Tapoge v State [2015] FJCA 119; AAU121.2013 (19 June 2015)

IN THE COURT OF APPEAL
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.AAU 121 OF 2013
[High Court Criminal Case No. HAC048 of 2011]

BETWEEN:

1. PURATAKE TAPOGE
2. KITIONE VESIKULA
3. FILOMENA ULUIVITI
Appellants

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. S. Sharma for the Appellants
Mr. M. Delaney for the Respondent

Date of Hearing : 12 January 2015
Date of Ruling : 19 June 2015

RULING

[1] The appellants seek leave to appeal against their convictions and sentences. All three appellants were jointly charged with murder. After trial they were convicted and sentenced as follows:-

1. Puratake Tapoge – life imprisonment with 18 years as non-parole

2. Kitione Vesikula – life imprisonment with 18 years as non-parole

3. Filomena Uluiviti – life imprisonment with 15 years as non-parole

[2] The grounds of appeal are as follows:-

Appeal Against Conviction

Ground 1 – The learned Trial Judge erred in law and in fact when he did not give any directions on provocation and intoxication although there was evidence which required such a direction to be given to the assessors.

Ground 2 – The learned Trial Judge erred in law and in fact when he did not properly guide and direct the assessors on how to approach the evidence contained in the statement given by the second Appellant to the Police.

Ground 3 – The learned Trial Judge erred in law and in fact when he did not properly direct the assessors in respect of the reckless elements of manslaughter.

Ground 4 – The learned Trial Judge erred in law and in fact when he did not properly direct the assessors in respect of the reckless elements of murder.

Ground 5 – The Appellants were prejudiced due to lack of legal representation.

Appeal against Sentence

Ground 1 – The learned Trial Judge erred in principle in imposing a non parole period which was excessive and also erred in failing to take into account the following relevant considerations when arriving at the non-parole period for all the Appellants:

1. The period spent in remand by all the Appellants;
2. It was not a premeditated or calculated murder;
3. The victim was equally to be blamed;
4. The First and second Appellants were intoxicated and not the initial aggressors;
5. The personal circumstances of all the Appellants such as their family ties, young age, etc.
   

[3] Both parties have filed helpful submissions. The test for leave is whether the appeal is arguable.

[4] At this stage, I do not have to consider the merits of the appeal. The appellants have been convicted of the most serious offence under the Crimes Decree 2009.

[5] In my judgment the appeal is not frivolous or vexatious. The grounds are arguable and I grant the appellants leave.

Result

Leave granted.

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

Solicitors:

Office of the Legal Aid Commission for the Appellants

Office of the Director of Public Prosecutions for the State