Sinu v State [2013] FJCA 21; AAU37.2009 (13 March 2013)

IN THE COURT OF APPEAL
On appeal from the High Court

CRIMINAL APPEAL AAU 37 of 2009
(High Court HAC 24 of 2007)

BETWEEN:

MESAKE SINU
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini AP
Basnayake JA
Lecamwasam JA

Counsel : Appellant in person.
Mr M Korovou for the Respondent.

Date of Hearing : 11 February 2013
Date of Judgment : 13 March 2013

JUDGMENT

Calanchini AP

[1]. The Appellant was convicted on one count of robbery in company (aggravated robbery) under section 293(1) (a) of the Criminal Procedure Code Cap 17 (the Code) following a trial by judge sitting with assessors in the High Court. He was sentenced to a term of 8 years imprisonment to be served concurrently with a sentence of 9 years he was already serving.

[2]. The victim of the robbery was Peceli Qasevakatini. She was working as a chef at Five Princes Hotel on 17 June 2006. She started work at about 5.00a.m. Ms Qasevakatini was the only staff member at work when she heard noises in the reception area. She went from the kitchen to the reception area, turned on the lights and saw five people standing in the reception area. She went back to the kitchen. She returned to the reception area a second time and saw the Appellant standing there. She saw three others breaking the reception desk. The lights in the reception area exposed Mesake Sinu's face to Ms Qasevakatini. She asked them what were they doing there. None replied. A chair was then thrown at her by one of the group. Another threatened her with a knife. According to Ms Qasevakatini, Mesake Sinu told that person not to stab her. The perpetrators took $100.00 from the reception desk and left in a waiting car.

[3]. The victim told the court that she recognised Mesake Sinu because he was her elder sister's son, in other words her nephew. She had known him since birth and had seen him over the years at regular family gatherings. The Appellant in his evidence acknowledged that the victim was his aunt but alleged that she was mistaken about his presence at the hotel.

[4]. There was no identification parade held by the police and, at the trial, the victim was asked to identify the appellant in court by what is termed "dock identification."

[5]. On 21 May 2010 a single judge of this Court granted the Appellant leave to appeal out of time pursuant to section 35 (1) (b) of the Court of Appeal Act Cap 12 (the Act) but refused leave to appeal to the Court under section 35 (1) (a) of the Act. Pursuant to section 35 (3) of the Act the Appellant now renews his application to this Court for leave to appeal against conviction.

[6]. In a letter dated 22 May 2010 which was received by the Registry on 1 October 2010 the Appellant amended his grounds of appeal against conviction and indicated that he was also appealing against sentence. As a result the present proceedings before the Court will be treated as an application for an extension of time to lodge an appeal against sentence and as an application for leave to appeal against conviction. In the event that either or both applications are successful then the Court will consider the appeals.

[7]. On 23 January 2013 the Appellant filed a document which served as a notice of amended grounds of appeal and submissions on those amended grounds of appeal. The document was filed in accordance with Rule 37 (1) (b) of the Rules and as a result leave was not required. The Appellant's amended grounds of appeal as set out in that document are as follows:

"(i) That the learned court erred in convicting me over this charge as the indictment is defective.

(ii) That the learned court erred in convicting me over this offence as I was charged under the wrong law.

(iii) That the learned Judge erred in law and in fact in failing to make an order for the amendment of the charge under section 274 (2) of the Criminal Procedure Code when the prosecution closed its case.

(iv) That the learned trial court erred in law and in fact in allowing the practice of dock identification be exercised when it accepted the evidence of identification for the first time in court. As a result I have been prejudiced therefore having regard that I was unrepresented in court during trial and the court should have assisted me in that regard.

(v) That the learned trial court erred in law and in fact in placing before the assessors the poor quality of the evidence of identification as he should have withdrawn it from them in light of the principle as laid down in R –v- Turnbull [1977] QB 224; 63 Cr. App. R. 132.

(vi) That the learned Judge erred in law and in fact in failing to warn the assessors that mistaken recognition and/or identification of close relatives and/or friends do sometimes occur.

(vii) That the learned court erred in law and in fact in allowing the prosecution to amend the information only in few minutes before the commencement of the trial. As a result I have been prejudiced as I have been denied with my right to be informed of the nature and cause of the accusation and the right to be given adequate time and facilities to prepare for a defence. Finally I have been deprived with my right to a fair trial therefore.

(viii) That the learned trial court erred in failing to fairly conduct the trial in light of the composition of the assessors as there were two female and the complainant being also a female.

(ix) That the learned court erred in law and in fact in breaching and violating my right to a fair trial in light of all the above stated grounds."

[8]. Although not referred to in the document filed on 23 January 2013, the Appellant's ground of appeal against sentence was set out in his letter dated 22 May 2010 as follows:

"That the 8 years sentence is too harsh and excessive having regards to the circumstantial of evidence."

[9]. The Respondent had filed written submissions on 17 August 2012.

[10]. In considering the Appellant's grounds of appeal against conviction, it is convenient to group grounds (i), (ii), (iii) and (vii) together as they all relate to the pre-trial amendment to the Information that was allowed by the learned trial judge on 1 September 2009. The Record shows that the application seeking leave to file an amended Information was made by the Respondent before the trial began. The Appellant, who was representing himself, indicated that he had no objection. The record also shows that the amended Information was read and explained to the Appellant. He indicated that he understood the charge in the amended Information and pleaded not guilty to that charge.

[11]. The charge upon which the Appellant had been presented in the Magistrates Court on 5 February 2007 was one count of "Robbery with Violence contrary to section 293 (1) (a) of the Penal Code." The particulars of the offence were stated as follows:

"Mesake Sinu with others on the 17th day of June 2006 at Samabula in the Central Division, robbed Peceli Qasevakatini of $100.00 in cash and immediately before and after such robbery did use personal violence on the said Peceli Qasevakatini."

[12]. The amended information described the offence as one count of "Robbery contrary to section 293(1) (a) of the Penal Code." This time the particulars of the offence were stated as being:

"Mesake Sinu together with others on the 17th day of June 2006 at Samabula in the Central Division robbed Peceli Qasevakatini of $100.00 cash."

[13]. It is clear that the particulars set out in the original offence contain elements that are specified in section 293(1) (a) and (1) (b). In the amended particulars of the offence, the reference to the use of personal violence has been removed since those words are part of the offence created by section 293(1) (b).

[14]. The record of proceedings in the court below shows that the Appellant appeared before the learned trial Judge in a pre-hearing mention on 22 June 2009. The Appellant indicated that he was representing himself and that he agreed to the trial commencing on 1 September 2009. The only difference between the information as it stood on that day and the amended information that was accepted by the Court on 1 September was the deletion of the words "and immediately before and after such robbery did use personal violence on the said Peceli Qasevakatini."

[15]. The application for leave to amend the Information was made pursuant to section 274(9) of the Criminal Procedure Code which states:

"The Court may, upon application by the prosecution, grant leave to amend an information, whether by way of substitution or addition of charges or otherwise."

[16]. Whether an amendment should be allowed is a matter for the exercise of the Court's discretion. In this case the amendment of the particulars in the one count of aggravated robbery under section 293(1) (a) was not a substitution nor an addition of further charges. It was an amendment to an existing count to ensure that the particulars of the offence reflected the elements of the offence created by section 293(1) (a).

[17]. In exercising its discretion the Court is required to note section 274(10) of the Code which states:

"In deciding whether or not to grant leave, the Court may consider whether such amendment might embarrass the accused in his defence and whether such embarrassment might be appropriately mitigated by way of adjournment of trial."

[18]. In this case there was no cause for the Appellant to be embarrassed in his Defence. In the Magistrates Court and at the mention before the learned trial Judge in June 2009, the Appellant was aware that he had been charged with aggravated robbery. He was at all times aware that the Respondent was alleging that the aggravated offence under section 293 (1) (a) was constituted by robbing in company. That there was mistakenly included a further element did not diminish the Appellant's knowledge of the charge he was facing. The removal of the excess allegation rendered the charge in the Information regular.

[19]. The Appellant had agreed to the amendment. In addition to the absence of embarrassment, there was no injustice to the Appellant. The form of the offence as particularised in the amended Information was the offence which the Respondent anticipated would be established beyond reasonable doubt by the evidence that it intended to rely upon. The Appellant was in possession of disclosures. There was no prejudice to the Appellant. These grounds of appeal do not raise an arguable point and leave to appeal against conviction on grounds (i) (ii) (iii) and (vii) is refused.

[20]. The principal grounds in this appeal (grounds iv, v and vi) however, relate to identification. The Appellant claims that the learned trial Judge failed to follow the guidelines in R v Turnbull [1977] QB 224 and that there had been an inadequate warning concerning the danger of a dock identification.

[21]. The guidelines in R v Turnbull (supra) have been accepted as being the law in Fiji. The relevant guidelines were stated by the Court of Appeal at page 228:

"First, whenever the case against an accused depends wholly or substantially on one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convincing the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms, the judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example, by passing traffic or a press of people? Had the witness seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent observation to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?_ _ _ Finally he should remind the jury of any specific weakness which had appeared in the identification evidence.

Recognition may be more reliable than identification of a stranger but, even when the witness is purporting to recognise someone who he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made."

[22]. The learned trial Judge at paragraph 18 clearly stated that the principal issue was the question of identification:

"In order to connect Mesake Sinu to the robbery _ _ _ the prosecution relies on the identification evidence of Peceli Qasevakatini _ _ _ So in a sense the State's case against the accused stands or falls on your acceptance or otherwise of Peceli Qasevakatini's identification evidence."

[23]. In paragraphs 12 to 15 the learned Judge outlined for the assessors the evidence called by the Respondent concerning the circumstances of the offence. Then in paragraph 21 he summarised the evidence given by Peceli Qasevakatini concerning her identification and recognition of Mesake Sinu. There were two aspects of the evidence given by Ms Qasevakatini that the Appellant took issue with. First, the inconsistent evidence as to the length of time that she observed the Appellant in the reception area. Secondly, the dock identification of the Appellant.

[24]. The learned Judge then directed the assessors in paragraphs 19 and 20 as to how they should assess that evidence:

"As a matter of law, in such a case as the present, where the case against the accused depends wholly and substantially on the correctness of Peceli Qasevakatini's identification of the accused, which he said is mistaken, I must warn you, assessors, of the special needs for caution before convicting the accused in reliance on the correctness of Peceli Qasevakatini's identification evidence because an honest and convincing witness could be mistaken.

As assessors you must closely examine the circumstances in which Peceli Qasevakatini identified Mesake Sinu. How long did Peceli have Mesake under observation. At what distance? In what light? Was the observation impeded in any way? Has Peceli seen Mesake before? How often? If occasionally, had Peceli any special reason for remembering Mesakes's face? Did Peceli attend a properly held police identification parade in this case? Was there any special weakness in Peceli's identification evidence."

[25]. In paragraph 22 the learned trial judge refer's to the dock identification of the Appellant by the witness:

"Peceli first identified Mesake Sinu through a dock identification. Although such evidence is acceptable, you as assessors must approach it with caution since the layout of the courtroom, the dock and the officials, who else is the witness likely to identify but the accused. A properly held police identification parade was not held in this case."

[26]. Later, at paragraph 25, the learned trial Judge returns to the issue of identification and the quality of the evidence.

"In any event, this is an identification of an accused person by someone closely related to him. The accused, in his evidence, admitted Peceli was his mother's sister. Peceli, likewise in her evidence said, the accused was her elder sister's son. They knew each other well, and according to Peceli, their family often gather once monthly. So in a sense, even with the accepted weaknesses in Peceli's identification evidence abovementioned, and the general caution on identification evidence given earlier, if you, as assessors, accept the circumstances surrounding Peceli's identifying Mesake as strong and credible, and you are satisfied beyond reasonable doubt that he was in the group that robbed Peceli of the $100 at 5 Princess Hotel on 17th June 2006, you may find the accused guilty as charged. If you find the circumstances surrounding her identifying the accused weak and not credible, or you have a reasonable doubt on the matter, you may find the accused not guilty as charged."

[27]. In my view the directions given by the learned Judge concerning identification were a fair and correct application of the Turnbull (supra) guidelines. There is no basis for criticism. It was a matter for the assessors to consider all the evidence in the context of those directions.

[28]. In relation to the challenge to the dock identification, I consider the observations of this Court in Wainiqolo –v- The State (AAU 27 of 2006; delivered 24 November 2006) to be of great assistance in dealing with the issue. The Court noted in relation to dock identification in circumstances similar to the present case that:

"[17] The circumstances in the present case were different from a case where the first identification after the offence takes place in court. This was a case of recognition rather than identification of a stranger and different considerations arise.

[18] The witness in this case told the court that she recognised the person committing the robbery as someone she already knew. Whether that recognition was reliable was a matter for the assessors taking into account the Turnbull guidelines against the circumstances in which the sighting occurred as suggested by the learned judge.

[19] An identification parade would have added nothing because it would not have tested the accuracy of her previous identification of the robber. She believed she had seen a person, a relative, she already knew. The accused is the person she thought she saw. If he had been placed on a parade, she would have been identifying him as that relative, not checking the accuracy of her original recognition of him. More than that, it would appear likely that an identification parade could be prejudicial in such a case because it could be seen as strengthening the initial identification when it is, in fact, no more than an identification of a person on the parade that she already knew and would be looking for.

[20] Equally the identification in the dock was no more than identifying the accused as the person she knows as a relative. It added nothing to the original recognition which, as we have said, was the identification the assessors needed to consider against the Turnbull warnings.

[21] Following the judge's direction, the assessors must have evaluated the evidence of the witness' recognition in terms of Turnbull's case and accepted it was accurate and reliable."

[29]. That decision was considered on appeal to the Supreme Court in Wainiqolo –v- The State (CAV 7 of 2007; delivered 27 February 2008) The Supreme Court noted at paragraph 9:

"In the Court of Appeal, and to a degree in this Court, the petitioner asserted prejudice stemming from the dock identification by the victim. The Court of Appeal has correctly explained why this submission must be rejected. The assessors were warned about the general problem with an in-court identification; and this was really a case of recognition rather than identification of a stranger. It was plain to all that the real issue was whether the victim had recognised the petitioner at the time of the robbery. Since she claimed to know him already, the formal identification in Court added nothing of any materiality and caused no prejudice."

[30]. For all the above mentioned reasons I have concluded that these grounds of appeal, although arguable, must fail.

[31]. Ground 8 of the Appellant's grounds claims that the Appellant did not receive a fair trial because two of the three assessors were female and the victim complainant was a female. The Appellant submits that the two female assessors would readily believe the evidence of the female victim in preference to the evidence of a male accused. As a result they lacked proper impartiality. He also suggests that the learned Judge should have given directions on this issue.

[32]. It is not clear from the submissions whether the Appellant's claim is that the three assessors should have been all male or whether a majority should have been male.

[33]. It must be noted of course that the Appellant did not raise any objection when the three assessors were sworn in at the beginning of the trial on 1 September 2009. At that time the provisions relating to the selection of assessors were contained in the Criminal Procedure Code. In particular section 284(2) stated:

"The court before which a case is or may be heard may, in its discretion on an application made by or on behalf of the prosecution or the accused, or at its own instance, make an order that the assessors shall consist of men only or of women only as the case may require or may, on an application made by a woman to be exempted from service as an assessor in respect of any case by reason of the nature of the evidence to be given, grant such an exemption."

[34]. This provision would only have been of assistance to the Appellant in the event that he had made an application for all male assessors. I am of the view that since the Appellant was aware at the commencement of the trial that his aunt was to be called to give evidence about identification and evidence against him, he should have made an application at the commencement of the trial. He did not do so then and he cannot now raise the objection at this appeal. If such an application had been made I consider that there was no substantial basis upon which the learned Judge might have considered exercising a discretion to grant the application for a panel of male assessors.

[35]. The common law right to a fair trial and assessor impartiality has been considered in previous decisions of this Court. In Waqanituinayau –v- Reginam (1970) 16 F.L.R. 84 the Court observed at page 85:

"In our view no such inferences (a lack of impartiality) can be drawn from the facts surrounding the present and past occupations of the assessors. In any event it is perfectly clear that appellant had ample opportunity of raising at or before the trial any objection he might have had to all or any of the assessors. _ _ _ Appellant was present in court when the assessors were called, and could even then, before they were sworn in, have submitted that one or more of them should not be appointed. He was, however, silent. _ _ _.

His present objection appears to us something in the nature of an afterthought. It cannot in our view be said that he has been in any way prejudiced by the manner in which the assessors were appointed. _ _ _. He cannot at this late stage have the question of the appointment of the assessors reopened. We affirm the principle that once a jury has been sworn in and has entered on its duties, no objection can be taken to its personnel on grounds such as those put forward in this case; and the same principle should be observed with regard to the panel of assessors."

[36]. A similar view was expressed by this Court in Nand –v- Reginam (1980) 26 F.L.R. 137 where the issue was the ethnic mix of the panel of assessors. No objection had been taken to the panel of assessors that did not include a member of the accused's ethnic background. At page 154 the Court observed:

"Full opportunity existed for the appellants or their counsel to make such submissions or request but Counsel chose to remain silent.

We would add that the question of suitability of the appointment of assessors should be dealt at the commencement of the trial.

Accordingly we are satisfied that no irregularity occurred nor was there any miscarriage of justice. This ground of appeal fails."

[37]. It is apparent from the record that the Appellant was present when the assessors were called into court and sworn in as assessors. The Appellant made no objection to any of the assessors. I see no reason why the statements of principle in Waqanituinayau (supra) and Nand (supra) should not apply in the same way when the issue concerns the gender of the panel of assessors rather than training or background.

[38]. More recently, in The State –v- Ratu Inoke Takiveikata (unreported Ruling No.5 in HAC 5 of 2004 (Suva) delivered 1 November 2004) Gates J (as then was) considered, amongst others, the issue of an application for a trial by a panel of special assessors and the necessity for ensuring an accused is given a fair trial by, amongst other things, the empanelling of independent and impartial assessors. In paragraph 48 the following test was applied by the Court:

"Inevitably one is driven to the conclusion that the pre-eminent requirement for the tribunal is that the assessors should be impartial. Any special selection must be made for that purpose and for that purpose alone."

[39]. However His Lordship went on in paragraph 48 to add:

"The other purpose of any procedural or discretionary intervention to achieve a fair trial would be to correct an imbalance on the trial, to alleviate handicap, or to compensate a particular disadvantage for the Accused."

[40]. I adopt those observations and apply them to the present appeal. In the present application, the only ground that formed the basis of the application was gender. There was no other basis upon which the Appellant sought to challenge the impartiality of the assessors. Furthermore, apart from a two to one female membership of the panel, there was no other imbalance, handicap or disadvantage identified by the Appellant that would warrant the Court's discretionary intervention to ensure that the Appellant received a fair trial.

[41]. It is doubtful, in my view, whether a gender balance of two to one in favour of either gender could be the basis of intervention by the Judge. By itself it would be extremely difficult to conclude that an accused would be denied a fair trial. Admittedly there may be a particularly vicious or sexually violent crime that may give rise to the possibility of discretionary intervention. However this case is certainly not in that category. The assessors' opinions if given according to the oath that each swears at the beginning of the trial, will be given impartially. There was no material before the learned Judge or this Court to conclude that the opinion of the assessors was anything but impartial. There was no basis for concluding that the trial was unfair to the Appellant as a result of the composition of the assessor panel.

[42]. In my view the directions given to the assessors by the learned trial Judge in paragraph 6 of his summing up were appropriate and correct. He reminded the assessors that:

"You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence and to apply the law to those facts."

[43]. As a result I have concluded that ground 8 does not raise any arguable points and leave is refused.

[44]. The last ground of appeal against conviction is essentially a claim that the Appellant did not receive a fair trial. The Appellant relies on the seven specific grounds of appeal as forming the basis of the claim. It is not necessary to reconsider the grounds that have already been discussed. Those grounds of appeal have not succeeded and have been dismissed.

[45]. The Appellant submits that his conviction is unsafe. I do not agree with that submission. However, more importantly, under section 23(1) of the Court of Appeal Act (the Act) the Court in respect of any appeal against conviction shall allow the appeal if it concludes that the verdict of the assessors should be set aside because (1) it is unreasonable, or (2) cannot be supported by the evidence. Furthermore, under that section the appeal will be allowed if the judgment should be set aside as a result of (1) a wrong decision on any question of law, or (2) a miscarriage of justice. In my judgment the Appellant has failed to establish that any of his grounds of appeal satisfy the conditions set out in section 23(1) of the Act for either setting aside the verdict of the assessors or the judgment of the Court.

[46]. Turning to the appeal against sentence. Under section 23(3) of the Act, on any appeal against sentence, the Court shall, if it concludes that a different sentence should have been passed, quash the sentence and pass in substitution a sentence which it considers ought to have been passed or dismiss the appeal or make such other orders as it thinks fit.

[47]. There are no written submissions filed by the Appellant on this ground. The appeal against sentence was not addressed by the Appellant during the course of his submissions before the Court. The Respondent's submissions go no further than to state that the appeal against sentence should be dismissed because leave has not been granted. However the leave application can be made to the Court and we have determined that this was the manner in which the appeal should be considered.

[48]. The Appellant was sentenced on 10 September 2009. His notice of appeal against sentence was dated 22 May 2010 and was not received by the Court registry until 1 October 2010. Pursuant to section 26(1) the Appellant was required to give notice of his intention to appeal within 30 days. Even if it is assumed that the 30 days runs from the date of sentence, the date of the letter was some seven months out of time and the date of receipt was almost 12 months out of time.

[49]. The Appellant's notice claimed that the sentence was "too harsh and excessive having regard to the circumstances of the evidence."

[50]. In effect the Appellant's application for leave to appeal against sentence is an application for an extension of time to lodge a notice of appeal against sentence. Not only must the Appellant's ground of appeal raise an arguable point, he must also show that the ground of appeal has sufficient merit to justify extending the time for appealing.

[51]. The learned Judge commenced his sentencing process with a starting point of ten years. That is certainly within the range for aggravated robbery. That term was reduced by five years for mitigating factors which were identified by the learned Judge. The term was then increased by three years for aggravating factors which were also identified by the learned Judge. The sentence is not wrong in law nor is it manifestly excessive. I have concluded that it is a sentence that is within the range for a conviction of aggravated robbery with prior convictions for the same offence. The Appellant has not raised an arguable point on this ground of appeal against sentence and as a result the application for an extension of time to appeal is dismissed.

[52]. The Appellant's grounds of appeal have been rejected and I would dismiss the appeal against conviction and sentence.

Basnayake JA

[53]. I agree with the reasoning and the conclusion arrived at by Calanchini AP.

Lecamwasam JA

[54]. I have had the advantage of reading the judgment of the learned Acting President in this case. I agree with it and have nothing to add.

Orders:

Appeals against conviction and sentence dismissed.

Hon. Mr Justice W. Calanchini AP

Hon Mr Justice E. Basnayake JA

Hon Mr Justice S. Lecamwasam JA