Nacagi v State [2015] FJCA 156; AAU49.2010 (3 December 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU 49, 44 AND 37 OF 2010
(High Court HAC 122 of 2008)

BETWEEN:

JONACANI NACAGI
1st Appellant

PENIJAMINI TUINAVITI
2nd Appellant

SAMUELA VUNISEI
3rd Appellant

EPARAMA NAGALU
4th Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Gamalath JA
Waidyaratne JA

Counsel : Mr. J Savou for the 1st and 2ndAppellants
Mr. S Waqainabete for the 3rd and 4th Appellants
Ms. S Puamau for the Respondent

Date of Hearing : 14 November 2014
Date of Judgment : 3 December 2015

JUDGMENT

Calanchini P

[1] The Appellants were charged with two counts of robbery with violence contrary to section 293(1)(b) of the Penal Code Cap 17, one count of unlawful use of a motor vehicle contrary to section 292 of the Penal Code, one count of damaging property contrary to section 324 of the Penal Code, one count of criminal intimidation contrary to section 330(a) of the Penal Code, one count of acting with intent to cause grievous harm contrary to section 234(a) of the Penal Code and one count of larceny contrary to section 259(1) and 262(2) of the Penal Code.

[2] The particulars of each offence can be briefly summarised. It was alleged that on 5 July 2008 between 1 and 2am at Nasinu the four Appellants broke into Ishwar Narayan's house and violently robbed him of property valued at $5429. After robbing Narayan, it was alleged that the four Appellants unlawfully used Narayan's motor vehicle to flee the scene. It was alleged that they then drove to the Suva Town House Motel and that at about 3.00am on 5 July 2008 violently robbed the receptionist of her gold chain valued at $150 and $600 in cash. It was alleged that the four Appellants then fled the Motel in the same vehicle and shortly afterwards deliberately rammed a pursuing police car and later smashed its windscreen causing $2500 in damage. It was also alleged that the four Appellants then criminally intimidated a police officer who had been a passenger in the pursuing car and attacked and injured the police driver with an iron rod and a piece of timber. Finally it was alleged that when the Appellants abandoned the vehicle at Nasinu Secondary School they stole the car stereo and a CD changer valued at $2000.

[3] Following a trial in the High Court before a Judge sitting with assessors the Appellants were convicted on counts one to four and counts six and seven. On 14 June 2010 they were sentenced to terms imprisonment of 14 years on counts one and three, three months on count two, nine months on count four, five years on count six and nine months on count seven. The sentences were ordered to be served concurrently with a non-parole term of 11 years. In respect of the Appellant Nagalu, the sentencing order was varied since he was already serving a sentence of imprisonment at the time of the trial. His total sentence was 16 years with a non-parole term of 12 years.

[4] The Appellants filed timely applications for leave to appeal against their convictions. All Appellants were granted leave to appeal against conviction by a justice of appeal in separate rulings delivered on 17 June 2013. By the time the appeals came on for hearing before this Court on 14 November 2014 substantially amended grounds of appeal had been filed with the leave of the Court. These grounds were conveniently set out in the written submissions filed on 10 November 2014 on behalf of the Appellants Nacagi and Tuinaviti and the submissions filed on 14 November 2014 on behalf of Nagalu and Vunisei.

[5] The ground of appeal relied upon by Nacagi and Tuinaviti is:

"That the Leaned Trial Judge erred in ruling the confessional statement as admissible evidence when:

i. He failed to apply the burden and standard of proof when he ruled that the answers given in the caution interview were given voluntarily;

ii. There was sufficient suggestion via the medical report that injuries were sustained whilst in police custody thereby negating voluntariness."

[6] A further ground of appeal relied upon by Nacagi is:

"The learned Trial Judge erred in law and in fact when he failed to direct/warn the assessors that they were free to draw their own inferences with reference to the totality of the charges against the Appellant."

[7] The ground of appeal against conviction relied upon by Nagalu is:

"That the learned Trial Judge erred in law and in fact when during the summing up he gave an indication of his own view without any adequate warning given to the assessors that they were free to draw their own inferences."

[8] The ground of appeal against conviction relied upon by Vunisei is:

"The learned Trial Judge erred when he ruled in the voir dire inquiry that the confessional statement as admissible evidence as the statement was not voluntarily made as the medical report showed that he had sustained injuries whilst in police custody."

[9] The Appellants Nacagi, Tuinaviti and Vunisei are challenging the decision of the trial Judge to admit their caution statements into evidence. The Appellants Nacagi and Nagalu challenge the directions given by the learned Judge to the assessors in his summing up relating to any view expressed by him on the evidence and their right to disregard that view and form their own opinions and draw their own inferences.

[10] So far as the admissibility of the caution interviews is concerned, it is not in dispute that the learned trial Judge did fairly summarise the evidence given by the prosecution witnesses and the three Appellants who were challenging the admission into evidence of their caution interviews on the basis that they had not been made voluntarily. The same evidence has been summarised by Waidyaratne JA in his judgment. I do not consider it necessary to repeat the evidence in this judgment. However, having read the voir dire ruling I am not satisfied that the learned Judge summarised the medical evidence called by the Appellants to support their claim that they had been assaulted before and during the making of their caution statements.

[11] I agree with Waidyaratne JA that the learned Trial Judge was required to analyse that evidence, determine whether he accepted the medical evidence and indicate the weight to be given to that evidence. I also agree with Waidyaratne JA that the learned Judge has concluded that the caution statements were made voluntarily without any indication that he had considered, analysed and accepted or rejected that medical evidence.

[12] The significance of the medical evidence adduced during the voir dire by the Appellants is that it is independent evidence. The issue is whether it supports the allegations of assault made by the Appellants. As the learned trial Judge noted in his Ruling the Respondent's version of events is completely at odds with the three Appellants' versions of events. If that remained the position without any other evidence, then clearly the trial Judge must ask himself, based on credibility, has the Respondent established beyond reasonable doubt that the caution statement were made voluntarily. However the introduction of independent medical evidence called by the Appellants added a further dimension to the issue which must be considered by the trial Judge. It is not just a matter of assessing the credibility of the Respondent's witnesses and the Appellants. Nacagi produced a medical report dated 10 July 2008 following a medical examination at the Valelevu Health Centre on the same day. As the learned Judge noted there are injuries listed on page 2 of that report. Nacagi also called Doctor Nakabea who produced a report concerning the result of Nacagi's x-ray on 1 April 2010 which revealed a healed bone injury on his right leg. The Doctor's conclusion appears on page 246 of the record as:

"The fracture is more than 1 month old. It is also possible to be more than 1 year old. The injury would be caused by direct impact of an object or sports related. The impact must be quite strong."

[13] There were also medical reports tendered in respect of Tuinaviti and Vunisei. All the reports indicated recent injuries of varying degrees of seriousness. The learned Judge has made only passing reference to the medical evidence and has offered no assessment as to weight if any to be attached to that evidence when he concluded that the caution statements had been made voluntarily.

[14] The question at this stage is what approach should be taken by this Court to an appeal that challenges confessions made by the Appellants in caution statements that, after a voir dire hearing, were found by the trial Judge to have been made voluntarily, that is, without violence or the threat of violence. In Rahiman –v- The State (CAV 2 of 2011; 24 October 2012) the Supreme Court referred to the observations of Lord Salmon in Director of Public Prosecution –v- Ping Lin [1975] 3 WLR 419 at page 445:

"The Court of Appeal should not disturb the judge's findings merely because of difficulties in reconciling them with different findings of fact on apparently similar evidence in other reported cases, but only if it is completely satisfied that the judge made a wrong assessment of the evidence before him or failed to apply the correct principle – always remembering that usually the trial judge has better opportunities of assessing the evidence than those enjoyed by an appellate tribunal."

[15] In my judgment the absence of any analysis of the independent medical evidence and the absence of any indication as to how much, if any, weight ought to be attached to that evidence represent a wrong assessment of the evidence. The task of assessing the evidence went beyond merely assessing the credibility of the Respondent's witnesses and the evidence given by the three Appellants challenging the admission into evidence of their caution statements. Furthermore I am satisfied that had the learned Judge assessed the independent medical evidence he would have reached the conclusion that the Respondent had failed to establish beyond reasonable doubt that the three caution statements had been made voluntarily. I find that this ground of appeal raised by three of the Appellants has succeeded. The caution statements should not have been admitted into evidence. The remaining Appellant Nagalu had not made any confession in his caution statement. It should be noted that the Appellant Nagalu was, however, convicted on all seven counts in the amended information along with the other three Appellants whose caution statements had been admitted into evidence.

[16] The second ground of appeal relied upon by the Appellant Nacagi and the only ground of appeal relied upon by the Appellant Nagalu both complain about the directions given by the learned trial Judge to the assessors in the course of his summing up. In particular both Appellants claim that the learned Judge had failed to warn or direct the assessors that they were free to draw their own inferences from the evidence. Nagalu also claimed that this was even more so a requirement since the Judge had expressed his own view in relation to certain aspects of the evidence.

[17] The issue raised by the Appellant Nagalu in the written submissions filed on his behalf concerns the last sentence in paragraphs 46 and 47 of the summing up. The learned Judge summarised the evidence given by the driver and the passenger in the Police vehicle that was rammed by the vehicle with registration 'Media 1'. The evidence given by the two policemen went to the identification of Nagalu as the driver and as to the damage caused to the police vehicle. At the end of each paragraph the learned Judge concludes with the following:

"Are there any special weaknesses in Mitieli's identification evidence against accused No.1? There appeared to be none."

"Are there any special weaknesses on Constable Sachin's identification evidence? There appeared to be none."

[18] In my judgment it was not necessary for the learned Judge to repeat the direction that he had given to the assessors in paragraph one of his summing up when he said:

"On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact."

[19] The case for the Appellants was that, although it was not disputed that the offences had taken place, they were not the culprits. It was not them. The learned Judge had stated that clearly in his summing up. The cross-examination of the police driver and police passenger was based on that defence and that the witnesses were mistaken. The cross-examination of the police witnesses did not add anything to the evidence already given. More significantly, the Appellant Nagalu did not give any evidence at the trial and as a result there was no other material for the trial judge to place before the assessors for their consideration. The comment by the learned Judge indicated to the assessors that since there was no other evidence to be considered in relation to the identification of the Appellant Nagalu, there appeared to be no weakness in the evidence. That was the view expressed by the Judge but as he had previously indicated it was open to the assessors to either accept or reject that view after they had considered all the evidence. This ground of appeal, so far as it goes, is not made out.

[20] The complaint by the Appellant Nacagi appears to be a general challenge to the summing up as a whole. Although Counsel has identified two specific complaints, one concerning the evidence of the mobile phone and the other concerning the remarks relating to a later X ray, they were matters that the assessors were free to accept or reject in their deliberations. This was conceded by Counsel for the Appellant Nacagi. For the same reasons I reject this ground of appeal.

[21] On the issue of challenging the directions given by the trial judge to the assessors, particularly when the complaints relate to the facts, as distinct from any observations on the law, it is useful for Appellants and Counsel to keep in mind the observations of the Privy Council in Ragho Prasad –v- The Queen (1982) 28 FLR 154 at 156:

"_ _ _ where as in Fiji the mode of trial is not the same as in England or Scotland. There is no jury; the trial is before a judge and assessors _ _ _. The judge sums up to them; each then states his individual opinion as to the guilt of the accused; although permitted to consult with one another, they are not obliged to do so: and the ultimate decider of fact (as well as law) is the judge himself who need not conform to the opinions of the assessors, even though they may be unanimous, if he thinks that their opinions are wrong. The field of comment upon evidence that is proper to a judge in summing up to a jury in a trial in which they are collectively the exclusive deciders of fact is not necessarily the same as in summing up to assessors whose function it is to help the judge in making up his own mind as the sole ultimate determiner of fact."

[22] In summary the Appellants Nacagi, Tuinaviti and Vunisei are successful in their ground of appeal concerning the admission of their caution statements into evidence. The grounds of appeal relied upon by Nacagi and Nagalu in relation to the directions given in the summing up are rejected. The issue then is what is the outcome of the Appellants' appeals?

[23] Although the Appellant Nagalu relied on only one ground of appeal which has been rejected, this Court should consider the effect of the wrongful admission of the caution statements on his conviction. There are also issues arising out of the identification evidence. The issue in relation to Nagalu's appeal is whether there has been a miscarriage of justice under section 23 of the Court of Appeal Act. The position in respect of the Appellants Nacagi, Tuinaviti and Vunisei is different. Their ground of appeal challenging the admission of their caution statements has been successful. The issue for this Court now is to determine whether their appeals should be allowed in accordance with section 23 of the Court of Appeal Act which, so far as relevant, states:

"23(1) The Court of Appeal:-

(a) on any such appeal against conviction shall allow the appeal if they think that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before whom the Appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal

(b) _ _ _;

Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal against conviction _ _ _ might be decided in favour of the Appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has occurred."

[24] Before considering the application of section 23 to the present appeal it is necessary, so as to avoid any misunderstanding concerning the powers of the Court, to restate the fundamentals of the criminal appeal regime in Fiji, First, just as the appeal is a creation of statute so also is the Court of Appeal. It follows that this Court's powers in criminal appeals are derived from and are confined to those given by the Court of Appeal Act. (See R v. Jeffries [1969] 1 QB 120 and R v Collins [1970] 1 QB 710).

[25] Secondly section 23 of the Court of Appeal Act (including the proviso) is in the same form as the former section 4(1) of the Criminal Appeal Act 1907 (UK). The English legislation was subsequently amended in 1966, 1977 and 1995 to the point where now the only ground for allowing a criminal appeal against conviction is whether the conviction is unsafe. There is no longer any proviso in the English legislation. However section 23 has remained unchanged and as a consequence unsafe and or unsatisfactory verdicts or convictions are not grounds upon which the Court of Appeal in this country may determine the outcome of an appeal against conviction.

[26] It follows therefore that in considering case law that may offer guidance on the determination of criminal appeals it must be borne in mind that such assistance can only be derived from English cases that were decided prior to the amendments to section 4(1) that came into effect in 1966.

[27] Section 23 of the Court of Appeal Act requires (and section 4(1) of the Criminal Appeal Act 1907 required up to 1966) the court to allow an appeal if the court thinks (i) that the verdict was unreasonable; or (ii) could not be supported by the evidence; or (iii) that the judgment of the trial judge should be set aside on the ground that there was a wrong decision on a question of law; or (iv) that on any ground there was a miscarriage of justice. Given the limitations on the court's jurisdiction to allow an appeal under section 23(1) it is necessary to assess the consequence of the wrongful admission of the caution statements of three of the Appellants into evidence. The principle that should be applied was conveniently stated in an earlier edition of "Archbold: Pleading Evidence and Practice in Criminal Cases" 36th Edition, 1966.

At paragraph 928 the following is stated:

"Where it is established that evidence has been wrongfully admitted, the court will quash the conviction unless it holds that the evidence so admitted cannot reasonably be said to have affected the minds of the jury in arriving at their verdict, and that they would or must inevitably have arrived at the same verdict if the evidence had not been admitted. In considering this question the nature of the evidence so admitted and the directions with regard to it in the summing up are the most material matters."

[28] It must be recalled that in Fiji a criminal trial is by judge sitting with assessors and not trial by jury. It follows that the references in section 23(1) to the "verdict" must be construed as a reference to the verdict of the judge which is pronounced in a judgment following receipt by the Judge of the opinion of each of the assessors. A verdict is, of course only required when there is a plea of not guilty. The reference to the word "judgment" in section 23(1) must be construed as a reference to a judgment entered on a plea of guilty.

[29] Whether the wrongful admission of evidence will result in the quashing of a conviction depends upon the application of the proviso to section 23(1). The Court of Appeal (England) in R –v- Redd [1923] 1 KB 104 discussed the application of the proviso and at page 109 observed:

"In the present case no doubt there was substantial evidence upon which the jury might have convicted the appellant apart from this evidence. If however the Court comes to the conclusion that the jury might have entertained a doubt as to the guilt of the Appellant if this evidence had not been given it is sufficient to prevent the proviso to section 4 being applied."

[30] The issue comes down to this. Was their sufficient evidence adduced at the trial upon which the Judge would or must have arrived at the same verdict apart from or without the three caution statements of the Appellants. This question can only be answered after a consideration of the nature of the evidence, the directions given by the trial Judge to the assessors and to himself and the reasons, if any, in the judgment convicting the Appellants.

[31] In his judgment the learned trial Judge stated that he accepted the unanimous opinions of the assessors and found the four Appellants guilty on four courts being counts 1, 2, 3 and 7. He accepted the unanimous and majority opinions on counts 4 and 6 and found the four Appellants guilty on count 4 and 6. The Judge then proceeded to formally convict all four Appellants on counts 1, 2, 3, 4, 6 and 7. They were acquitted on count 5 as a result of the not guilty opinions of the assessors with whom the trial Judge agreed. There was however no indication in the judgment as to the evidence that the Judge relied upon when he agreed with the opinions of the assessors and found the Appellants guilty on the six counts. The learned Judge has instead stated the evidence which he considered the assessors had accepted when they reached their opinions in respect of the six counts. As with juries, there is no requirement for the assessors to state the evidence upon which they have relied in reaching their opinions.

[32] Consequently the nature of the evidence adduced at the trial and the directions which the learned Judge gave to the assessors and himself are the matters relevant to the application of the proviso.

[33] It does not appear to be in issue that the facts to which reference is made in paragraph 27 of the summing up were uncontested facts. It is useful to state those facts again in this judgment.

"(i) That between 1am and 2am on 5th July 2008, approximately four men broke into Ishwar Narayan's residence at Laucala Beach Estate, and violently robbed him of $5,429 worth of properties, the details of which were contained in count No.1;

(ii) After robbing Ishwar Narayan, the four men fled in his motor vehicle, registration number "MEDIA 1", without his permission;

(iii) The four men then proceeded to Suva Town House Motel, approximately before 3am, in "MEDIA 1, and violently robbed its receptionist, Ms. Vitinia Tuisavura, of her gold chain worth $150, and $600, in her custody;

(iv) The four men then fled from Suva Town House Motel in "MEDIA 1" towards Princes Road, Tamavua, where they were spotted and pursued by a police motor vehicle, registration number GN 356. GN 356 was driven by Acting Corporal Mitieli Divarua. Detective Constable Sachin Chand was sitting in the front seat;

(v) At Lakeba Street, Tamavua, "MEDIA 1" rammed and collided headon with GN 356, causing its engine to stop and its doors to automatically lock. For men jumped out of "MEDIA", armed with iron rods and pieces of timber. They came towards the police car in a threatening manner. They smashed the windscreen with the iron rods and pieces of timber. Constable Sachin Chand was intimidated by the men. He jumped through the police car window, and fled to a nearby house for safety.

(vi) One of the men took a piece of timber and smacked Acting Corporal Mitieli Divarua on the face, while he was still seating on the driver's seat. He was wounded on the face. Then another three of them rushed towards Mitieli and attacked him with iron rods and pieces of timber. He was further wounded as a result;

(vii) After a while, the men got back in "MEDIA 1", and fled from the scene towards Nasinue Secondary School. "MEDIA 1" was abandoned there by the men, and its Kenwood car stereo and CD changer, worth $2,000, were stolen."

[34] It is apparent that these facts were established as a result of evidence given at the trial apart from the caution statements. It was for the Respondent to establish beyond reasonable doubt that the four men mentioned in the above paragraphs (i – vii) were the four Appellants. It is for this Court to determine whether the trial Judge would have arrived at the same conclusion if the caution statements had not been admitted into evidence.

[35] Apart from the caution statements, the Respondent relied upon identification evidence and circumstantial evidence. The only identification evidence was given by the two policemen who were the driver and passenger in the police vehicle that pursued vehicle registered 'Media 1' being the vehicle that had been reported stolen by its owner following a violent robbery earlier that night at the owner's house. Between them the two policemen identified three out of the four who had assaulted them and damaged the police vehicle.

[36] The identification and circumstantial evidence may be briefly summarised. The home owner victim of the first robbery with violence offence stated that the intruders wore masks. The witness said that the offenders fled in his Landcruiser registered as "Media 1". The victim of the second robbery with violence charge stated that later the same night a number of men wearing masks got out of the vehicle registered "Media1" and entered the Suva Town House Motel. They took cash and an item of jewellery. The men fled the motel in the same vehicle registered "Media 1."

[37] The driver of a police vehicle and his passenger attended at the scene of the first robbery and were informed that the offenders had fled in a vehicle registered 'Media 1'. Later whilst driving along Princes Road in Tamavua the same two police officers observed vehicle registered 'Media 1' in the vicinity of the new American Embassy. In Lakeba Street the police vehicle was rammed by 'Media 1'. The police driver could not get out through his door which was jammed. His police passenger had jumped through his window to get out of the police vehicle.

[38] The Police driver said that one of the passengers in 'Media 1' got out carrying a piece of timber. This person was not wearing a mask. (P.256 of the Record). The person smashed the windscreen with the timber and the face of the police driver who was still sitting in the police car. The police driver stated that he clearly saw the face of the assailant. He recognised the assailant as someone whom he had seen before. He identified the person as accused No.3 being the Appellant Tuinaviti. The police driver said that he observed Tuinaviti for about 3 to 4 minutes. There was sufficient lighting from nearby houses and the headlights of 'Media 1' for the police driver to identify and recognise the assailant. Three others then got out of the vehicle 'Media 1' and came over to the police vehicle and assaulted the police driver. He said they were not wearing masks. (P.256 of the Record). He recognised one of them as well. 'Media 1' then approached the police vehicle and the police driver saw the face of the driver clearly. The police driver was cross-examined by three of the four Appellants with a view to establishing mistaken identity due to poor lighting and insufficient opportunity to allow positive identification.

[39] The passenger in the police car gave evidence which was in some significant respects at odds with the evidence of the police driver. He stated that he saw 4 men leave 'Media 1'. Two approached him and two approached the driver. He stated that the four were wearing masks. (P.260 of the Record). The only person he could identify was the person driving 'Media 1' who was not masked.

[40] At an identification parade conducted some 4 days later the police driver identified Accused No.1 being the Appellant Nagalu and Accused No.2 being the Appellant Nacagi. He had recognised accused No.3 at the time of the assaults as the Appellant Tuinaviti. The police passenger was only able to identify the Accused No.1 being the Appellant Nagalu.

[41] The only identification evidence upon which the Respondent relied at the trial was given by these two policemen. On a critical point one has said the assailants did not have their faces covered. The other has said that they were wearing masks. In addition, the circumstances under which the two policemen found themselves must cast some doubt on the reliability of their evidence.

[42] In summary, the following is the position. The home owner could not identify any of the offenders as they were masked. The receptionist at the Motel could not identify any of the offenders as they were masked. The policemen sitting in the passenger seat of the police vehicle stated that the four men who got out of 'Media 1' were masked. When he saw them approaching the police vehicle he panicked, jumped out of the police vehicle and ran into a compound which was not fenced. Despite this he said he was able to identify the driver of 'Media 1' who was apparently, at one stage, presumably sitting in the driver's seat, only about 5 – 7 footsteps away from him. The driver of the police vehicle recognised one of the assailants whom he said was not masked. The police driver also said that none of the others who got out of 'Media 1' were masked. He also identified the driver of 'Media 1'. It is at any time difficult to identify a driver of a motor vehicle at night time and even more so when the observer is either under attack from others or has panicked and fled. It is also questionable as to how effective house lights would be at 3.00a.m in what must otherwise have been a quiet suburban street. Neither the police passenger nor the police driver gave any evidence as to the quality of the street lighting at the place where the assaults took place. There is also always a certain amount of difficulty when looking at night into the headlights of another vehicle. The evidence was that the headlights of 'Media 1' remained on at all times. The headlights of the police car were damaged on impact and were not operating at the time of the assaults.

[43] It must be stated that the trial Judge has not referred in his summing up to the significant inconsistency concerning the issue of masks. As a result, in my judgment it is not possible to conclude on this evidence that the trial Judge would or must have arrived at the same conclusion apart from the caution statements of the Appellants Nacagi Tuinaviti and Vunisei. The identification evidence against them does not establish guilt beyond reasonable doubt. The circumstantial evidence concerning the discovery of a mobile phone belonging to the robbery victim at the home of one of the Appellants four days after the incidents does not establish guilt beyond reasonable doubt against that Appellant.

[44] The appeals against conviction are allowed in respect of the Appellants Nacagi, Tuinaviti and Vunisei on the basis that the guilty verdicts cannot be supported having regard to the evidence.

[45] The appeal against conviction by Nagalu falls to be considered on a slightly different basis. I am inclined to allow his appeal for two reasons. The Respondent did not have a confession from Nagalu. The case against Nagalu rested entirely on the identification evidence. It seems to me to be more than just a co-incidence that despite the limitations and difficulties faced by both policemen at the time of their being assaulted, they were both able to identify the driver as Nagalu with such certainty so as to establish the Respondent's case. Secondly, I have some reservations about the effect of the wrongful admission of the caution statements on the fate of Nagalu. There is the risk that the evidence in the form of the caution statements had the effect, like a magnet, of pulling Nagalu into the realm of guilt, even though any mention of Nagalu in those statements could not be used as evidence against him.

[46] In my judgment the failure of the trial Judge to direct himself on the inconsistencies surrounding the identification evidence and the wrongful admission of the caution statements resulted in a miscarriage of justice in relation to the conviction of Nagalu, I am not prepared to apply the proviso in his case as I am not prepared to conclude that there has been no substantial miscarriage of justice.

[47] For all of the above reasons I would allow all four appeals against conviction.

[48] The remaining issue is the requirement to consider whether this Court should order a new trial. Section 23(2) states:

"Subject to the provisions of this Act, the Court of Appeal shall:

(a) If they allow an appeal against conviction either quash the conviction and direct a judgment and verdict of acquittal to be entered, or if the interests of justice so require, order a new trial; and

(b) _ _ _ "

[49] In my judgment this Court should not order a new trial. The offences occurred in July 2008. It would be 8 years later in the event that a new trial were to take place. The inconsistent evidence given by the two policemen concerning the masking of the four men who got out of 'Media 1' remains on the record. Any evidence given at a new trial concerning the identification of the driver of 'Media 1' is more likely to be based on reconstruction rather than on memory. The identification evidence at a new trial will be no more persuasive than it was at the first trial. In my judgment even after a forensic analysis of the same identification evidence at a new trial, the judge would be left with no choice but to conclude that the prosecution had not established the guilt of the Appellants beyond reasonable doubt. Finally, in my opinion the interests of justice do not require that a new trial should be ordered to enable the Respondent to adduce new evidence when the caution statements have been ruled inadmissible.

[50] Although three of the Appellants have served less than half of the non-parole term of 11 years, this of itself is not a sufficient basis for ordering a new trial. Furthermore even though the Appellant Nagalu may still be serving a pre-existing sentence that also is not a reason for ordering a new trial. I have concluded that the interests of justice do not require a new trial and that verdicts of acquittal should be entered.

Gamalath JA
[51] I agree that the appeals against conviction should be allowed and verdicts of acquittal entered for the reasons stated by Calanchini P.

Waidyaratne JA
[52] These appeals are by the above Appellants against their convictions and sentences. The Appellants were charged in the High Court of Suva on seven counts as follows:

Count 1 Robbery with violence contrary to section 293(1)(b) of the Penal Code

Count 2 Unlawful use of motor vehicle contrary to section 292 of the Penal Code

Count 3 Robbery with violence contrary to section 293(1)(b) of the Penal Code

Count 4 Damaging property contrary to section 324 of the Penal Code

Count 5 Criminal intimidation contrary to section 330(a) of the Penal Code

Count 6 Act with intent to cause grievous harm contrary to section 224 (a) of the Penal Code

Count 7 Larceny contrary to section 259(1) and 262(2) of the Penal Code

[53] In the High Court of Suva, the 1st Appellant was tried as the 2nd Accused, the 2nd Appellant was tried as the 3rd Accused, the 3rdAppellant was tried as the 4th Accused and the 4th Appellant was tried as the 1st Accused. However in order to avoid any confusion, the Appellants are hereinafter referred to in their last names in the judgment.

[54] On 21 April 2010, after trial before the assessors, all appellants were found guilty on all counts save for the 5th count. They were then convicted accordingly and were acquitted of the 5th count.

[55] On 14 June 2010, the Appellants were sentenced to 14 years imprisonment on counts 1 and 3, 3 months imprisonment on count 2, 9 months imprisonment on count 4, 5 years imprisonment on count 6 and 9 months imprisonment on count 7. The sentences were to run concurrently with a non parole period of 11 years. Mr. Nagalu at the time of sentencing had a previous sentence of 6 years. The learned Sentencing Judge ordered Mr. Nagalu's sentence of 14 years to be served partially concurrent and partially consecutive to the 6 year term previously imposed. Therefore, 10 years of the 14 year sentence is to be served consecutive to the previous 6 year sentence, and the remaining 4 years to be served concurrent. Accordingly, Mr. Nagalu was sentenced to a total of 16 years imprisonment from 18th December 2009, with a non-parole period of 12 years.

[56] The Appellants appealed against their conviction and leave was granted by the Hon. Single Judge in separate rulings on 17th April 2013. Thereafter, in written submissions the Appellants have substantially amended grounds of appeal. Therefore, I would consider the following grounds of appeal as raised by the appellants in their respective written and oral submissions.

(a) That the learned trial judge erred in ruling the confessional statements as admissible evidence when:

1. He failed to apply the burden and standard of proof when her ruled that the answers given in the caution interview statements were given voluntarily;
   
2. There was sufficient suggestion via the medical report that injuries were sustained whilst in police custody thereby negating the voluntariness.
   

(b) The learned trial judge erred in law and in fact when he failed to direct / warn the Assessors that they were free to draw their own inferences with reference to the totality of the charges against the appellant.

(c) The Learned Trial Judge erred in law and in fact when during the summing up he gave an indication of his view without any adequate warning given to the assessors that they were free to draw their own inferences.

(d) The Learned Trial Judge erred when he ruled in the voir dire inquiry that the confessional statement was admissible as the statement was not made voluntarily and as the medical report showed that he had sustained injuries whilst in police custody.

[57] Taking into account the fact that caution interview statements alleged to have been made by Mr. Nacagi, Mr. Tuinaviti and Mr. Vunisei constitutes a significant part of the prosecution case against them, I am of the view that it is more appropriate to consider the grounds of appeal at paragraphs 7(a) and (d) first.

[58] The above two grounds of appeal are in relation to the admissibility of the caution interview statements and the failure to consider medical evidence when deciding to admit those statements. It is contended that the learned trial judge erred in failing to adopt the correct legal tests in admitting these caution interview statements.

[59] It is imperative to consider in detail the evidence led during the voir dire in order to determine above grounds of appeal.

[60] Mr. Nacagi had been caution interviewed on 8 July 2008 by Police Constable 2808 Ifereimi and witnessed by A/Cpl 3169 Paula. Mr. Tuinaviti had been caution interviewed on 14 July 2008 by Detective Constable Clint without a witnessing officer. Mr. Vunisei had been caution interviewed by Detective Constable 2660 Apisai witnessed by Detective Constable 2500 Sanjay.

[61] All above five witnesses had testified at the voir dire Inquiry for the prosecution. In addition, four other witnesses who are also police officers had testified for the prosecution. Hence, the prosecution has presented evidence of all these nine witnesses to establish the case that the caution interview statements of Mr. Nacagi, Mr. Tuinaviti and Mr. Vunisei were voluntary.

[62] Mr. Nacagi in his testimony at the voir dire inquiry admitted that he was arrested on 8 July 2008. He testified that while in police custody inside a room Detective Namata Vinaya repeatedly jabbed the back of his head. Further, he stated that Detective Constable 3685 Viliame Vereivalu punched him in the left jaw at the same time. Thereafter, he stated that Detective Constable Namata Vinaya beat his back three times with a stick and then again beat him on his right leg with another stick. Mr. Nacagi also stated that he was injured and was limping.

[63] Police Constable 2888 Ifereimi and witnessing police officer A/Cpl 3169 Paula had refuted and denied that Mr. Nacagi was assaulted by any of the police officers while in police custody. They had stated that the Mr. Nacagi was cooperative during the caution interview. Detective Constable 4322 Namata Vinaya in his cross examination had denied assaulting Mr. Nacagi in general and had specifically denied the allegation that he assaulted or hit Mr. Nacagi on his leg with a stick. Further, he had stated that he did not see any injuries on Mr. Nacagi. Police Constable Viliame Vereivalu in cross examination had denied that he punched the Mr. Nacagi on his jaw as alleged by Mr. Nacagi and further, that he was not involved in the arrest of Mr. Nacagi.

[64] Mr. Nacagi in his testimony had stated that he was subject to medical examination at the Valelevu Health Centre on 10 July 2008 and produced a medical report dated 10 July 2008. The injuries are referred to in paragraph 13(b) of the report.

[65] Mr. Nacagi through Dr. Paula Nakabea, a Radiologist, produced a report pertaining to a healed bone injury in the right leg of his. This report had been compiled based on an x-ray report dated 1 April 2010. The doctor in his evidence could only opine that the injury may be sports related or caused by a strong impact. Thus, the medical evidence was inconclusive of the cause of the injury.

[66] In the voir dire proceedings of Mr. Tuinaviti, the prosecution Detective Constable 4322 Namata Vinaya in cross examination admitted that he arrested Mr. Tuinaviti but specifically denied that any assault on Mr. Tuinaviti by him or any other police officer. Detective Constable 2995 Clint admitted that he caution interviewed Mr. Tuinaviti on 14 July 2008 at 3.15 p.m. at Nabua Police Station. He denied seeing any visible injuries. He totally denied forcing or threatening Mr. Tuinaviti to make or sign the caution statement.

[67] Mr.Tuinaviti in his evidence had admitted that he was arrested on 13 July 2008 at his village in Dakuivuna Wainibuka by Detective Constable 4322 Namata Vinaya and a group of police officers but denied making the caution statement voluntarily. Further, Mr. Tuinaviti had stated that he was beaten on his back, legs, ribs and face with police batons as soon as he got into the police vehicle and as a result he sustained injuries on his face and felt pain in his body. He further stated that he was punched and kicked after the police identification parade at the police station.

[68] Further, Mr. Tuinaviti stated that he was medically examined and his medical report dated 17 July 2008 was tendered to court. This report reflects a discolouration of his left eye.

[69] The wife of Mr. Tuinaviti testified and stated that she saw Mr. Tuinaviti injured in the left eye at the time he was arrested.

[70] Cpl. 2660 Apisai Dredreyara and Cpl. Sanjay had caution interviewed Mr. Vunisei and denied assaulting or forcing Mr. Vunisei to make the statement. He also had stated that no other police officer assaulted Mr. Vunisei and did not observe any visible injuries on him.

[71] Mr. Vunisei had admitted that he was caution interviewed on 15 July 2008 but that it was involuntary as he was assaulted by police at Nausori Police Station. He had stated that he was punched in the ribs, hit on his back with a chair and as a result suffered injuries. Further, he had stated that he was beaten on his hands with a stick and it became swollen and that he was hit on his leg. He had admitted that though he was hit and injured in the back there was no bruising. He also had stated that he complained to the Nasinu Magistrate and later he was medically examined on 17 July 2008. Mr. Vunisei in cross examination stated that the doctor who examined him did not note all injuries sustained by him though he reported it to the doctor. The medical report submitted on behalf of Mr. Vunisei indicated a swelling in the right hand of Mr. Vunisei and opined that it may be due to punching or defending injuries.

[72] The learned trial judge in his ruling dated 12th April 2010, on the admissibility of the caution interview statements, at paragraph [4] had set out the correct legal position relating to the admissibility of such statements. He had further explained the burden and the standard of proof required to establish voluntariness.

[73] Having laid out this legal position, the trial judge had narrated the evidence presented by each appellant and the prosecution correctly and had observed that versions of events as presented by the two parties are completely at odds against each other.

[74] I observe that the medical evidence presented on behalf of the appellants play a significant role in determining the admissibility of the caution statements. Under these circumstances the learned trial judge is expected to consider whether he accepts medical evidence or not. If he decides to accept this evidence the learned trial judge is expected to have considered whether such evidence supports the version given by the appellants and thereby a reasonable doubt is created in the version given by the prosecution.

[75] On an examination of the ruling on the trial within a trial dated 12th April 2010, I observe that the learned trial judge has failed to consider the medical evidence in the manner described in the above paragraph.

[76] In view of the above failure, I hold that the trial judge had erred in admitting the caution statements of Mr. Nacagi, Mr. Tuinaviti and Mr. Vunisei. These caution interview statements have contributed to the final verdict against them.

[77] As a result, I hold it is unsafe to allow the convictions of Mr. Nacagi, Mr. Tuinaviti and Mr. Vunisei to stand. Therefore, the convictions of Mr. Nacagi, Mr. Tuinaviti and Mr. Vunisei on counts 1, 2, 3, 4, 6 and 7 would be quashed.

[78] On the perusal of the three caution interview statements I observe that there is reference to Mr. Nagalu's involvement in the series of the alleged offences. The trial judge in his summing up had directed the assessors to use each caution interview statement only against the respective maker of the statement. However, I am of the view that there is a risk in allowing the conviction of Mr. Nagalu to stand as there is no specific direction to the assessors not to use any of those statements in determining the case against him.

[79] Therefore, the conviction of Mr. Nagalu on counts 1, 2, 3, 4, 6 and 7 is also quashed.

[80] In view of the above determination I am of the view that I should further consider whether this is a fit case to act under section 23(2)(a) of the Court of Appeal Act, Cap. 12.

[81] Therefore, I will now consider the grounds of appeal at paragraph 7(a)(i) and (b).

[82] The learned trial judge in the current case has placed the respective versions presented by the two parties and had assisted the assessors by emphasizing that the two positions are contradictory to each other.

[83] In my view, doing so the trial judge had not acted unreasonably or unfairly. In this process at no stage has the learned trial judge expressed his views on the truth or otherwise of the either of these versions. Further no comment was made to influence the assessors in favour of either side. Therefore, the impugned observation that "defence's case was at odds with the prosecution" cannot be interpreted as biased towards either party.

[84] I am of the view that that the submission by the Appellants with reference to the judgment in Fraser v. State [2012] FJCA 87; AAU0018.2011 (30 November 2012) has no relevance to this ground of appeal.

[85] Therefore, I hold that there is no merit in the above ground of appeal.

[86] I now proceed to deal with the ground of appeal referred to at paragraph 7(b).

[87] The Appellants submitted that the learned trial judge had failed to adequately direct the assessors that they were free to draw their own inferences with reference to the totality of the evidence relating to the charges. Further Mr. Nacagi submitted that the trial judge erred when he directed the assessors to consider the recovery of a stolen mobile phone from him as an item of circumstantial evidence against him. This submission is based on the fact that the prosecution failed to produce this mobile phone at the trial.

[88] According to the evidence of the prosecution, on 5 July 2009 between 1.00 a.m. and 2.00 a.m. 5 to 6 people had forcibly entered the house of Ishwar Narayan and robbed properties valued at $5,429.00. These persons after committing the aforesaid robbery had unlawfully used Ishwar Narayan's motor vehicle bearing registration number 'MEDIA 1' and fled the scene in the said vehicle. Thereafter, around 3.00 am four persons had arrived at Suva Town House Motel at around 3.00 a.m. and violently robbed $600 cash and a gold chain valued at $150 from a receptionist Vitinia Tuisavara. Thereafter, the vehicle bearing registration number 'MEDIA 1' had deliberately crashed into a pursuing police car bearing registration number GN356 and thereby caused damage to the car amounting to $2,500. Three persons who came in MEDIA 1 had intimidated Detective Constable 3679 Sachin Nand who was an occupant of the police car. They had also assaulted and injured Acting Corporal 2521 Mitieli Divarua the driver of the police car. After the alleged assault, the same group of persons then had fled in the car bearing registration number 'MEDIA 1' and abandoned the same after stealing the vehicle stereo and the charger valued at $2,000.
The above facts were testified to by witnesses Ishwar Narayan, Vitinia Tuisavara, Constable 3679 Sachin Nand and Acting Corporal 2521 Mitieli Divarua.at the trial.

[89] Constable 3679 Sachin Nand identified Mr. Nagalu as the person who was the driver of 'MEDIA 1' and Acting Corporal 2521 Mitieli Divarua identified Mr. Nacagi, Mr. Tuinaviti and Mr. Nagalu at the time the police car which was driven by him was rammed by 'MEDIA 1.'

[90] According to witness Eshwar Narayan several items of jewellery, mobile phones and cash were removed from his house during the robbery on 05 July 2008. Nitesh Narayan on 15 July 2008 at the police station had identified one of his phones which went missing during the robbery and had taken charge the same. Detective Sgt 2509 Joape Ravunibola testified that he recovered on 9 July 2008 a gold cover LG mobile phone from a drawer at the Mr. Nacagi's house. None of these witnesses has been challenged on the veracity of their evidence relating to the mobile phones and its recovery when they testified in court.

[91] The learned trial judge in the summing up dated 20 April 2010 at the outset had stated:

"On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on facts of this case, if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact."(emphasis added)

[92] The learned trial judge continuing to further address the assessors with regard to submissions of Counsel and the respective Appellants had stated the following:

"Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable. You will not be asked to give reasons for your opinions."

[93] On an examination of the entire summing up I observe that the learned trial judge had directed the assessors on all the items of evidence available against each appellant. In this process the learned trial judge had categorised the available evidence under headings namely, evidence on identity and items of circumstantial evidence. Thereafter, the learned trial judge had set out the positions taken up by the appellants in relation to each of these items of evidence and had invited the assessors to form their own opinion.

[94] I am of the view that the trial judge had not erred in law and fact in directing the assessors on the available evidence relating to the lost mobile phone despite it was not produced at the trial.

[95] I further observe that the appellants at the trial had not objected to the evidence relating to the mobile phone but had contended that the evidence is weak as no mobile phone was produced in court. In paragraph [25] of the summing up the learned trial judge had clearly set out the Appellant's position relating to the mobile phone.

[96] In view of the above findings I hold that the learned trial judge had not erred when he directed the assessors on the evidence relating to the stolen mobile phone as an item of circumstantial evidence relating to Mr. Nacagi.

[97] I hold that there is no merit in the above ground of appeal.

[98] I shall also now consider whether the learned trial judge erred by expressing an opinion favourable to the prosecution in analyzing the evidence of identifying witnesses. It was further contended that the assessors were thereby deprived from taking an independent view on the sufficiency of the evidence on visual identification.

[99] In paragraphs [40] to [47] of the summing up the learned trial judge had analysed the evidence of identifying witnesses. The learned trial judge having narrated the evidence of each witness had raised the issue whether there is any special weaknesses in the evidence of identification of each witness. The learned trial judge having raised this issue had expressed his opinion in the negative. The learned trial judge prior to raising this issue and expressing his view had directed the assessors on the relevant legal principles on evidence of identification and appellants do not complain relating to the directions on legal principles on identification.

[100] On an examination of these paragraphs in the summing up I see no error on the directions on law. The learned trial judge has expressed his opinion only on a question of fact.

[101] It is accepted that the judge may comment on the evidence in a way which indicates his own views provided the trial judge emphasizes that the assessors are entitled to ignore his opinions, Robust comments to the detriment of the defence case are permitted. In O'Donnell (1917) 12 Cr App R 219, the judge described the accused's story as a 'remarkable one'. Such comment was not considered illegal provided that the judge is not so critical as effectively to withdraw the issue of guilt or innocence from the jury.

[102] Thus having adequately summed up the evidence, it should now be considered whether the learned trial judge erred in law when he indicated his view regarding the evidence even having so expressed his view, he directed the assessors that they were free to draw their own inferences on the evidence.

[103] As evidenced by the extracts of the summing up of the learned trial judge in paragraph [42] and [43] of this judgment, he had adequately cautioned and directed the assessors on the evidence of identification available in this case.

[104] In paragraph [1] in the summing up the learned trial judge had warned and cautioned the assessors that even if he expressed an opinion or view regarding any fact or evidence that they are not bound to accept the same and are free to disregard the same. In paragraph [52] the learned trial judge having emphasized the need to follow his directions on law, had further directed the assessors to decide on questions of fact using their life experience and common sense.

[105] In my view, it is not proper and lawful to totally restrict the learned trial judge from making any comment or giving an opinion on facts while he performs his judicial function.

[106] Therefore, when the trial judge had articulated a particular position regarding a fact cannot be held to state that it has occasioned in a miscarriage of justice or caused prejudice to the Appellants when there had been sufficient caution and a clear warning regarding the law.

[107] Hence, I find that the learned trial judge has not erred in expressing his opinion in analysing the available evidence.

[108] In view of the above findings in relation to grounds of appeal and the totality of the evidence available against all the appellants, I am of the view that this is an appropriate case to consider making an order for a new trial in pursuant to section 23(2)(a) of the Court of Appeal Act.

[109] It is settled law, the court should consider several factors prior to exercising its discretion in favour of ordering a new trial.

[110] In the case of Au Pui-Kuen v. Attorney General of Hong Kong ([1980] AC 351 at 356) his Lordship Lord Diplock in delivering their opinion of the Privy Council has stated:

"The powers to order a new trial must always be exercised judicially. Any criminal trial is to some degree are ordeal for the accused; it goes without saying that no (court) exercising the discretion judicially would require a person who had undergone this ordeal once to endure it for the second time unless the interests of justice required it."

And later at p. 357:

"The interests of justice are not confined to the interests of the prosecutor and the accused in the particular case. They include the interests of the public ... that these persons who are guilty of serious crime should be brought to justice and should not escape it merely because of a technical blunder by the judge in the conduct of the trial or his summing up to the jury."

[111] The instant case is very serious in nature which consist a series of offences. Public interest warrants people who are accused of serious crimes be brought before justice, without avoiding it purely on a technical error by a judge. Further, the length of time between the date of offence and the new trial is also a factor that should be taken into account in the context of possible prejudice to an accused.

[112] In view of the findings in relation to grounds of appeal the evidence available against all appellants and the seriousness of the series of crimes, the public interest to prosecute offenders in this case outweigh the interests of individual appellants to enjoy an expeditious trial.

[113] Therefore I would quash the convictions and sentences of all appellants and order a new trial.

The Orders of the Court are:

1. Appeals allowed.

2. Convictions and sentences are quashed

3. Verdicts of acquittal are entered in respect of all four Appellants on the condition that the Appellants surrender to the Chief Registrar their passports (if any) and all other travel documents (if any) for the period of 42 days from the date of this judgment or until the determination of any appeal lodged by the Respondent within that period of 42 days.

Hon. Justice Calanchini
PRESIDENT, COURT OF APPEAL

Hon. Justice Waidyaratne
JUSTICE OF APPEAL