Qativi v State [2015] FJCA 146; AAU0005.2014 (30 September 2015)

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

CRIMINAL APPEAL NO. AAU 0005 OF 2014
[High Court Case No. HAC 069 of 2013]

BETWEEN :

VILIAME QATIVI
Appellant

AND :

THE STATE
Respondent

Coram : Goundar JA
Counsel : Appellant in person
Mr. L. J. Burney for the Respondent

Date of Hearing : 24 August 2015
Date of Ruling : 30 September 2015

RULING

[1] This is a timely application for leave to appeal against conviction only. The appellant was convicted on two counts of aggravated burglary and two counts of theft after trial in the High Court at Suva. He was sentenced to 3 years 8 months' imprisonment with a non-parole period of 3 years.

[2] The appellant has elected to represent himself. He has filed numerous grounds of appeal.

[3] The State submits that the basis for the convictions was the appellant's caution interview which contained mixed inculpatory and exculpatory statements. The caution interview was ruled admissible in a voir dire. At trial the appellant was unrepresented. He gave evidence and said his admissions were not made voluntarily.

[4] Counsel for the State has fairly summarized the State's position regarding leave as follows:

3.1. Ground 1 relates to the fact that the complainants did not give evidence at the trial which the Appellant complains resulted in the prosecution failing to prove the elements of the offences charged. The Learned Trial Judge directed the assessors on the elements of aggravated burglary and theft and summed up on the basis that the Appellant's police interview alone, if accepted as true, was sufficient to prove the elements of the charges. It is apparent that the Appellant's record of interview might properly be termed a mixed statement in that it includes both incriminating parts and excuses (for example at answer 19). On the authority of R. v. Sharp, 86 Cr. App. R 274, it is arguable that the Learned Trial Judge fell into error in failing to direct the assessors that the whole of a "mixed" statement must be taken into consideration as evidence in deciding where the truth lay. The Summing Up treats the record of interview as wholly inculpatory and makes no specific reference to the excuses. It is further arguable that, even if the inculpatory parts of the record of interview are accepted as true (and the excuses rejected as being untrue), the admissions are not sufficient to prove all the elements of the offences charged.

3.2 In light of the Respondent's position at paragraph 3.1 above, and the consequent likelihood that this appeal will be heard by the Full Court, in order to minimise potentially nugatory work the Respondent will reserve further submissions until after the Appellant decides which grounds he will pursue before the Full Court.

[5] The appellant further seeks bail pending appeal. The State objects to bail. Counsel for the State submits that notwithstanding the appeal raises arguable grounds; the high threshold for the grant of bail pending appeal has not been met. I agree with this submission. The test for bail is that the appellant must demonstrate he has every chance of success. Without the benefit of the full record, it cannot be said the appeal has every chance of success.

Result

[6] Given the State's concession on leave, I grant the appellant leave to appeal conviction.

[7] Bail refused.

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

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions for the Respondent