Vakacereivalu v State [2015] FJCA 25; AAU116.2011 (27 February 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU 116 OF 2011
(High Court HAC 115 of 2009)

BETWEEN:

OSEA VAKACEREIVALU
4th Appellant

ALIPATE VAKADEWAVOSA
1st Appellant

ILIASERI SAQASAQA
3rd Appellant

ISIMELI WAKANIYASI
2nd Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Waidyaratne JA
Goundar JA

Counsel : 1st, 2nd and 3rd Appellants in person
Mr. S. Waqainabete for the 4th Appellant
Mr. L. Fotofili for the State

Date of Hearing : 12 and 16 February 2015
Date of Judgment : 27 February 2015

JUDGMENT

Calanchini P

[1] I have read in draft the judgment of Waidyaratne JA and agree that the appeal by all four Appellants should be allowed and their convictions quashed. I would also agree that a re-trial should be ordered for the reasons stated in his judgment.

I venture to add an observation as to the manner in which the Appellants were charged by information in respect of count 1. The statement of the offence is said to be robbery contrary to section 293(1) (a) of the Penal Code Cap 17. Since the particulars of the offence clearly indicate that the Appellants were before the Court for an offence under section 293 (1) (a) it would be more appropriate to identify the offence as "robbery in company" rather than simple robbery. The common law offence of robbery is dealt with in section 293 (2) for which a lesser penalty is specified. To add to the confusion the learned High Court Judge has referred to the charge as "robbery with violence" which is an offence under section 293(1) (b) of the Code.

Waidyaratne JA

[2] After trial in the High Court of Suva by a judge sitting with three assessors, the four Appellants were convicted on 26 September 2011 on a count of robbery contrary to section 293 (1)(a) of the Penal Code Cap 17 and a count of unlawful use of motor vehicle contrary to section 292 of the Penal Code Cap 17.

[3] On 11 November 2011, the four Appellants were sentenced as follows:

The 1st and 2nd Appellants to a term of eleven (11) years imprisonment with a non parole term of nine (9) years on the first count and to three (3) months imprisonment on the second count to be served serve concurrently. The 3rd and 4th Appellants were sentenced to a term of eight (8) years imprisonment with a non parole term of six (6) years on the first count and three (3) months imprisonment on the second count to serve concurrently.

[4] The 1st, 2nd and the 4th Appellants were granted leave to appeal by the single judge in his ruling dated 2 June 2014. The following are the grounds of appeal.

(1) One ground of appeal of the 1st, 2nd and the 4th Appellants is that the learned trial judge failed to direct the assessors adequately on their confessions.

(2) The other ground of appeal by the 1st, 2nd and the 4th Appellants is that the learned trial judge failed to direct the assessors adequately on accomplice's evidence.

(3) The 3rd Appellant had been granted leave on the ground that the learned trial judge in his summing up at paragraph 40 had referred to the 3rd Appellant as the 'General' of the criminal underworld" and such remark caused prejudice to him.

The 2nd appellant in his submissions filed on 16 January 2015 has raised two additional grounds of appeal. They are:

(1) That the learned trial judge at the voir dire inquiry has failed to direct himself on the burden of proof of the voluntariness in admitting the caution interview statement.

(2) That the trial judge erred in directing the assessors on the burden of presenting medical evidence relating to the 2nd and the 4th appellants.

[5] The State in their written submissions dated 11 February 2015 has conceded all grounds of appeal granted by the single Judge in his ruling dated 2 June 2014 and the 2nd additional ground raised by the 2nd appellant. Further, at the hearing on 12 February 2015 and on 16 February 2015, the State confirmed its position as per their written submissions referred to above.

[6] At the hearing of the appeals, Appellants further submitted that no new trial should be ordered in the event that the appeals are allowed and convictions are quashed.

[7] The State argued otherwise. It was submitted that the evidence presented at the trial is sufficient to find all appellants guilty of the two counts. Therefore in the interests of justice a new trial should be ordered if the appeals are upheld due to the misdirections of the trial judge.

[8] It is settled law that the admissibility of a confession has to be decided by a trial judge having satisfied himself on its voluntariness. Thereafter, it is for the assessors to consider whether such confessions were in fact made by the accused and whether they are true.

[9] At the voir dire inquiry, prosecution has presented evidence to satisfy that the caution statements of 1st, 2nd and the 4th appellants were made voluntarily. In the ruling dated 12 September 2011 at paragraph 4, the correct legal principles relating to the admissibility of confessions have been considered by the trial judge. Therefore, we hold that there is no merit in the 1st additional ground of appeal.

[10] On examination of the summing up, it is evident that the trial judge had failed to address the assessors properly and adequately on the weight that should be attached to caution statements.

[11] In view of the above non-direction it is improper for the assessors to act on the caution statements in the instant case. Therefore, in this instance the direction to use caution statements of the appellants to corroborate the accomplice's evidence is erroneous.

[12] The trial judge has mis-directed himself when he invited the assessors to consider whether the 3rd appellant is a "General of the criminal world". There is no evidence on record to link the 3rd appellant to the criminal world. We hold that the learned trial judge erred in making the above remark which is prejudicial to the 3rd Appellant.

[13] In view of the above findings we hold there is merit in the first three grounds and the second additional ground of appeal and had resulted in a miscarriage of justice. Therefore we hold that the conviction and sentence of all four appellants should be quashed. Having concluded that the grounds of appeal have been established and taking into account the serious shortcomings in the summing up, we are of the view that this is not an appropriate case to apply the proviso to section 23(1) of the Court of Appeal Act.

[14] The next question is to consider whether in the interest of justice a new trial should be ordered pursuant to Section 23(2)(a) of the Court of Appeal Act.

[15] The power of the Court of Appeal to order a fresh trial is contained in the section referred to above and may be exercised '... if the interests of justice so require ...'

[16] 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 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 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 those 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."

[17] In view of the above finding the exercise of discretion to order a retrial requires the consideration of several factors, some of which may favour a retrial and some against it.

[18] Mainly it included the interests of the public that people who are accused of serious crimes be brought to justice avoiding it purely on a technical error by a judge. Another factor to be considered is the strength of the evidence available against an accused. The length of time that has elapsed from the time of the offence and the new trial if one is ordered is also a factor to be taken into consideration in certain cases. Yet another, factor which ought to be considered is the prejudice that would be caused to an accused due to the non-availability of the evidence which was available at the first trial.

[19] The Supreme Court in Katonivualiku v. State [2003] FJSC 17; CAV0001.1999 (17 April 2003) has adopted the above findings.

[20] The 1st, 2nd and 4th Appellants have confessed in their caution interview statements. Witness Sailasa Qalivere an accomplice who had been granted immunity by the Director of Public Prosecutions in his evidence has narrated the involvement of all four appellants in the commission of the two offences. This witness had driven his uncle's taxi on 31 August 2009 and late in the day the 3rd Appellant had directed the witnesses to drive from Wainibuku to Navosai and had picked up four persons including 1st, 2nd and the 4th Appellant and another unknown person. The 3rd Appellant had been seated in the front passenger seat and at Navosai all others had got off the vehicle save the 3rd Appellant. The Appellants who got off the vehicle had been armed with iron rods. In the early hours of 1 September 2009 the 1st, 4th and the unknown person had come in a station wagon driven by the 2nd Appellant and got into his vehicle and they had proceeded to Newtown. At Newtown at the house of the 2nd Appellant they had shared the money alleged to have been stolen and he had been given $650 as his share. Thereafter, the witness had driven the 1st, 4th and the 3rd Appellants to the house of the 3rd Appellant.

[21] The 1st, 2nd and the 4th Appellants have denied making voluntary caution statements to the police and had taken up an alibi in their individual defences. The 3rd Appellant while admitting that he knew the witness Sailasa Qalivere had further admitted that he was with Sailasa Qalivere on 31 August 2009 till late in the night at the request of Sailasa in order to provide protection to him but had denied that he was involved in the commission of the alleged offences.

[22] The Appellants in their written and oral submissions submitted that there is no evidence against them and opposed the order of a new trial.

[23] I am not inclined to agree with the above submissions of the Appellants as the prosecution has placed sufficient evidence before court for consideration.

[24] Further, being mindful of the Appellants constitutional right to have their case determined within a reasonable time, the lapse of five years from the date of offence in this case cannot be considered to be unfair and unreasonable when one considers the seriousness of the offences and the strength of the evidence.

[25] It is also pertinent to know that the Court of Appeal in Azamatula v. The State FJCA 84; AAU0060.2006S (14 November 2008) which followed the principles in Au Pui Kuen (supra) allowed an appeal against an order of the High Court where a retrial was ordered after 10 years of the date of offence. Further, the Court of Appeal in Azamatula (supra) had taken into account the weaknesses in the prosecution case and the long delay in allowing the appeal.

I hold that the facts in this case can be clearly distinguished from the facts in Azamatula (supra).

[26] Therefore, I am of the view that the interests of justice are best served by ordering a fresh trial.

Goundar JA

[27] I agree the appeals against convictions should be allowed in light of the concession made by the State and that a retrial should be ordered for the reasons given by Waidyaratne JA.

Orders

(1) Appeals are allowed. Convictions and sentences quashed.

(2) Fresh trial ordered.

(3) The appellants including Iliaseri Saqasaqa are to remain in custody on remand until further orders of the High Court. The case is listed for mention before a different High Court Judge on 13 March 2015 at 9.30 a.m. Production orders issued.

________________________________
Hon. Mr Justice Calanchini
PRESIDENT, COURT OF APPEAL

________________________________
Hon. Mr Justice Waidyaratne
JUSTICE OF APPEAL

________________________________
Hon. Mr Justice Goundar
JUSTICE OF APPEAL