Livanasiga v State [2015] FJCA 110; AAU123.2011 (13 March 2015)

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

CRIMINAL APPEAL NO. AAU123 OF 2011
[High Court Case No. HAC 59/10S]

BETWEEN:

1. INOKE LIVANASIGA
2. TEVITA SUGU
Appellants

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Appellants in Person
Ms P. Madanavosa for the Respondent

Date of Hearing : 19 March 2014
Date of Ruling : 13 March 2015

RULING

[1] Following a trial in the High Court at Suva, the appellants and their co-offender were sentenced as follows:-

(i) Count No. 1: - Aggravated Robbery

Tevita Sugu - 7 years imprisonment

Veresa Naceno - 7 years imprisonment

Inoke Livanasiga - 7 years imprisonment.

(ii) Count No. 2 – Theft of Motor Vehicle

Tevita Sugu - 2 years imprisonment

Veresa Naceno - 2 years imprisonment

Inoke Livanasiga - 2 years imprisonment

(iii) Count No. 3 – Wrongful Confinement

Tevita Sugu - 2 years imprisonment

Veresa Naceno - 2 years imprisonment

Inoke Livanasiga - 2 years imprisonment

(iv) Count No. 4 – Aggravated Robbery

Tevita Sugu - 13 years imprisonment

Veresa Naceno - 15 years imprisonment

Inoke Likvanasiga - 13 years imprisonment

[2] Two other co-accused were acquitted of the charges. There is no appeal by Veresa Naceno.

[3] At trial, the appellants were unrepresented. They have elected to represent themselves in these appeals. They have filed timely applications for leave to appeal their convictions and sentences. Both have filed numerous documents containing their submissions. There is no point going through each and every point raised by the appellants. The submissions are mostly misconceived. This is to be expected when the appellants elect to represent themselves.

[4] Appellant Livanasiga's main grounds of appeal in summary are:

(1) There was no evidence that he was part of the joint enterprise to commit the charged offences.
(2) Dock identification by Tevita Seru should not have been allowed.
(3) Remand period not taken into account.

[5] The only evidence implicating Livanasiga to the charged offences was of Tevita Seru. Tevita Seru identified Livanasiga as one of the boys who came to his home on 15 February 2010 (date of the offence) at around 2.30 pm with a black briefcase. The black briefcase was taken from the robbery victim subject of count 4. Seru said he thought the boys came to his house to watch rugby. He went to the kitchen to make tea for them and when he returned from the kitchen, he saws the boys were dividing a large amount of cash among themselves.

[6] The learned trial judge's directions on Seru's evidence is contained at para. 43 of the summing up. The trial judge pointed out that there was no identification parade conducted and Seru identified Livanasiga for the first time in the dock. The learned judge left the issue of reliability of Seru's evidence to the assessors after pointing out the weakness in his identification.

[7] Livanasiga submits that without the identification parade Seru's identification was unreliable. Seru said he had known Livanasiga for 10 years. The recognizance was made inside his house during daytime. Identification parade would not have added anything to Seru's recognizance of Livanasiga because this was not a case of fleeting recognizance. This was a case of credibility, that is, whether Seru was telling the truth when he said Livanasiga whom he had known for 10 years came to his house with a black suitcase containing cash. The assessors and the trial judge accepted Seru as a truthful witness when they convicted Livanasiga

[8] In his sentencing remarks, the learned judge clearly took into account at para 13(c) that Livanasiga was in custody on remand for 1 year and 3 months. This ground is not arguable.

[9] Sugu has advanced similar grounds of appeal against conviction and sentence. The only ground that is arguable relates to Seru's evidence. Sugu contends that Seru was an accomplice and the trial judge should have given full corroboration directions on his evidence. The circumstances surrounding the distribution of cash at Seru's house and the fact that the black suitcase that was stolen in the robbery subject of count 4 was retrieved from his house arguably made Seru an accomplice. Seru implicated both appellants. In his summing up the trial judge gave no accomplice directions on Seru's evidence. This issue is arguable.

Result
[10] Leave to appeal against conviction is granted only on the issue whether the trial judge erred in law and fact in failing to give accomplice directions on Seru's evidence.

[11] Leave to appeal against sentence is refused.

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

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