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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
[On Appeal from the High Court]
CRIMINAL APPEAL Nos. AAU 0119/2011 and AAU 0038/2013
[High Court Case No. HAA 018 of 2010]
BETWEEN:
1. ERONI VAQEWA
2. ASELAI WAQANIVALU
Appellants
AND:
THE STATE
Respondent
CORAM : Guneratne JA
S. Fernando JA
P. Fernando JA
Counsel : Appellants in Person
Mr. M. Delaney for the Respondent
Date of Hearing : 17 November 2015
Date of Judgment : 3 December 2015
JUDGMENT
Almeida Guneratne JA
[1] I agree with both reasons and conclusion in my brother Shavindra Fernando JA's judgment.
Shavindra Fernando JA
[2] This is a renewed application for an enlargement of time to appeal, leave to appeal and an appeal from a dismissal of the appellant's appeal to the Lautoka High Court from conviction and sentence from the Lautoka Magistrate Court. The appellants were charged together on one count of robbery with violence under Section 293 (1) (a) of the Penal Code. The appellants were convicted on 19th March 2010. On 18th May 2010 the first appellant was sentenced to seven (7) years imprisonment and the second appellant to six and a half (6½) years imprisonment. The non parole period was set at 60 months (5 years) for both appellants.
[3] Both appellants appealed to the High Court against their convictions and sentences. On 22nd September 2010 the court dismissed the appeals of the appellants. The appellants applied for leave to appeal to the Court of Appeal against the dismissal of their appeals by the High Court.
[4] On 27th May 2014, the application for leave came before the Justice of Appeal and a ruling was subsequently delivered on 6th June 2014. The learned Justice of Appeal concluded that none of these grounds involved the question of law only and therefore proceeded to dismiss the appeals under Section 35(2) of the Court of Appeal Act on the basis that the appeal was bound to fail because there was no right of appeal.
[5] The appellants appealed against the order of the Justice of Appeal to the Supreme Court. The Supreme Court concluded that the appellants can be said to have raised grounds of appeal that involves the question of law alone and that substantial and grave injustice will occur if leave to appeal is not granted. The Court of Appeal granted leave to appeal quashed the orders of the Court of Appeal and remitted to the Court of Appeal for determination the petitioner's application for an enlargement of time to appeal.
Facts
[6] The facts reveal that on the 27th November 2008, at about 4 pm the two appellants hired a taxi in Kashmir and ordered it to go to Ragg Sreet in Simla. When stopping in Ragg Street, the second appellant who had been sitting in the front passenger seat got out and went to the driver's side, where he pulled out the ignition key and punched the driver' face. The first appellant seated in the rear had put his arm around the driver's neck and kept a blunt knife to his neck. They stole $85 from under the floor mat, $30 in loose coins, $80 in cash from the driver's pocket, $45 from his trouser pocket and his mobile phone. Then they fled.
[7] The taxi driver, Yogesh Prakash s/o Ravindra Prakash made a complaint to the Police Station about the robbery.
[8] After about five days Yogesh Prakash went to the Police Station to inquire about the progress of the investigation into his complaint. At the police station he recognized the two appellants who were present at the Police station at that time. He recognized them as the two persons, who robbed him on 27th November 2008. He then informed the Police.
[9] At this stage it appears that the police had arrested the two appellants and subsequently charged them for committing robbery with violence in the Magistrates Court. (However no such evidence was led in the case).
The Charge
[10]
CHARGE
(COMPLAINT BY PUBLIC OFFICER)
Statement of Offence (a)
ROBBERY WITH VIOLENCE: Contrary to Section 293(1) (a) of the Penal Code Cap 17.
Particulars of Offence (b)
ASELAI WAQANIVALU and ERONI VAQEWA on the 27th day of November 2008 at Lautoka in the Western Division, robbed YOGESHWAR PRAKASH s/o RAVINDRA PRAKASH of cash $240 an a vodaphone mobile phone valued at $280.00 all to the total value of $520.00 and immediately before the time of such robbery did use personal violence to the said YOGESHWAR PRAKASH s/o RAVINDRA PRAKASH.
[11] At the trial the prosecution led the evidence of Yogeshwar Prakash, the taxi driver and Akisi Waqatairewa who was the Police Officer who conducted the caution interview of the appellants. Having led the evidence of those two witnesses the prosecution closed its case.
[12] It is pertinent to mention that the first appellant in this appeal was the 2nd accused at the trial and the 2nd appellant was the first accused at the trial.
[13] Both the appellants were unrepresented at the trial. The first appellant when explained his right to cross-examine witnesses did not ask any questions however the 2nd appellant asked a few questions in cross examination from both witnesses.
[14] The learned Magistrate being satisfied that the evidence led by the prosecution required the two appellants to reply to the prosecution
case.
In explaining his rights to the first accused (2nd appellant) he said:-
"Thus I explain the right of the Accused to either give evidence from the Accused box without being cross-examined OR to give evidence from the witness box on oath, subject to cross-examination. Further I explain the Accused the right to call witness."
In explaining his rights to the 2nd accused (1st appellant) he said:-
"2nd Accused is again explained that if he wants he can given evidence from the dock without being subject to cross-examination OR he can give evidence from the witness box on oath subject to cross-examination OR he can call witnesses."
Grounds of Appeal
[15] The 1st Appellant's grounds of appeal are as follows:
"Order"
"...2nd accused is again explained that if he wants he can give evidence from the dock without being subjected to cross examination or he can give evidence from the witness box on oath subjected to cross-examination of he can call witness."
It is apparent that the directions were not in compliance with the provisions of Section 179 (as amended) of the Criminal Procedure Decree which came to effect on 1st February 2010. This is a miscarriage of justice in the circumstances of the case and to the appellant.
[16] The 2nd Appellant's grounds of Appeal are:-
Ground 1
The appellant made an unsworn statement in Court after the Magistrate glaringly explain the right and manner of giving evidence under Section 179 of the Criminal Procedure Decree 2009 to the appellant (page 17 transcripts of proceedings in the Magistrate Court).
Ground 2
The appellant submitted that as far as the law in concerned the prosecution had the task of proving and to confirm the appellant's participation or involvement in the crime charge.
Ground 3
The appellant submitted that after the victim had made a complaint to the police concerning the robbery he went a few days later to the police station to enquire about his complaint and saw the appellant there. He constantly informed the officer that the appellant is the person who robbed him.
It is suggested that in reality what the victim was doing was giving evidence that when he went to the Police Station he saw and recognized the appellant who robbed him several days earlier.
Ground 4
From the evidence adduced in Court, the appellant denied been the perpetrator as alleged. The identification of the appellant was in issue.
Ground 5
The prosecution version of events on the identification of the appellant was uplifted from the police station where the appellant was per chance seen in the police station by the complainant who alerted the police to his identity.
[17] The grounds of appeal drafted by the appellants who were unrepresented appear to overlap. However, the appellants grounds of appeal can be consolidated in the following manner:
Petitioner's submission on the grounds of appeal
First consolidated ground of appeal
[18] Both appellants submit that the learned Magistrate misdirected himself on the law when he:
(a) Directed that the accused (appellants) could give unsworn evidence without being subject to cross examination by the prosecution.
(b) Failed to inform the accused (appellants) that they have a right to remain silent.
(c) Failed to explain the substance of the charges in conformity with Section 179(1) (a) of the Criminal Procedure Decree.
[19] The appellants submit that the direction by the learned Magistrate that the accused (appellants) had a right to give unsworn evidence was made on the 25/02/2010. However, these directions were not in compliance with the Criminal Procedure Decree 2009 (as amended) which came into effect on 1st February 2010. Therefore the learned Magistrate did err when he gave such directions. The appellants submit that the learned Magistrate also failed to comply with section 179 (1) (a) of the Criminal Procedure Decree, in not explaining the substance of the charge to the accused especially considering that both appellants were unrepresented during the trial. The appellants further submit that the learned Magistrate also failed to inform them that they had a right to remain silent. For these reasons the appellants submit that they should succeed in their first consolidated ground of appeal.
Second consolidated ground of appeal
[20] The appellants submitted that during the trial, the identity was put in issue by the second appellant. There was no identification parade held in this case as the complainant claimed to have identified the appellants at the Police Station, when he went to find out the progress of the investigation. However the appellants claim that they never saw the complainant at the Police station. Further the complainant made dock identification nearly 14 months after the incident. The appellants submit that the uncorroborated evidence of the complainant before being accepted by the learned Magistrate, he should have directed himself on the Turnbull guidelines as to the possibility of a wrong identification being made. Therefore the appellant submit that the prosecution failed to establish the identity of the appellants beyond reasonable doubt at the trial. Since the burden of proving all the necessary ingredients of a charge is on the prosecution, and as the prosecution has failed to discharge this burden, the appellants submit that on the grounds of identity also their grounds of appeal should succeed.
[21] It was the submission of the appellants that due to the aforementioned grounds, that there was a miscarriage of justice and that the convictions and sentences imposed against them by the learned Magistrate should be quashed.
Respondent's submission to the appellants grounds of appeal
First consolidated ground of appeal
[22] The respondent submits that the entitlement to give unsworn evidence was abrogated by section 126(9) of the Criminal Procedure Decree. As such the learned Magistrate clearly erred in law when he directed the appellant that they could give unsworn evidence at the trial. The respondent submits that this was further compounded by the learned Magistrate having considered the unsworn statement of the second appellant in detriment to the appellant in his judgment.
Second consolidated ground of appeal
[23] The respondent submits that the learned trial Magistrate erred in coming to his conclusion in his judgment that the prosecution has proved the identity of the appellants beyond a reasonable doubt. The respondent further submits that the testimony of the victim of the robbery was that after the robbery and after making a complaint to the Police, that he went a few days later to the Police station to inquire about his complaint and saw the two accused there. He informed the officer. The respondent submits that in reality what the victim was doing was giving evidence that when he went to Police station, he saw and recognized the two persons who robbed him several days earlier. Once the victim pointed out the two accused in the Police station then that was the act of identification. As such the respondent submits that act required the scrutiny of the Turnbull criteria. There was no evidence from any police officer who receives the report of recognition by the victim in the police station and then intercepted and charged the two who were then confirmed by the officer's testimony as the two accused in the dock.
[24] The respondent further submitted that, the learned Magistrate had not even considered the standard Turnbull directions that:
"even a convincing witness can be mistaken."
On this too the respondent submitted that the learned Magistrate misdirected himself.
[25] The respondent concedes that they cannot submit that a miscarriage of justice has not occurred in this case.
[26] The respondent further concedes that the proviso to Section 23 of the Court of Appeal Act Cap 12 cannot be applied as the respondent cannot submit that there was no substantial miscarriage of justice.
[27] In the written submissions filed by the respondent the issue of a retrial is left for determination by this court. However, the counsel for the respondent making submissions before this court conceded that no purpose would be served by sending this case for a retrial.
Enlargement of time to Appeal and granting of leave to Appeal
[28] In determining an application for an enlargement of time, the factors that should be considered by court are now well settled and has been clearly stated by the Supreme Court in Kumar and Sinu v The State (CAV 001.2009); 21 August 2012. Apart from the length of the delay and the reasons for the delay the court should also consider whether there is a ground for merit justifying the appellate court's consideration or where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed. The court will also consider whether any unfair prejudice might be caused to the respondent if the appeal were to proceed. In any event the principle involved is whether it would be just in all the circumstances to grant or refuse the application.
[29] The appellant's appeal to the Court of Appeal is late by at least over a year in respect of both appellants. However I am satisfied that the grounds of appeal will probably succeed. Further no unfair prejudice would be caused to the respondent by allowing the appeal to proceed as the respondents have also considered that a miscarriage of justice has occurred in this case to the detriment of the appellants.
[30] Having considered the principles laid down in Kumar and Sinu v The State (Supra) and the submissions of both the appellants and the respondent I hold that it would be just to grant both appellants an extension of time as well as leave to appeal in this case. Having held so, I will now proceed to consider the appeal.
Consolidated First ground of Appeal
[31] At the end of the prosecution case, the learned Magistrate made the direction to the appellants on 25th February 2010 giving them the option of giving unsworn testimony from the dock or to give sworn testimony from the witness box.
[32] The criminal procedure (amendment) Decree 2010 was dated 9/2/2010, however was deemed to have come into force on 1/2/2015. The Amendment Decree abolished the right of an accused to give unsworn testimony.
[33] Therefore when this direction was made by the learned Magistrate on 25/2/2010, this right did not exist. Therefore the learned Magistrate's direction was clearly erroneous and amounts to a misdirection of the law. Further the learned Magistrate later went on to consider the unsworn evidence and act upon it, even though there was no testimonial validity. The learned Magistrate relied on the unsworn testimony of the second appellant, that he did not see the complainant at the Police Station. The learned Magistrate has used this evidence to come to the conclusion that there was no foul play.
[34] In my judgment the learned Magistrate has failed to comply with Section 179(1) (a) of the Criminal Procedure Decree.
Section 179(1) (a) states:-
"Again explain the substance of the charge to the accused."
The court record does not bare such explanation of the charge being made to the appellants. The appellants being unrepresented at the trial it was incumbent on the learned Magistrate to comply with all legal requirements such as Section 179(1) (a) of the Criminal Procedure Decree.
[35] The appellants also submitted that they were not informed of their right to remain silent. Even though Section 179(1) (a) does not give specifically such right, such right is implied in the section. The appellants being unrepresented during the trial I hold that such right should have been expressly stated to the appellants by the learned Magistrate.
[36] For the reasons given above, I hold that the appellant should succeed on the first consolidated ground of appeal.
Consolidated 2nd ground of Appeal
[37] The identity of the perpetrators of an offence is one of the most important ingredients that the prosecution should prove beyond a reasonable doubt. Since the learned Magistrate in his judgment decided to disregard the caution statement (paragraph 10 of the judgment "page 166 of Court Record") the only evidence of identification was the evidence of the complainant.
[38] In this case there was no identification parade held. The complainant says that when he went to the Police Station a few days after the incident, he saw and recognized the two appellants as those responsible for the robbery and that he informed this to a Police Officer.
[39] The prosecution failed to lead evidence of any police officer to say that after receiving such information he acted upon the information and arrested the two suspects. This also leaves a huge gap in the prosecution case in relation to the identification. The only other evidence is the dock identification of the appellants, in Court. Evidence is not clear if the identification relates to the identification of the appellants from the incident or identification of the appellants who were identified by the complainant at the police or both.
[40] The learned Magistrate has failed to consider the Turnbull guidelines and caution himself of such guidelines in his judgment.
[41] In the judgment of Semisi Wainiqolo v The State; AAU 0027.2006; HAC 008.2005, paragraph 9 states:-
"[9] On the other hand, the guidelines in Turnbull's case have been accepted as the law in Fiji. They were stated by Widgery LCJ:
"First, whenever the case against an accused depends wholly or substantially on one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms, the judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as, for example, by passing traffic or a press of people? Had the witness seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent observation to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? ... Finally he should remind the jury of any specific weakness which had appeared in the identification evidence.
Recognition may be more reliable than identification of a stranger but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made."
[42] In this case the absence of an identification parade, the reliance of a dock identification and the learned Magistrate's observation in the judgment that:
"he identified them in a very positive and convincing manner".
makes it imperative that the learned Magistrate should have cautioned himself on the Turnbull principles before accepting the evidence of identity of the appellants.
[43] In Saula Lalagavesi v The State; AAU 045.2007S, HAC 56.2007, in paragraphs 2 – 3 states:
"[2] In convicting Mr. Lalagavesi, the Magistrates' Court did not advert to Turnbull. In his appeal against conviction, again the principle in Turnbull was not adverted to by the High Court.
[3] The appeal goes to a particular aspect of identification evidence directly involving the circumstances relating to the identification; the use to which it can be put; and the care that must be taken by trial courts in ensuring that Turnbull and Semisi Wainiqolo are applied with rigour. This is of fundamental importance to the trial process. The need to pinpoint the error with clarity is essential..."
Therefore I hold that the failure of the learned Magistrate of the Turnbull guidelines resulted in a misdirection of the law.
[44] Based on the above findings I hold that the prosecution has failed to prove the identity of the appellants beyond a reasonable doubt. As such I hold that the appellants would succeed on the second consolidated ground of appeal.
[45] Having concluded that the appellants succeed on both consolidated grounds of appeal I hold that the appellants have satisfied the following requirements of section 23(1) (a) of the Court of Appeal Act:
(i) the conviction cannot be supported having regard to the evidence.
(ii) wrong decision on the law by the learned Magistrate
(iii) there was a miscarriage of justice.
[46] Having held, that the appellants succeed on both grounds of consolidated appeal I would now consider the proviso to section 23(1) (a) of the Court of Appeal Act.
The proviso reads:
"provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal against conviction or against acquittal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has occurred" (emphasis added).
[47] The respondent in my view correctly submitted that the proviso cannot be applied as there had been substantial miscarriage of justice. As such I hold that the appeal of the appellants on conviction is allowed.
[48] The only remaining matter is to consider if a re-trial is justified under the circumstances of this case.
[49] In considering if a re-trial should be ordered when a conviction is quashed the court must consider both the public interest factor in prosecuting this type of offence as well as any prejudice it would cause to the appellant. In Au Pui-Kuen v. AG of Hong Kong (P.C) (1980) AC 351) it is stated:
"The power to order a new trial must always be exercised judicially. Any criminal trial is to some degree an ordeal for the accused; it goes without saying that no Judge exercising his discretion judicially would require a person who had undergone this ordeal once to endure for a second time unless the interest of justice required it..."
and later,
"A court to exercise it judicially may involve the court in considering and balancing a number of factors some of which may weigh in favour of a new trial and some may be against it. The interests of justice are not confined to the interests of the prosecutor and the accused in a particular case. They include the interest of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of a technical blunder of the Judge in the conduct of the trial or his summing up to the jury".
[50] The period from the sentence already served is also to be considered when deciding whether or not to order a re-trial.
In Archbold 2013 at page 1154;
"The decision whether to order a retrial requires and exercise of judgment involving consideration of the public interest and the legitimate interest of the defendant. The former was generally served by the prosecution of those reasonably suspected on available evidence of serious crime, if such prosecution could be conducted without unfairness to or an oppression of the defendant. The legitimate interest of the defendant would call for a consideration of the time which has passed since the alleged offence and any penalty already paid".
[51] The appellants were sentenced to 7 years imprisonment and 6 ½ years imprisonment respectively by the learned Magistrate on 18/5/2010. The non-parole period is 60 months (5 years). The appellants have been in custody for over 5 years. The learned Magistrate has also given them a reduction of their sentences for the period they spent in remand pending trial. ie. 7 months for the first appellant and 2 months for the second appellant.
[52] It is clear that the appellants have served a substantial part of their sentence. I am conscious that public interest demands that crimes of this nature should be dealt with severely. However, as the respondent has correctly submitted no valid purpose would be served by sending this case for a re-trial. I hold that in all the circumstance of this case it is not justified to send the case for a retrial.
Priyantha Fernando JA
[53] I have read the draft judgment and I agree with it.
The Orders of the Court are:
Hon. Mr. Justice Almeida Guneratne
JUSTICE OF APPEAL
Hon. Mr. Justice Shavindra Fernando
JUSTICE OF APPEAL
Hon. Mr. Justice Priyantha Fernando
JUSTICE OF APPEAL
Solicitors:
Appellants appear in Person
Office of the Director of Public Prosecutions for the Respondent.
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URL: http://www.paclii.org/fj/cases/FJCA/2015/152.html