash was stolen. The appellant submits that he was charged on count 1 with stealing $5,000.00 cash but he was not convicted of that count. The convicted counts did not allege that substantial cash was stolen. The appellant further submits that the trial judge erroneously concluded that one of the weapons was actually used on the victim, Pradeep Lal causing him injury. Pradeep Lal gave evidence that his sustained some injuries on his stomach but he did not say a weapon was used to cause those injuries. The nature of the injuries was not revealed to the trial court.

[38] The appellant submits that the use of facts not led in evidence, as aggravating factors to enhance his sentence, was an error. I accept this submission of the appellant. The use of these erroneous facts by the trial judge to enhance the appellant's sentence justifies some reduction to his sentence.

[39] Due to the errors made in the sentence of the appellant, the appeal against sentence should be allowed. The sentence of 8 ½ years imposed upon the appellant is quashed and substituted with a sentence of 7 ½ years imprisonment from 7 February 2008.

Basnayake, JA: I concur.

Kumararatnam, JA: I concur.

Result

Appeal against conviction is dismissed.

Appeal against sentence is allowed.

.......................................................

Justice Eric Basnayake

Judge of Appeal

.....................................................

Justice Daniel Goundar

Judge of Appeal

.....................................................

Justice Prabaharan Kumararatnam

Judge of Appeal

Solicitors:

Appellant in Person

Office of the Director of Public Prosecutions for State