Baleilevuka v State [2017] FJCA 95; AAU0058.2015 (8 August 2017)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court of Fiji]

CRIMINAL APPEAL NO: AAU0058 of 2015
[High Court Case No: HAC181 of 2013)

BETWEEN:

JOELI BALEILEVUKA
WATISONI SAQAILAGILAGI
ISAIA BOBO
ISIMELI NARESIA
SAKIUSA TUKANA
Appellants

AND:

THE STATE
Respondent

Coram: Hon. Mr. Justice Daniel Goundar

Counsel: 1^st Appellant in person
Mr. M. Fesaitu for the 2^nd and 3^rd Appellants
Mr. S. Waqanaibete for the 4^th and 5^th Appellants
Ms. S. Puamau for the Respondent

Date of Hearing: 2 August 2017

Date of Ruling : 8 August 2017

RULING

[1] Following a trial in the High Court at Lautoka, the appellants were convicted of two counts of aggravated robbery, three counts of assault causing actual bodily harm and one count of theft of a motor vehicle. On 17 April 2015, the appellants were sentenced to various terms of imprisonment. They seek leave to appeal against their convictions only. The appeals are timely.

[2] At the trial, the appellants were legally represented. The convictions were based on the following evidence:

1^st Appellant – confession, recent possession and accomplice evidence.

2^nd Appellant – confession, recent possession and accomplice evidence.

3^rd Appellant – accomplice evidence.

4^th Appellant – recent possession.

5^th Appellant – recent possession and accomplice evidence.

[3] Although the appellants have filed separate grounds of appeal, they raise common complaints. The common complaints relate to the direction on the evidence of an accomplice, immunity for the accomplice and the chain of custody of the stolen properties that were allegedly recovered from the appellants. The 3^rd appellant further contends that the learned trial judge gave no direction on the exercise of his right to remain silent, misdirected on alibi, failed to give cogent reasons for not agreeing with the majority not guilty opinions of the assessors and failed to give Turnbull direction on identification evidence of the accomplice.

[4] At the trial, the prosecution led evidence from a witness, Sailasa Momo. Mr Momo on oath admitted that he participated in the alleged offences with the appellants. He implicated all except the 4^th appellant. At this stage, it is not clear whether Mr Momo was granted immunity from prosecution. However, it is not in dispute that Mr Momo was an accomplice as that term was defined by the House of Lords in Davis v DPP [1954] AC 378. The law requires a warning to be given about the danger of convicting upon the evidence of an accomplice, unless thidencedence is corroborated (Singh v The State [2006] FJSC 18; CAV0007U.2005S (19 October 2006)). The reason for this rule was explained by the High Court of Australia in Jenkins v R[2004] HCA 57 at 123 [30] a30] as follows:

The rule exists for a reason. That reason is related to the potential unreliability of accomplices&#1an unreliabiliability thought to be so well known in the experience of courts that judges are required, not merely to point it o jurors, but to tell them that it would be dangerous to convict upon the evidence of an&#16n accce unless it s it is corroborated. The principal source of unreliability, although it may be compounded by the circumstances of a particular case, is is red asnatural tendency of an accomplice to minimiseimise the accomplice’#8217;s rols role in a criminal episode, and to exaggerate the role of others, including the accused. Accomplices&#re regarded byed by the law as a notoriously unreliablss ofess, having a spea special cial lack of objectivity. The warning to the jury is for the protection of the accused. The theory is thatness e trial process ress requirequires it. It is a warning that is to be related to the evidence upon which the jury may convict the accused. The reference to danger is to be accompanied by reference to a need to a need to look for corroboration.

[5] Further, the High Court of Australia said at 124 [32]:

Although the common law rule about accomplice warnings is a rule w, and aand although (subject to the proviso) in the ordinary case the requirement for a warning does not depend upon a request being made by trial counsel, the rule is not so mechanical as to call for a warning in any case in which an accomplice give evidence which may be y be relied upon to establish the prosecution case. The application of the rule must be related to its purpose, and will require a consideration of the issues as they have emerged from the way in which the case has been conducted.

[6] In the present case, apart from summarising Mr Momo’s evidence in the summing up, the learned trial judge gave no accomplice direction. This ground is reasonably arguable.

[7] The summing up makes no reference to any immunity granted to Mr Momo. If Mr Momo was granted immunity from prosecution, then the terms of the immunity should have been put to assessors in the summing up. This issue is arguable provided there is evidence that Mr Momo was granted immunity from prosecution.

[8] If identification of the 3^rd appellant by Mr Momo was raised as an issue in cross examination, then the question whether the Turnbull direction was required on identification of the 3^rd appellant by Mr Momo is arguable.

[9] The direction on alibi and the lack of direction on the right to remain silent are questions of law alone. The complaint regarding the lack of cogent reasons for not agreeing with the majority not guilty opinions of the assessors is arguable.

[10] Not all stolen properties that were allegedly recovered from the appellants were produced in evidence. The question whether there was evidence of recent possession and the direction given in the summing up on recent possession is arguable.

[11] Although I am satisfied that the appeals are arguable, I am not convinced that the grounds of appeal have every chance of success for bail to be granted.

Result

[12] Leave granted.
Bail refused.

Hon. Mr. Justice Daniel Goundar
JUSTICE OF APPEAL

Solicitors:

1^st Appellant in person
Office of the Legal Aid Commission for the 2^nd, 3^rd, 4^th and 5^th Appellants
Office of the Director of Public Prosecutions for the State