Raitamata v State [2015] FJCA 106; AAU0010.2012 (13 March 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU0010 OF 2012
CRIMINAL APPEAL NO. AAU0058 OF 2012
[High Court Case No. HAC 12/10]

BETWEEN:

JOSUA RAITAMATA; and
JOSESE TUWAQA
Appellants

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Appellants in person
Mr. Y. Prasad for the Respondent

Date of Hearing : 20 March 2014
Date of Ruling : 13 March 2015

RULING

[1] The appellants were charged with different offences arising from the same facts. They were tried separately in the High Court at Suva. Both were convicted.

[2] On 24 February 2012, Raitamata was sentenced as follows:

Count 1 – Conspiracy to commit a felony, namely robbery – 2 years' imprisonment.

Count 2 – Receiving stolen property – 3 years' imprisonment.

Both terms made consecutive. Total sentence – 5 years imprisonment.

[3] On 20 March 2012, Raitamata filed a timely application for leave to appeal against conviction and sentence.

[4] On 29 June 2012, Tuwaqa was sentenced to 13 years' imprisonment with a non parole period of 11 years for robbery with violence. On 25 July 2012, he filed a timely application for leave to appeal against conviction and sentence.

[5] Both appellants are unrepresented. They were also unrepresented at trial. Both have filed numerous grounds of appeal. I have read all the submissions filed by the appellants. I have also carefully read the trial judge's summing up and sentencing remarks. There are two issues that give me some concern.

[6] The first issue relates to the appellants' bad character. It appears the bad character evidence was led by the prosecution. In Raitamata's case, the trial judge directed the assessors at para 14:

"According to the prosecution, the accused was serving time with one Eparama Nagalu in prison, prior to 2005."

[7] In Tuwaqa's case, the trial judge directed the assessors at para 25:

"Sgt. 988 said, the accused (Tuwaqa) was well know (sic) to police."

[8] Arguably the directions on the appellants' previous history with the police or prison were prejudicial directions.

[9] The second issue relates to the trial judge's directions on the appellants' confessions. In both cases, the trial judge told the assessors that the voluntariness of the confession was a matter for them. This was arguably a misdirection because the voluntariness of the confession is a matter for the trial judge to determine in a voir dire. The truth or weight of the confession is a matter for the assessors.

[10] The sentences of the appellants were within the range for the respective offences. There is nothing in the sentencing remarks that give rise to an arguable error in the sentencing discretion of the trial judge. The appeals against sentences are not arguable.

Result
[11] Leave to appeal against convictions granted.

[12] Leave to appeal against sentences refused.

....................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Appellants in person
Office of the Director of Public Prosecutions for State