Laojindamanee v State [2015] FJCA 41; AAU47.2013 (13 March 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL: AAU 47 OF 2013
(High Court HAC 323 of 2012)

BETWEEN :

PHANET LAOJINDAMANEE
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Counsel : Mr S Sharma for the Appellant
Mr V Perera for the Respondent

Date of Hearing : 20 January 2015
Date of Ruling : 13 March 2015

RULING

[1] The Appellant along with three others was jointly tried in the High Court at Suva for offences under what may be termed the human trafficking provisions of the Crimes Decree 2009 (the Decree).

[2] The Appellant was before the High Court with one of the co-accused on two charges of aggravated trafficking in persons under section 113(1) (a) (i) of the Decree.

[3] Following a trial before a judge sitting with three assessors the Appellant and his co-accused were found not guilty of the aggravated trafficking charges. However they were both convicted on two counts of the lesser offence of trafficking in persons contrary to section 112(5) of the Decree.

[4] The maximum penalty for this lesser offence is 12 years imprisonment. The Appellant was sentenced on 25 January 2013 to a term of 10 years imprisonment on each count to be served concurrently with a non-parole period of 9 years. His co-accused received the same sentence. A notice of appeal against conviction and sentence was filed on 22 February 2013. For reasons that are not now relevant that initial timely notice of appeal was deemed to have been abandoned under the Court of Appeal Rules (the Rules). It appears not to be disputed that the appeal was revived within time by the subsequent filing of a second notice of appeal. The parties have not addressed the issue and to the extent that an enlargement of time may be required, it is granted.

[5] In the event that any of the Appellant's grounds of appeal against conviction raise questions of mixed law and fact or questions of fact alone, the Appellant must obtain the leave of the Court pursuant to section 21 (1) (b) of the Act. An appeal against sentence requires leave under section 21(1) (c) of the Act. The power of the Court to grant leave to appeal may be exercised by a justice of appeal under section 35 (1) of the Act.

[6] The Appellant has filed amended grounds of appeal. There are a total of 8 grounds of appeal, 5 of which relate to conviction and the remaining 3 allege errors by the learned trial Judge in the exercise of his sentencing discretion.

[7] The amended grounds of appeal are:

"(1) THE Learned Trial Judge erred in law when he misdirected the assessors about the elements of the offence of Trafficking in Persons thereby causing a substantial miscarriage of justice.

(2) THE Learned Trial Judge erred in law and in fact when he convicted the Appellant when there was insufficient evidence to satisfy the elements of the offence of Trafficking in Persons.

(3) THE Learned Trial Judge erred in law and in fact when he failed to correctly direct the assessors on how to approach the evidence contained in the caution interview.

(4) THE Learned Trial Judge erred in law and in fact when he did not correctly direct the assessors on how to approach circumstantial evidence.

(5) THE Learned Trial Judge erred in law and in fact when he did not properly direct the assessors about joint enterprise and how the Appellant was part of it.

(6) THE Learned Trial Judge erred in sentencing the Appellant to 10 years imprisonment with a non-parole period of 9 years when he allowed extraneous matters to guide him in adding 5 years to a already high starting point in the absence of:-

1. victim impact assessment;
2. any prostitution charges been laid on the Appellant.
   

(7) THE Learned Trial Judge erred when he failed to take into account the following relevant consideration of the Appellant as part of mitigation factors:

1. Appellant's age;
2. Health condition;

100. No evidence of benefits received by the Appellant;

4. Personal circumstances – communication difficulties, language barrier;
5. Effect of long term imprisonment at his age and being a foreigner;
6. no criminal record etc.
   

(8) THE Learned Trial Judge erred in principle when he took a high starting point of 6 years imprisonment."

[8] Ground 1 relates to the directions given to the assessors concerning the elements of the offence of trafficking in persons. The Appellant takes issue with the directions in paragraphs 10 and 14 of the summing up. This ground raises a question of law for which leave is not required (section 21 (1) (a) of the Act). The only issue for the Court at this stage is whether the ground is vexatious or frivolous for the purposes of section 35 (2) of the Act. In my judgment the ground of appeal is neither frivolous nor vexatious.

[9] Ground 2 raises a question of mixed law and fact. This ground concerns both the elements of the offence of trafficking in persons and the evidence adduced at the trial. The issue raised by this ground is not the role of the judge in formally convicting the Appellant upon agreement with the majority opinion of the assessors. It can only be considered in the context of the directions given by the learned judge in his summing up when he analysed the evidence adduced during the trial and the elements of the offence. If the elements of the offence were not correctly stated it is arguable that there was an error in the analysis of the evidence. To the extent that ground one raises a question of law it is reasonable to conclude that ground 2 is arguable and leave is granted.

[10] Ground 3 is concerned with the directions given by the learned trial Judge to the assessors concerning the caution interview which had been admitted into evidence. The Appellant submits that the learned Judge had not fully explained that the issues for the assessors were to determine (1) was the confession made by the Appellant and (2) was the confession truthful. The question of how much weight should be attached to any evidence is a matter for the trier of fact (in this case for the assessors in arriving at their opinion and for the judge in determining whether to confirm the opinion of the assessors and enter a decision of guilty or not guilty). In my view there is no requirement to use a specific formula of words for this purpose. The learned Judge has adequately explained the position in paragraphs 37 and 46 of his summing up. This ground is not arguable.

[11] Ground 4 challenges the directions given to the assessors on how they should consider circumstantial evidence. It would appear that the Appellant does not challenge the definition of circumstantial given by the learned Judge in paragraph 23 of the summing up. The Appellant submits that the trial Judge should have identified for the assessors the relevant circumstantial evidence and the inferences to be drawn from that circumstantial evidence.

[12] At the outset it should be noted that the learned Judge has outlined the evidence, both direct and circumstantial in a full and fair manner in paragraph 27 to 36. The evidence in the form of the caution interview was discussed separately in paragraph 37. The manner in which the assessors were to consider his summary of the evidence was appropriately explained by the learned Judge in paragraph 25.

[13] In my judgment it was in the circumstances of this case unnecessary to give any specific directions about inferences to be drawn since the prosecution case was based on the direct evidence of two of the witnesses and the admissions in the caution interview see: Mohammed Haroon Khan –v- The State (unreported CAV 9 of 2013; 17 April 2014) followed in Petero Bai –v- The State (unreported AAU 118 of 2011; 23 May 2014). The position would have been different in circumstances where circumstantial evidence was the basis for the prosecution case. That was not the case here and in my judgment this ground is not arguable.

[14] Ground 5 is concerned with the directions given on the law of joint enterprise and how it applied to the Appellant in this case. In view of the decision of the Court of Appeal in Sheik M Hussein –v- The State (unreported AAU 32 of 1998; 18 October 2001) and the deeming provision in section 45 of the Crimes Decree 2009 it is arguable that the assessors were left with the impression that mere presence was sufficient to establish guilt on the basis of joint enterprise or common intention. On balance this ground is arguable and leave is granted.

[15] As for the application for leave to appeal against sentence the test for leave is whether there is an arguable error in the sentencing discretion of the trial judge. As with the other three Appellants in this case, it is arguable that the learned Judge has considered as aggravating factors matters that were either not capable of constituting proper aggravating factors or were not properly established by the evidence before the Court. Leave is granted to appeal against sentence.

[16] The Appellant has been granted leave to appeal against conviction on grounds 2 and 5. Leave is not required for ground 1. Leave to appeal against sentence is granted. This appeal is to be listed for callover on 27 March 2015 along with AAU 44 of 2013 (Zhong –v- The State) and AAU 50 of 2013 (Lum and Zhang –v- The State). However this direction is conditional upon an appeal record being certified prior to the date of the callover.

Orders:

(1) Leave not required for ground 1 against conviction.

(2) Leave granted for grounds 2 and 5 against conviction.

(3) Leave granted to appeal against sentence.

____________________________________
Hon. Mr Justice W. D. Calanchini
President, Court of Appeal