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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
CRIMINAL APPEAL NO: AAU0053 of 2011
High Court Case No. HAC 0086 of 2009
BETWEEN:
1. NOA MAYA
2. MESAKE LIGAVAI
Appellants
AND:
THE STATE
Respondent
Coram : Calanchini P
Waidyaratne JA
Jayasuriya JA
Counsel : Mr. J. Savou for the Appellants
Mr. Y. Prasad for the Respondent
Date of Hearing : 10 February 2015
Date of Judgment : 27 February 2015
JUDGMENT
Calanchini P
[1] I have read in draft the judgment of Jayasuriya JA and agree that the appeals against convictions and sentence should be dismissed.
Waidyaratne JA
[2] I had the opportunity to read the draft judgment of Jayasuria JA and concur with his views.
Jayasuriya JA
[3] Two appellants along with a co-accused, were convicted and sentenced for armed robbery, punishable under section 293(1) (a) of
the Penal Code Cap 17, in the High Court at Lautoka. The 1st appellant was convicted after trial while the 2nd appellant and the other accused were
convicted following their guilty pleas. The only evidence available against the first appellant is the confession he made in the
caution statement.
[4] The two appellants pursuant to section 21 of the Court of Appeal Act, (Cap.12) sought leave to appeal. The first appellant sought leave to appeal against both the conviction and sentence while the second appellant's initial application confined to the sentence.
[5] On 12 July 2013, a single judge refused leave to appeal applications of both appellants.
[6] Both appellants are now seeking leave from this court, which is duly constituted for the hearing and determining of the appeal, pursuant to section 35(3) of the Court of Appeal Act, (Cap.12).
[7] On 12th December 2014, both appellants were granted permission to file amended grounds of appeal within seven days ie: by the 19th December 2014. However the two appellants having failed to comply with this ruling have filed an amended petition of appeal on 30th January 2015. At this hearing, both appellants sought leave to pursue their appeals based on this late filing – the amended petition of appeal. Respondent having already filed submissions covering all grounds of appeal raised in this late filing, did not oppose appellant's application for leave to pursue matters raised in the amended petition of appeal.
[8] This Court granted leave for the two appellants to pursue their applications based on the grounds urged in the amended petition of appeal filed on 30th January 2015.
[9] In the outset, the counsel for the appellants submitted that he will not be pursuing ground three of the appeal against the sentence. Accordingly, the present hearing is on three grounds of appeal against the conviction, one of which is common to both appellants and the remaining two only for the first appellant. There are two grounds of appeal against sentence filed by both appellants.
FIRST GROUND OF APPEAL AGAINST THE CONVICTION – RELATING TO BOTH APPELLANTS
FACTS
[10] Initially, four accused namely Noa Maya (the 1st appellant), Asaeli Vukitoga, Mesake Ligavai (the 2nd appellant) and Manasa Volau were charged in the Magistrate's Court for committing Robbery, contrary to section 293(1)(a) of the Penal Code. The offence is alleged to have committed on 11th September 2007.
[11] On 2nd November 2007, all four accused moved the Magistrate, to try them in the Magistrate's Court.
[12] Proceedings against one of the accused namely Asaeli Vukitoga had been concluded in the Magistrates Court and the case had been adjourned for 14 January 2008 for sentencing.
[13] On 11 February 2008 the Magistrate had transferred the case against the remaining three accused to the High Court, on an application by the prosecution.
SUBMISSION
[14] On behalf of the appellants it was submitted that the magistrate erred in ordering the transfer of proceedings to the High Court and was ulta vires. This error was further compounded by the decision of the High Court judge to continue with the proceedings which ended up with the conviction and sentence of all three accused, including the two appellants.
[15] It was further submitted, that the procedural error on the parts of both the magistrate and the High Court judge deems the entire proceedings a nullity.
[16] Counsel for appellants relies on the fact that the offence of Robbery with violence [section 293(1) of the Penal Code] is listed in the schedule of the Electable Offences Decree, 1988 and the decision in Singh v State [2004] FJCA 27; AAU0009.2004(16 July 2004) in support of his submission.
[17] This is a question of law. Hence no leave is required to pursue this ground of appeal before this court.
DETERMINATION
[18] On the examination of the Electable Offences Decree, 1988, it is clear that section 3 restricts the right of an accused person to elect a High Court trial to cases where he is charged in a Magistrate's Court with an electable offence. Section 4 of this Decree confers a right on the Director of Public Prosecutions or any counsel instructed by him to request a Magistrate to commit a case to the High Court in situations where the accused is charged with a non-electable offence. However, there is no provision in this Decree conferring on an accused person the right to insist on a Magistrate's Court trial.
[19] According to Section 4 (1) of the Criminal Procedure Code any offence under the Penal Code can be tried by the Supreme Court (High Court) and in addition by the Magistrate's Court which is specifically identified under Fifth Column of the First Schedule. However no such trial can be held in the Magistrate's Court unless with the consent of the accused, if the fifth column requires so.
[20] The fifth column of the first schedule of the Criminal Procedure Code relating to offence under section 293(1) of the Penal Code – Robbery with violence reads as follows:
"with the consent of the accused, resident magistrate"
[21] Therefore, the fact, the appellants were initially charged in the Magistrate's Court with an offence described as an 'electable offence' under the Electable Offences Decree, 1988 did not confer them with a right to insist on a trial by the magistrate. Further, the legislative scheme provided under the Criminal Procedure Code, also does not confer such right on the appellants.
[22] Section 220 of the Criminal Procedure Code, as amended by Act no 13 of 2003 reads as follows:
"If before or during the course of a trial before a magistrate's court it appears to the magistrate that the case is one which ought to be tried by the (High) Court or if before the calling of evidence at a trial an application In that behalf is made by a public prosecutor that it shall be so tried, the magistrate shall not proceed with the trial but shall transfer the case to the High Court under Part VII."
[23] In this case, PC Choy who appeared for the prosecution on 11 February 2008 before the Resident Magistrate at Lautoka moved this matter be transferred to the High Court and accordingly, the matter was transferred to the High Court. It was adjourned to be mentioned in the High Court on 25 February 2008. Proceedings in the High Court had commenced on 23 October 2009 in consequent to the written transfer order of the magistrate dated 08 September 2009.
[24] The decision in Sing v State [2004] FJCA 27; AAU0009.2004(16 July 2004) deals with the proper construction and application of the Criminal Procedure (Amendment) Act 2003 and in particular, focuses on the effect of its transitional provision - section 15. Neither the ratio decidandi nor obiter dicta of this judgment support the arguments advanced on behalf of the appellants in this case.
[25] In Murti v State, [2009] FJSC 5; CAV0016.2008S (12 February 2009) the Supreme Court in deciding the scope of section 3 of the Electable Offences Decree 1988 held:
"This section entitles a person to elect to be tried in the High Court not in the Magistrate's Court"
[26] Both the learned magistrate when he transferred this case to the High Court and the learned High Court judge who thereafter proceeded with the trial against the appellants have neither acted ultra vires nor erred in law.
[27] I hold, there is no merit in the first ground of appeal against the conviction.
REMAINING GROUNDS OF APPEAL
[28] Taking into account the scope and the nature of the rest of the grounds of appeal raised by the appellants, this court decided to make its determination after hearing submissions from both parties.
SECOND GROUND OF APPEAL AGAINST THE CONVICTION – RELATING TO THE FIRST APPELLANT
[29] Under this ground of appeal, the conviction of the 1st appellant is challenged on the basis the trial judge erred in admitting the caution statement of the first appellant despite the appellant's detention being in breach of a Constitutional Right.
[30] It was submitted that the trial judge should have refused to admit the caution statement, as the evidence led at the voir dire inquiry revealed, that the first appellant was in police custody for more than forty eight hours.
[31] On behalf of the 1st appellant it was further submitted that the caution interview of this appellant had been conducted at least fifty one hours after he was brought to the station. Respondent does not contest this fact.
[32] It is the contention of the appellant, that Article 27(3)(b) of the 1998 Constitution was breached in this situation and such breach by itself makes it imperative for the trial judge to declare the caution statement inadmissible.
[33] Article 27(3) (b) of the Constitution stated:
"Every person who is arrested for a suspected offence has the right:
(a) ..........
(b) to be brought before a court no later than 48 hours after the time of arrest or, if that is not reasonably possible, as soon as possible thereafter;..."
[34] On behalf of the Respondent, it was submitted the mere failure to bring a suspect before a court within 48 hours of his arrest does not violate the Right enshrined in Article 27(3)(b) as long as he has been brought before a court within a reasonable time. It was further submitted, that a failure to bring a suspect before a court within 48 hours by itself would not warrant exclusion of a caution statement unless such statement was obtained under oppression. The Respondent contests the appellant's claim that 'the matter was first called in the Magistrates Court on 2nd November 2007, which was more than one month after the First Appellant was charged by the Police'.
[35] Copy of the proceedings in Magistrate's Court Lautoka in criminal case No 649 of 2007 shows that the two appellants together with the other two co-accused appeared before the magistrate on the 24th September 2007 and subsequently on 02 November 2007, an amalgamated charge for file 675/07 and 649/07 had been filed in case no. 719 of 2007.
[36] I hold the appellant's submission that, they were brought before court one month after they were charged by police is, without merit.
[37] At the voir dire inquiry held on 10 May 2013 seven witnesses testified. The first appellant who was appearing in person had cross-examined all of them.
[38] The arresting officer, the officer who took charge the appellant at the police station and the officer who interviewed the appellant were among these seven witnesses who testified at the voir dire inquiry. Neither the evidence of these witnesses nor of the other four witnesses reveal that the appellant was assaulted, tortured or kept in oppressive conditions. All witnesses who testified had denied suggestions of assault.
[39] Not only the appellant had refrained from giving evidence at the voir dire inquiry but also had failed to produce any other evidence either medical or any other nature to substantiate his claim and contradict the denials of police officers regarding alleged assaults.
[40] No issue relating to the duration of or the conditions of detention was raised at the voir dire inquiry.
[41] There was no evidence either oral or documentary showing that the appellant's caution statement was recorded after being held in custody under oppressive conditions or circumstances.
[42] In Fraser v The State [2012] FJCA 92, AAU 0024.2010 (30 November 2012), Calanchini, AP in his separate opinion (while concurring with the majority decision on the appeal) observed:
"The appellant did not call any evidence. No matter how astutely leading questions may be asked by counsel cross-examining prosecution witnesses, the material in the leading questions does not become evidence unless adopted or accepted by the witness"
[43] The learned trial judge in this case having laid down the correct law relating to the admissibility of caution statements and having analysed the evidence presented at the voir dire inquiry has said:
"I find that the evidence of the Police Officers was consistent and compelling. I accept their evidence that there was no assault of the accused either on his arrest or later at the police station. I accept that the accused was treated at all times in a fair and professional manner"
[44] In Fraser (supra) the appeal court held that the trial judge erred when he allowed the caution statements to be admitted as the prosecution had failed to prove that the statements were obtained voluntarily. In this judgment Basnayake JA further observed that:
"The burden rests on the prosecution to prove beyond reasonable doubt that the statement was not obtained by oppression of the person making it".
[45] In Fraser (supra) there was evidence given by the accused himself at the voir dire inquiry claiming several incidents of assaults, in addition to the fact that the accused was detained for more than 48 hours. The medical report tendered in evidence proved several injuries that were compatible with his claim of assault.
[46] No such evidence was presented in this case, at the voir dire inquiry.
[47] The Supreme Court in Murti (supra), in addressing concerns raised in regard to the admissibility of a caution statement recorded after being held for 60 hours observed:
"The argument based on the petitioner's contention that he was in custody for 60 hours prior to giving his statement to the police cannot succeed. The voluntariness of his confession was dealt with in a voir dire at the trial and Goundar J found against the petitioner in this regard. His Lordship's decision in this respect was upheld by Hickie JA on appeal and Hickie JA has not been shown to be wrong. Thus, even if the petitioner was in custody for the period he asserts (and this has not been proved), this did not affect the fairness of the trial"
[48] Taking into account the totality of the evidence presented at the voir dire inquiry, the trial judge's analysis of such evidence and the legal tests he has adopted, I am of the view that the trial judge had not erred in law or on facts in deciding the admissibility of caution statement made by the 1st appellant.
[49] Therefore I hold that there is no merit in the second ground of appeal against the conviction.
THIRD GROUND OF APPEAL AGAINST THE CONVICTION – RELATING TO THE FIRST APPELLANT
[50] This ground of appeal is advanced on behalf of the 1st appellant on the basis that certain parts of the summing up of the Trial Judge caused prejudice to him.
[51] This objection is raised in relation to the following passages of the summing up:
"[5] The Courtroom is no place for sympathy or prejudice.
If you have any prejudice against young men acting violently, don't let that cloud your view of the evidence"
"[10] The Police gave evidence of the arrest of the accused and the making of his interview under caution. It was read out to you and you remember it contained a frank confession to the offence of robbery"
"[13] The accused told you that all the robbers have been convicted and he didn't do it. Firstly it is not true that all the robbers have been convicted and secondly what happens to others is irrelevant – you are to consider the case against this accused alone on the evidence heard in Court today, and you must not speculate about the fate of the others"
[52] On behalf of the respondent it was submitted that none of these passages could have caused prejudice to the appellant. It was further submitted that the trial judge has delivered a fair and balanced summing up.
[53] In paragraph [5] the learned trial judge has emphasized nothing but the need for the assessors to act without any fear or prejudice.
[54] I am unable to find any reason or a justification for the appellant's objection to the paragraph [5] of the summing up.
[55] Paragraph [10] is one of several other paragraphs that deal with the manner in which the assessors should consider the caution statement of the appellant.
[56] On behalf of the appellant it was submitted that the use of term 'you remember' in paragraph [10] reflects an unfair emphasis on the caution statement.
[57] I am of the view that paragraph [10] cannot be taken in isolation, but need to be reviewed along with paragraphs [12], [14], [15] and [16] to consider the overall impact on the defence case.
[58] The appellant while testifying at the trial took up the position that he was assaulted by the police officers and he was forced to sign the caution statement. He further alleged that the statement was fabricated by them. However all police officers including the arresting officer and the officer who recorded the caution interview who testified at the trial denied such assaults.
[59] In paragraphs [10], [12], [14], [15] and [16] of the summing up, the learned trial judge had set out the correct legal tests that should be applied in deciding the weight that the assessors should attach to the caution statement which was declared admissible after the voir dire inquiry. The learned trial judge had also correctly set out the different factual positions the appellant has raised in relation to the caution statement.
[60] I am further of the view that the learned trial judge has correctly and sufficiently directed the assessors on the caution statement of the appellant.
[61] On behalf of the appellant it was further submitted that the trial judge's comment 'it is not true that all robbers have been convicted' in paragraph [13] of the summing up is factually incorrect and has caused prejudice to the appellant.
[62] Trial court proceedings as reflected in the case record fail to reflect the exact reason for this comment. However, proceedings in the Magistrate's Court and the High Court reflect that the other three co-accused in this case had been found guilty on their own pleas, prior to the commencement of the 1st appellant's trial.
[63] The impugned observation of the trial judge in paragraph [13] appears to be a comment on an assertion of the appellant. However neither his evidence nor his closing address reflects such assertion. Taking into account the fact that the case of the first appellant was still in progress at the time the trial judge made this comment, any objection on basis that it is factually incorrect is not tenable. Furthermore, the rest of this paragraph emphasizes the need to consider the case against the first appellant on its own merits and should not be influenced by the fate of the other co-accused.
[64] Having considered all these factors I hold that the appellant's challenge to paragraph [13] of the summing up also is also not tenable.
[65] In view of my reasoning above, I hold that there is no merit in the third ground of appeal against the conviction and therefore fails.
APPEAL AGAINST THE SENTENCE (RELATING TO BOTH APPELLANTS)
[66] The first appellant was sentenced to 11 years and 9 months imprisonment. A non-parole period of nine years was imposed.
[67] The second appellant who pleaded guilty to the indictment was imposed with 9 years imprisonment with a non-parole period of 7 years.
[68] The third accused was sentenced for 8 years imprisonment. His term of imprisonment ordered to run concurrently with the twelve years term of imprisonment he was already serving at the time of sentencing for this offence. This accused has not appealed
FIRST GROUND OF APPEAL AGAINST THE SENTENCE (RELATING TO BOTH APPELLANTS)
[69] Both appellants pursue their appeals against the sentence on the basis 'the trial judge erred in law by using the tariff for Robbery with violence to guide his starting point of sentencing when the offence convicted of was Robbery simpliciter'.
[70] The two appellants along with the other accused were indicted for armed Robbery: contrary to section 293(1) (a) of the Penal Code.
[71] Section 293(1) (a) and 293(1) (b) of the Penal Code respectively reads as follows:
"Any person who –
(a) Being armed with any offensive weapon or instrument, or being together with one other person or more, robs, or assaults with intent to rob, any person; or
(b) Robs any person and, at the time of or immediately before or immediately after such robbery, uses or threatens to use any personal violence to any person, is guilty of a felony and is liable to imprisonment for life........."
[72] Life imprisonment is prescribed as the maximum sentence for aggravated forms of robbery falling within the description of both these provisions – 293(1) (a) and 293(1) (b) - whereas fourteen years of imprisonment is prescribed as the maximum term of imprisonment under section 293(2) for Robbery simpliciter.
[73] Witness Prakash Garana in his evidence, said that the three or four masked intruders who came into the house around 10.15 pm were armed with pinch bars. They pushed and dragged this witness to the room and asked for the safe. Later on, they had taken the chain which he was wearing, the ring and several other items of jewelry, cash, a DVD and a mobile phone. Further, this witness said that the robbers pulled earrings from his sister injuring her earlobe and she was later taken to the hospital.
[74] The learned trial judge in this case had decided to take 9 years as the starting point, while recognizing that robbery with violence should attract 10 to 15 years imprisonment.
[75] Taking into account the fact that the two appellants were indicted under 293(1)(a) of the Penal code for which the life imprisonment is prescribed as the maximum sentence, the learned trial judge had not erred in law by taking 9 years as the starting point in this case.
[76] Appellants' contention that the trial judge erred in law when he failed to use the tariff for robbery simpliciter in calculating the starting point in this case is therefore not tenable.
[77] I hold there is no merit in the first ground of appeal against the sentence.
SECOND GROUND OF APPEAL AGAINST THE SENTENCE (RELATING TO BOTH APPELLANTS)
[78] Two appellants submit that the learned trial judge erred in law by taking into account certain irrelevant factors as aggravating factors in determining the sentence
[79] The learned trial judge has considered (i) group invasion, (ii) brandishing (but not use of) pinch bars, (iii) an act of violence on the ears of a female in the house and (iv) invasion at night as aggravating factors in this case. He had added three years to the starting point bringing the interim term (prior to the deductions for mitigating factors) to twelve years.
[80] It is the appellants contention that factors (i) and (ii) above are already pleaded as particulars of the offence which are necessary ingredients to prove a charge of Robbery contrary to section 293(1)(a) and therefore there is double counting in determining the final sentence.
[81] The Respondent submitted that the learned trial judge had not erred in law when he considered night invasion and attack on family at night in the comfort of their house as aggravating factors.
[82] I accept the factors listed as (i) and (ii) above are factors that are already subsumed in the ingredients of the offence and therefore, recognizing them as aggravating factors lead to 'double counting' in this situation. However, this raises the issue, whether this error warrants an intervention by this court.
[83] The learned trial judge having reached at the interim term of 12 years had finally imposed 11 years and 3 months imprisonment to the 1st appellant and nine years imprisonment to the 2nd appellant who pleaded guilty.
[84] Sentencing and Penalties Decree 2009 sets out broad guidelines on sentencing as well as specific requirements that need to be adhered to, in imposing sentences of imprisonment.
[85] Section 4 (1) of the guidelines identifies inter alia following purposes for which sentencing may be imposed by a court:
[86] Section 23(3) of the Court of Appeal Act (Cap.12) reads as follows:
"On an appeal against sentence, the Court of Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted by law by the verdict (whether more or less severe) in substitution therefore as they think ought to have been passed, or may dismiss the appeal or make such other order as they think just"
[87] In view of the fact the trial judge took into account a lower figure in determining the starting point for Robbery contrary to section 293(1)(a), and thereby interim figure prior to the deductions for mitigating factors had been placed more towards the lower end of the accepted tariff, no prejudice has been occurred to the appellants due to the 'double counting' in this case.
[88] Therefore, I hold that the second ground of appeal against the sentence also should fail.
[89] In view of the above findings, I would dismiss the appeal against the conviction of both appellants and the appeal against the sentence relating to both appellants.
The Orders of the Court are:
Hon. Mr. Justice William Calanchini
President, Court of Appeal
Hon. Mr. Justice Kapila Waidyaratne
Justice of Appeal
Hon. Mr. Justice Jayantha Jayasuriya
Justice of Appeal
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