Varani v State [2015] FJCA 145; AAU064.2011 (2 October 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

Criminal Appeal No: AAU 0064 of 2011
(High Court Case No: HAC 0070 of 2010)

BETWEEN:

LEPANI VARANI
Appellant

AND:

THE STATE
Respondent

Coram: Basnayake JA
Prematileka JA
Fernando JA

Counsel: The appellant in person
Mr. S. Vodokisolomone for the Respondent

Date of Hearing: 16 September 2015
Date of Judgment: 2 October 2015

JUDGMENT

Basnayake JA
[1] This is a leave to appeal application made under section 35 (3) of the Court of Appeal Act, Cap 12. This section makes provision for an appellant to make a renewed application after being refused leave by a single Judge of the Court of Appeal. Sub section 3 states;

(3) If the Judge refuses an application on the part of the appellant to exercise a power under sub section (1) in the appellant's favour, the appellant may have the application determined by the Court as duly constituted for the hearing and determining appeals under this Act.

[2] The appellant was charged with aggravated robbery, contrary to section 311 (1) (b) of the Crimes Decree 2009. After trial the appellant was found guilty on a unanimous opinion of the assessors and was sentenced on 19 May 2011 for 9 years and 10 months imprisonment with a 7 year non-parole period. The appellant appealed against the conviction and sentence. On 26 February 2014 the Court of Appeal by a single Judge refused leave. On 13 March 2015 the appellant filed a renewed application (received by this court on 19 March 2015) in terms of section 35 (3) of the Court of Appeal Act to have the appeal heard before the full Court.

[3] In the renewed appeal the appellant relied on 15 grounds of appeal with regard to the conviction and another 3 grounds on the sentence. On 2 June 2015 the appellant filed a notice of amended grounds of appeal. In that the appellant filed 9 grounds of appeal with regard to the conviction and 3 grounds on the sentence. On 3 June 2015 the appellant filed another ground as No. 10. In the written submissions filed dated 19 June 2015 (received by the Court of Appeal on 24 July 2015) the appellant mentioned another ground as No. 11. The written submissions of the appellant are based on the 9 grounds mentioned in the notice of the amended grounds filed on 2 June 2015, ground No. 10 mentioned in the notice of additional grounds filed on 3 June 2015 and the new ground mentioned in the written submissions. The learned counsel for the respondent also responded to the 11 grounds mentioned above. Of the 11 grounds, the appellant has withdrawn ground No. 8. The appellant also filed 2 grounds on the sentence. Of the two grounds the appellant has withdrawn one ground and left this court to consider the single ground.

The grounds of appeal
[4]

"1. That the learned trial judge has erred in law in ruling the confessional statements admissible since the first prosecution witness in the trial within the trial (D/S Aminiasi Lakoenavuli) failed to take oath before giving evidence, therefore resulting in a substantial miscarriage of justice.

2. That the learned judge has erred in law when he failed to direct himself during the trial within the trial on the burden and standard of proof required in order to rule the confessional statements admissible. Thus causing a substantial miscarriage of justice.
   
3. That the learned judge erred in law in failing to direct the assessors as to the weight and value they should attach to the confessional statements resulting in a substantial miscarriage of justice.
   
4. That the learned judge has erred in law when he stopped me by telling me during the trial proper not to bring back the issues that have already been raised during the trial within trial, causing a substantial miscarriage of justice.
   
5. That the learned judge erred in law in shifting the burden of proof on me when he directed the assessors at pg. 42, paragraph 26, line 1-3 of the Court record by stating that, "No evidence was produced in Court to show that the accused suffered any physical injuries from his arrest on 23rd March 2010 to his being produced in the Nasinu Magistrate Court on the 26th March 2010". Thus resulting in a miscarriage of justice.
   
6. That the learned judge has erred in law in convicting me over this offence as I was not yet cautioned by Police for committing it as required. Furthermore the charge is defective as it contains no offence known to the law, thus causing a substantial miscarriage of justice.
   
7. That the learned judge has erred in law and in fact in misdirecting the assessors by stating at page 36, paragraph 7, line 2-4 of the Court Record that, "This offence was allegedly committed at Nasinu, in the Central Division". Having regard that the place where this Building (The Rups Big Bear Building) is located is not in the boundaries of the Nasinu Area, but in the boundaries of Nausori Area, it has resulted in a miscarriage of Justice.
   
8. That the learned judge has erred in law when discharging the assessors at the close of the prosecution case, thus preventing them from hearing my submission of CASE TO ANSWER. As a result it has caused a Miscarriage of Justice (withdrawn).
   
9. That the learned trial judge has erred in law in failing to direct the assessors on the danger of acting or convicting upon the evidence of the confessional statements alone without corroboration, resulting in a miscarriage of Justice.
   
10. (Notice of additional grounds submitted on 3 June 2015) That the learned judge has erred in law in misdirecting the assessors by stating at page 41, paragraph 22, line 1-4 and at page 42, paragraph 23, line 3-5 that, "As a matter of law I must direct you that, a confession, if accepted by the Trier of fact in this case, you as assessors and judges of fact is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable doubt that it was given voluntarily by its maker; and the central issue that you have to decide now, is whether or not, Lepani Varani, gave those statements voluntarily to the police. In other words, did he give his caution interview statements out of his own free will?"
    
11. (This ground is found in the written submissions of the appellant dated 19 June 2015 and received by this Court on 24 July 2015). That the learned trial judge has erred in law stating at page 3 paragraph 1 line 1-2 of the sentence that the three assessors found me guilty over the charge, considering that one of them, namely, Ronald Narayan found me not guilty".
    

The grounds against the sentence:-

1. "That the sentence is wrong in law (withdrawn).

2. That the fixing of the 7 years non-parole period is wrong in law as it denies me my right to a one third remission of sentence as stipulated under the Prisons and Correctional Act".
   

[5] When this case was heard the appellant made oral submissions. The learned counsel for the respondent responded. Thereafter the appellant replied. In the oral submissions the appellant, apart from making submissions on some of the grounds, had addressed court on another point not mentioned elsewhere. I will consider the oral submissions after considering the grounds of appeal that the appellant has relied on in his written submissions. The appellant has made an application to court to consider the submissions he made in writing.

The Ruling of Hon. Justice Goundar pronounced on 26 February 2014 and the grounds of appeal urged before the full court

[6] The appellant had submitted 13 grounds in his appeal before the single judge of the Court of Appeal. Before the Full Court the appellant relies on 11 grounds. Some of the 11 grounds the appellant urged before Hon. Justice Goundar as well.

[7] Ground No. 1: The appellant submitted to this court was urged before Justice Goundar. Ground No. 1 states that the first prosecution witness Aminiasi Lakonavuli failed to take oath before giving evidence at the voir dire inquiry. This ground was countered in court itself by drawing the attention of the appellant to page 147 of the Record of the High Court (RHC) which confirms that oath was taken. Hon. Justice Goundar too in paragraph 11 of his Ruling (pg. 19 RHC) found that this witness had given evidence after taking oath and the ground is not arguable. The appellant did not pursue this ground thereafter. Hence this ground has to be dismissed.

[8] Ground No 2 relates to the failure of the trial judge to address himself with regard to the required burden and standard of proof to make it admissible. This ground was adequately addressed to by Hon. Goundar in his Ruling. The learned trial judge in his ruling on the voir dire in paragraph 2 (pgs 45 and 46 of the RHC) stated as follows:

"The law in Fiji in this area is well settled. In Ganga Ram and Shiu Charan v Reginam (Criminal Appeal No. 46 of 1983, the Fiji Court of Appeal said the following, "it will be remembered that there are two matters each of which requires consideration in this area. First, it must be established affirmatively by the crown beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the use of force, threats of prejudice or inducement by offer of some advantage-what has been picturesquely described as "the flattery of hope or the tyranny of fear". Ibrahim v R. (1914) AC 599. DPP v Ping Lin (1976) AC 574. Secondly even if such voluntariness is established there is also need to consider whether the more general ground of unfairness exists in the way in which the police behaved, perhaps by breach of the Judges Rules failing short of overbearing the will, by trickery or by unfair treatment. Regina v Sang [1979] UKHL 3; (1980) AC 402, 436 @ C-E. This is a matter of overriding discretion and one cannot specifically categorise the matter which might be taken into account..."

Hence this ground is without merit and is rejected.

[9] Ground No. 3 relates to the failure on the part of the learned judge in not directing the assessors with regard to the weight and the value that should be attached to the confessional statements. The appellant submitted that nowhere in his charge to the assessors does the learned judge direct the assessors on the weight and the value they should place on the confession. The appellant submitted that it is incumbent upon the learned trial judge to direct the assessors upon the weight and value they should attach to the confession. This was not done.

[10] The appellant cited Lord Hutton in R v Mustaq [2005] UKHL that, "the admissibility is a matter for the judge, weight a matter for the jury". The appellant also quoted from Mirfield on Silence, Confession and improperly obtained evidence (1197) pg. 51 that, "The jury function is to determine whether or not the confession is true".

[11] The learned judge stated as follows in the summing up:-

"a confession, if accepted...is strong evidence against its maker....before you accept a confession, you must be satisfied beyond reasonable doubt that it was given voluntarily...The prosecution must satisfy you beyond reasonable doubt that the accused gave his statement voluntarily, that is he gave his statement out of his own freewill. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate the freewill and ...you are entitled to disregard them..(means the confession). However if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily, as judges of facts, you are entitled to rely on them against the accused (paragraph 22 of the summing up).

The central issue that you have to decide now, is whether or not, Lepani Varani (the accused appellant), gave those statements voluntarily to the police...did he give his caution interview statements out of his own freewill? (para. 23 at pg 42 RHC). In deciding the above issue, you will have to look at all the surrounding circumstances, that is from the time he was arrested, while at the police station, while being interviewed, to the time he was produced in the..Magistrate Court..He was arrested on 23rd March 2010 from Sarawa Settlement, cautioned interviewed on 25th March 2010 and produced in the Magistrate Court on 26th March 2010..."

[12] The appellant in evidence has admitted to the making of the statement to the police (pgs 165/6 RHC). He admitted to the arrest as related by the police. The appellant was at that time found in a vacant house. He said that he cooperated with the police. He admitted that no force or threats were made during the arrest or while being brought to the police station. However he said that Sgt Aminiasi threatened him to confess to the allegations. Due to the unfair treatment the appellant submitted that he admitted to the crime. On perusal of the record of the High Court (pg. 148) it is evident that no questions were asked by the appellant from this witness on this basis. Moreover it appears that the caution interview was done by Sergent Vinendra Deo (pgs. 95 to 98 RHC).

[13] The appellant admitted to the answers given at the caution interview. He also admitted to the caution that was offered by the interviewer. He admitted that the answers given at the interview connect him to the crime. However he said in evidence that those answers are not true. The appellant strongly submitted that it is for the assessors to believe the truth or the falsity of the caution interview once they determine that it was made voluntarily. It is true that it is the trial judge who decides on the admissibility of the confession. Once it is admitted, the same evidence that was led at the voir dire is led before the assessors, for the assessors to determine not only the truth of it, but of the voluntariness as well.

[14] I am of the view that the learned judge had explained well how to believe and under what circumstances to reject the confession. In paragraph 21 of the summing up the learned judge gave a synopsis of what the appellant had said at the caution interview; how the appellant with others did break into "Rups Big Bear" shop. The two security guards described as to how they were tied up by masked men armed with weapons (pg. 157). The appellant gave an account (pg. 97) in his caution interview how they tied up the security guards and damaged a light in order to darken the place. This was confirmed by Chand, (pg. 158) an employee, in evidence.

[15] The appellant also in the caution interview identified the ropes and the clothes used to silence the security guards. These items were produced in court at the trial. This evidence helped the assessors in ascertaining the truth of the caution interview. If the confession is believed it will nail the accused to the crime charged. Once the voluntariness was proved, there was ample material to give weight to the truth of the confession. Therefore the argument that the learned judge did not direct the assessors on the weight and value of the confession does not hold good ground.

[16] The 4th ground is that the learned judge prevented the appellant from asking the police witnesses the same questions that were asked at the voir dire. The appellant relied on the case of R v Murray 1951 1 KB 391. However the record does not bear out such allegation. The learned counsel for the respondent too refuted and rejected this allegation as baseless. The witnesses called to give evidence at the voir dire were called again to give evidence at the trial proper in the presence of the assessors. The caution interview was recorded by Sgt. Deo. This witness was cross-examined by the appellant at the voir dire inquiry about the manner of recording the confession (pgs. 149/50).This witness gave evidence at the trial (Pg. 160) and was cross-examined in detail by the appellant. On perusal of the cross-examination on both occasions, the appellant had asked the same questions. The proceedings are recorded in the form of narration and not by question and answer. The question can be fathomed from the answers. Therefore I am of the view that this ground is lacking merit.

[17] Ground 5 is relating to the shifting of the burden of proof by the learned judge. The learned judge in paragraph 26 (pg. 42) of the summing up stated as follows: "No evidence was produced in court to show that the accused suffered any physical injuries". The appellant submitted that with this direction, the burden of proof was shifted to the appellant to prove that he was assaulted. In this case there is no issue with regard to an assault by anyone on the appellant. None of the police witnesses were questioned with regard to an assault. The appellant gave sworn evidence (pgs. 165/6). He did not say in evidence that he was ever assaulted by the police while being arrested or while in police custody.

[18] The appellant said that he was threatened and induced and that his statement is involuntary. It is a fact that the appellant never suffered any injuries. There was no proof of any physical injuries. The appellant never complained of any injuries. Hence I am of the view that the statement of the learned judge does not place any burden on anyone to prove that the appellant did suffer injuries. It is only in the event the appellant complains of assault that the prosecution will be burdened to prove that the appellant did not suffer any injuries. Therefore there is no shifting of the burden. The learned judge has firmly maintained at all times that the burden of proof is with the prosecution throughout the case. Hence this ground is without merit and is dismissed.

[19] Ground No. 6. The appellant complained that although he was charged in the High Court for aggravated robbery contrary to section 311 (1) (b) of the Crimes Decree, he was not cautioned by the police on this charge. The appellant admitted that he was cautioned for aggravated robbery under section 311 (1) (a) of the Crimes Decree. The learned counsel for the respondent submitted that this had not caused any prejudice to the appellant.

[20] The charge statement is at page 107 where the caution is evident. That was under section 311 (1) (a). At the interview the appellant admitted to having broken into the shop 'Rups Big Bear' armed with weapons. He denied to having stolen any goods. The information is prepared by the Director of Public Prosecutions (information is at pg. 66). The information is prepared on the material available. The caution interview contained material to justify the charge. The appellant submitted that this has caused a miscarriage of justice. I cannot accept this submission. The appellant was not misled by the information filed by the DPP. Therefore this ground is rejected.

[21] Ground No. 7 is concerning the geography. The appellant complained that the building where the shop is housed is situated in Nausori Area. In the information (pg. 66) and in the summing-up the learned judge mentioned the place of robbery as Nasinu. It appears that the building Rups Big Bear is situated in the boarder of the two Divisions Nausori and Nasinu. However the place where the crime was committed had been clearly identified and the appellant was not misled by the Information of the DPP and the direction of the learned judge in the summing up. The appellant never objected to the information of the DPP that the place of crime had been wrongly mentioned or that he was misled by the information. The place was identified as the Rups Big Bear. There is no evidence that there was another shop bearing a similar name. Hence this ground is rejected as it is without merit.

[22] Ground No 8 had been withdrawn and hence does not require consideration. Ground No. 9 is that the confession has not been corroborated. The Court of Appeal held that, "there is no need for the trial judge to give corroboration direction in respect to the confession. The assessors and the trial judge are entitled to act upon the appellant's confession without corroboration" (Guston Fredrick Kean v The State (Criminal Appeal No. AAU 0018 of 2008 (5 March 2013). However the fact that a robbery took place was corroborated by the evidence of the security guards, namely, Sikeli Manu (pgs. 157 & 8 RHC) and Samyela Kata and Vikash Chand, another employee.

[23] This ground is based on the direction (paragraphs 23 at pg. 41 of the summing up) that the assessors should be satisfied with regard to the voluntariness of the confession. This ground is a repetition, and has already been dealt with in detail. Ground No. 11 is a new ground not found in the notice of appeal or any other additional grounds filed from time to time. The appellant complained that he was found guilty by two assessors and not by a unanimous decision. However page 169 indicates that the decision is unanimous.

Grounds against the sentence

[24] The first ground on the sentence had been withdrawn. Ground No. 2 on the sentence is concerning the term of parole. The appellant submitted that fixing 7 years parole denies him of one third remission of sentence. The appellant had been sentenced to 9 years and 10 months with 7 years as non-parole. This ground was raised before the Hon. Justice Goundar who held that "the non parole period is slightly more than two thirds of the head sentence. The non-parole period is a matter for the trial judge's discretion (pg. 21 at para. 20) (Munesh Chand v The State (2013) FJSC 5; CAV 003.2012 (24 April 2013). This ground is without merit and is dismissed.

The oral submissions of the appellant

[25] When this case was taken up for hearing before us, the appellant in the oral submissions addressed court touching on some of the grounds already addressed to. The submissions are as follows:

i. The appellant complained that the prosecution witness Aminiasi Lakonavuli's evidence was obtained without administering oath at the 'voir dire' inquiry and therefore should have been ignored. This ground has already been dealt with under paragraph 7 above.

ii. The appellant also submitted that the learned Judge had failed to address the assessors and himself that the voluntariness of the cautioned statement should have been proved beyond reasonable doubt. This ground has been addressed in paragraph 8 above.

iii. The cautioned statement was recorded after 48 hours of the arrest. This is a completely new point that the appellant has taken. As the learned counsel for the respondent did not object, we obliged the appellant. The appellant submitted that his cautioned interview was recorded after the lapse of 48 hours of his arrest. The appellant submitted that as a result prejudice was caused to him and that human rights were violated. However he did not submit that there was oppression. As this point was taken up for the first time the learned counsel for the respondent could not immediately counter it. If this point was taken up in advance, the respondent would have been able to explain the delay in recording the confession after the lapse of 48 hours. The appellant himself did not explain what he did within the period of 48 hours. The appellant was arrested in connection with many other crimes. Therefore we have no information that the appellant was kept in the police cell for 48 hours. This point is settled now. In Noa Maya and another v The State (AAU 0053 of 2011; HAC 0086 of 2009, 27 February 2015) the Court of Appeal following a Supreme Court decision (Murti v State [2009] FJSC 5; CAV 0016.2008 (12 February 2009) refused to reject a caution interview recorded after being held for 48 hours. In Murti's case the accused was held for more than 60 hours.

iv. The charge was defective. v. The appellant was not cautioned. vi. The trial Judge failed to address on the burden and standard of proof. All these three grounds have been dealt with. For the reasons adumbrated above I see no reason to grant leave. Hence leave is refused and the appeal dismissed.

Prematilaka JA

[26] I have read in draft form the judgment of Basnayake JA and agree that the appeal should be dismissed.

Fernando JA

[27] I agree with the reasons and the conclusion of Basnayake JA.

The Orders of the Court are:

1. Leave to appeal is refused.
2. The appeal is also dismissed.

Hon. Mr. Justice E. Basnayake
JUSTICE OF APPEAL

Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL

Hon. Mr. Justice P. Fernando
JUSTICE OF APPEAL