Beeby v State [2015] FJCA 112; AAU63, 65, 68, & 102.2014 (8 June 2015)

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

CRIMINAL APPEAL NO. AAU63, 65, 68 & 102/14
[High Court Case No. HAC 283 of 2012S]

BETWEEN:

SAMUELA BEEBY
PENI TUILASELASE
SITIVENI TUISAMOA
ALIPATE LESI
Appellants

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. J. Savou for the Appellants
Mr. Y. Prasad for the Respondent

Date of Hearing : 8 May 2015
Date of Judgment : 8 June 2015

RULING

[1] This is an application for leave to appeal against conviction and sentence. The appellants were jointly charged and tried on one count each of aggravated robbery and theft of a motor vehicle in the High Court at Suva. They were convicted, and on 16 May 2014, sentenced to 14 years' imprisonment with a non-parole period of 12 years each.

[2] Initially, all four appellants filed their appeals in person. All except Alipate Lesi's appeal are timely. Mr. Lesi's appeal is late by about two months. His hand written Notice of Appeal is dated 24 June 2014, but the document was not received by the Registry until 28 August 2014. Since the appellant appealed in person from prison and the length of the delay is less than three months, I grant him an extension of time to seek leave to appeal.

[3] All four appellants are now represented by counsel. Mr. Savou has filed amended grounds and submissions on leave. On each ground Mr. Savou has presented brief arguments which I adopt in this ruling:

Sitiveni Tuisamoa

1. That the Learned Trial Judge erred in law and fact when he accepted the guilty opinion of the assessors against the Appellant despite the fact that the State had not proved beyond reasonable doubt that the 'pompom' tendered at trial belonged to the Appellant.
   

We submit that the duty of the prosecution during trial is to prove the Indictment beyond reasonable doubt. In this ground we submit that the ownership of the pompom was not galvanised properly by the State and as such any direction by the Learned Trial Judge concerning the pompom was therefore lacking in his summing up. The same summing up he relied upon when coming to his Judgment.

This ground is submitted on the basis that there were no marks, names, brand names or any distinguishing features on the 'pompom' which would have made it very clear that the only reasonable inference was that the pompom belonged to Mr. Tuisamoa. We submit this was unfortunately not the situation in the trial.

2. That the Learned Trial Judge's comments that is 'it is not necessary for the evidence to provide an answer to all questions raised in a case' at paragraph 43 sentence 3 of the summing up which was directed at the Assessors with reference to the Appellant negated the need for the State to fulfil its evidential burden.
   

We submit this was misdirection by the Learned Trial Judge which we submit led to the assessors finding an opinion of guilt against the Appellant.

Samuela Beeby

3. That the Learned Trial judge erred in law and fact when he failed to consider in his Voir dire ruling that the State had not discharged the burden of proving that the Appellant spending more than forty eight (48) hours in Police custody prior to being produced in court did not amount to 'Oppressive Circumstances' which sapped free will.
   
4. That the Learned Trial Judge erred in law and fact when:
   
   • (i) He failed to consider in his Voir dire ruling the evidence of the Appellant and witnesses called on behalf of the Appellant to prove assault whilst in Police custody; and
   • (ii) He failed to give cogent reasons on why he did not accept the above mentioned evidence in his Voir dire ruling.
     

We submit that on the above two grounds the Learned Trial Judge failed to adequately consider the case of the accused. In addition we submit that the State also failed to give a credible narrative on why the accused was kept in police custody for more than forty eight (48) hours before being produced in court.

5. That the Learned Trial Judge erred in law and fact for prejudicing the Appellant by allowing the following to occur during trial:
   

(i) Tendering the Appellant's unedited caution interview which contained bad character evidence unrelated to the trial (Question and Answer 45);
(ii) Failing to warn the Assessors to disregard any bad character evidence unrelated to the trial which was stated in the Appellant's caution interview at Question and Answer 45.

This point is aptly galvanised in the ground itself.

6. That the Learned Trial Judge erred in law and fact by failing to direct the Assessors on the issue of whether more than forty eight (48) hours in Police custody prior to being produced in court was lawful and whether or not such custody amounted to 'Oppressive Circumstances' which sapped free will of the Appellant.
   

This point is aptly galvanised in the ground itself.

Alipate Lesi

7. That the Learned Trial Judge erred in law and fact when he failed to consider in his Voir dire ruling that the State had not discharged the burden of proving that the Appellant spending more than forty eight (48) hours in Police custody prior to being produced in court did not amount to "Oppressive Circumstances' which sapped free will.
   
8. That the Learned Trial Judge erred in law and fact when:
   

(i) He failed to consider in his Voir dire ruling the evidence of the Appellant and witnesses called on behalf of the Appellant to prove assault whilst in Police custody; and
(ii) He failed to give cogent reasons on why he did not accept the above mentioned evidence in his Voir dire ruling.

We submit that on the above two grounds the learned Trial Judge failed to adequately consider the case of the accused. In addition we submit that the State also failed to give a credible narrative on why the accused was kept in police custody for more that forty eight (48) hours before being produced in court.

9. That the Learned Trial Judge erred in law and in fact by failing to direct the Assessors on the issue of whether more than forty eight (48) hours in Police custody prior to being produced in court was lawful and whether or not such custody amounted to 'Oppressive Circumstances' which sapped free will of the Appellant.
   

This point is aptly galvanised in the ground itself.

Peni Tuilaselase

10. That the Learned Trial Judge erred in law and fact when he failed to consider in his Voir dire ruling that the State had not discharged the burden of proving that the Appellant spending more than forty eight (48) hours in Police custody prior to being produced in court did not amount to 'Oppressive Circumstances' which sapped free will.
    
11. That the Learned Trial Judge erred in law and fact when:
    

(i) He failed to consider in his Voir dire ruling the evidence of the Appellant and witnesses called on behalf of the Appellant to prove assault whilst in Police custody;
(ii) He failed to consider Question and Answer 134 of the Appellant's caution interview where the Appellant had stated that he was assaulted and threatened;
(iii) He failed to give cogent reasons on why he did not accept the above mentioned evidence in his Voir dire ruling.

We submit that on the above two grounds the Learned Trial Judge failed to adequately consider the case of the accused. In addition we submit that the State also failed to give a credible narrative on why the accused was kept in police custody for more than forty eight (48) hours before being produced in court.

12. That the Learned Trial Judge erred in law and fact for prejudicing the Appellant by allowing the following to occur during trial;
    

(i) Tendering of the Appellant's unedited caution interview which contained evidence of uncharged acts (Question and Answers 105 to 108);
(ii) Failing to warn the Assessors to disregard the prejudicial information which was stated in the Appellant's caution interview at Question and Answers 105 to 108.

This point is aptly galvanised in the ground itself.

13. That the Learned Trial Judge erred in law and fact by failing to direct the Assessors on the issue of whether more than forty eight (48) hours in Police custody prior to being produced in court was lawful and whether or not such custody amounted to 'Oppressive Circumstances' which sapped free will of the Appellant.
    

This point is aptly galvanised in the ground itself.

Appeal Against Sentence

1. The Learned Trial Judge took into account extraneous matters when he considered matters already present in the particulars of offence as aggravating features of the offending.
   

The first aggravating feature we submit is already part of the particulars of offence and the restating herein accounts for double counting.

[4] On 8 May 2015, Mr Savou filed additional grounds of appeal as follows:

Samuela Beeby

1. The Learned Judge has erred in law and misdirected the Assessors at paragraph 38 of the summing up about the evidence contained in the caution interview of the Appellants in respect of its truth and/or credibility and the weight to be given to the confessions.
   

Alipate Lesi

1. The Learned Judge has erred in law and misdirected the Assessors at paragraph 38 of the summing up about the evidence contained in the caution interview of the Appellants in respect of its truth and/or credibility and the weight to be given to the confessions.
   
2. That the Learned Trial Judge erred in law and fact for prejudicing the Appellant by allowing the following to occur during trial:
   
   • (i) Tendering of the Appellant's unedited caution interview which contained prejudicial information as to the character of the Appellant (Question and Answers 16 to 17);
     
   • (ii) Failing to warn the Assessors to disregard the prejudicial information which was stated in the Appellant's caution interview at Question and Answer 16 to 17.
     

Peni Tuilaselase

1. The Learned Judge has erred in law and misdirected the Assessors at paragraph 38 of the summing up about the evidence contained in the caution interview of the Appellants in respect of its truth and/or credibility and the weight to be given to the confessions.
   

[5] I have considered the written submissions of both parties. I have also read the trial judge's voir dire ruling, summing up and sentencing remarks. At this stage I do not have to reach any conclusion on the grounds of appeal advanced by the appellants. The test for leave is less stringent. The test is whether the ground of appeal is arguable. Having considered the submissions of both parties, I am satisfied the grounds of appeal against conviction and sentence are arguable.

Result
Leave granted to all four Appellants to appeal their convictions and sentences.

...............................................
Hon. Justice Daniel Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Legal Aid Commission for the Appellants
Office of the Director of Public Prosecutions for the Respondent