Beeby v State [2018] FJCA 93; AAU63.2014 (14 June 2018)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NOS. AAU 63, 65, 68 & 102 of 2014

(High Court HAC 283 of 2012s)

BETWEEN:

SAMUELA BEEBY
PENI TUILASELASE
SITIVENI TUISAMOA
ALIPATE LESI
Appellants

AND:

THE STATE
Respondent

Coram : Calanchini P
Gamalath JA
Bandara JA

Counsel : Mr S. Waqainabete for the Appellants
Mr Y. Prasad for the Respondent

Dates of Hearing : 16 May 2018
Date of Judgment : 14 June 2018

JUDGMENT

Calanchini P

[1] I agree that the appeals against convictions and sentences of all four appellants should be dismissed.

Gamalath JA

[2] The first Appellant, Samuela Beeby [second Accused in the indictment], the second Appellant, Peni Tuilaselase [fourth Accused in the Indictment], the third Appellant Sitiveni Tuisamoa [first accused in the Indictment], and fourth Appellant Alipate Lesi, [third Accused in the Indictment] were indicted at the High Court, Suva on two counts of Aggravated Robbery, contrary to Section 311 (1)(a), (b) of the Crimes Act No. 44 of 2009 and Theft, of a Motor Vehicle, contrary to Section 291(1) of the Crimes Act No. 44 of 2009. All four were convicted after trial and sentenced to 14 years imprisonment with a non-parole period of 12 years. They appealed against the convictions and the sentences and the learned Single Judge granted leave to appeal for all four. The particulars of the charges are as follows;

“First Count

Statement of Offence

Aggravated Robbery: Contrary to section 311 (1)(a)(b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Sitiveni Tuisamoa, Samuela Beeby, Alipate Lesi and Peni Tuilaselase on the 25^th day of July 2012 at Davuilevu Housing, Nasinu in the Central Division being armed with pinch bars and cane knives robbed one Ram with cash of $5,010.00 2 laptop computers valued at $4,400.00, assorted jewelleries valued at $12,800 and mobile phones valued at $2,400.00 to total value of $24,610 .00 the properties of the said RAM.

Second Count

Statement of Offence

Theft of Motor Vehicle: Contrary to section 29(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Sitiveni Tuisamoa, Samuela Beeby, Alipate Lesi and Peni Tuilaselase on the 25^th day of July 2012 at Davuilevu Housing, in the Central Division stole a motor vehicle registration GCEP 01 valued at $30,300.00 the property of RAM.”

[3] Following the trial in the High Court, the Assessors returned the unanimous opinion of guilty of all four Appellants, on the two counts. The learned Trial Judge agreed with the opinion of the Assessors and imposed the following sentences;

(1) that each Appellant to serve 14 years imprisonment on the Aggravated Robbery charge.

(2) that each Appellant to serve 2 years imprisonment on Count 2, the charge of Theft of Motor Vehicle.

The learned High Court Judge ordered the sentences to run concurrently, with a non-parole period of 12 years.

The Evidence

[4] The victim, Ram was awaken by the presence of some people in his back yard around 3:00am on 25 July 2012. He noticed five to six people in his compound. Having realized they were intruders, he and his family started to raise cries seeking assistance from the neighbors. Whilst shouting “thieves” Ram opened the front door of the house expecting the neighbors to come in their assistance. As he opened the front grill, the intruders, who were all wearing masks and armed with knives and bolt cutters, rushed into the house. One of them grabbed Ram and they started to tussle with each other; the others started to ransack the house and demanded to handover to them “money, jewellery, laptop and phones.” The one who was grappling with Ram punched him in the face, causing a bleeding injury to his eye. After the incident the intruders got away with properties worth twenty to twenty-five thousand dollars and used his car as the get-away vehicle.

[5] Ram and his family members testified to the facts of the case. None had seen any of the intruders faces as they were all wearing masks.

[6] At the trial against the appellants, the prosecution witness Sikeli Waqaituinayau, played an important role on whose evidence the prosecution had placed reliance in deciding on the culpability of the third Appellant, Sitiveni Tuisamoa. The witness had known the third Appellant for well over 13 years prior to the incident of this case. On 24 July 2012 around 9.30 in the night ,when the witness was standing in front of a shop overlooking the road in front, third Appellant was seen walking pass that place. The witness called out to him “Siti”. The third Appellant had looked at him and looked the other way. The third Appellant was in the company of six people, and the Appellant was wearing a pompom at that time. The group kept on walking towards the other direction. The third Appellant was only one meter away from him when this happened. On the following morning, when the police visited the scene of crime, they found a pompom, brown in color lying on the ground, in front of the house of the victim Ram. The pompom was produced as an exhibit and was identified by the witness Waqaituinayau as the one that the 3 Appellant was wearing in that night. In cross-examination, the witness qualified his evidence by stating that the pompom looked similar to the one that was worn by the third Appellant. One week before the commencement of the trial the third Appellant had contacted the witness on his mobile phone and warned him not to attend Court to give evidence against him. The third Appellant had further asked the witness to go back on his police statement at the trial. The appellant had told the witness to change his version and to testify to the effect that he fabricated the story of seeing him wearing the pompom, at the behest of police. Having examined the proceedings in the High Court one can find that the evidence of this witness had not been contradicted.

[7] The rest of the evidence against the appellants was all based on their admissions in the caution interview statements, which were admitted in evidence after voire-dire, save the caution interview statement of the third Appellant, whose caution statement was rejected on the basis of involuntariness. In the caution interviews, the first, second and fourth appellants had admitted that they committed the alleged crimes.

The Ruling of the Single Judge

[8] The four appellants challenged in appeal their respective convictions and sentences. The learned Single Judge allowed their Leave Applications against both Convictions and Sentences.

The issue of “oppressiveness”

[9] The ground of appeal 3 of Samuela Beeby, grounds of appeal 7 and 9 of Alipate Lesi, and Peni Tuilaselase’s grounds of appeal 10 and 13 are all based on similar issues and could therefore be considered together.

[10] According to these grounds of appeal, the learned trial Judge had erred in law and in fact especially, when he failed to consider in the voire dire ruling that the State had not discharged the burden of proving that the appellants were not subject to “oppressive treatment” before their caution statements were recorded. Their main argument is that they were not produced before a court of law before the 48 hours period elapsed. In relation to that I find that the available evidence is not in their favour.

[11] At this point, because of its relevancy, I wish to refer to some of the decisions on the definition of the phrase “oppressive treatment ”; it has been defined in several judgments as follows; R v. Fulling [1987] EWCA Crim 4; (1987) QB 426, 85 Cr. App. R. 136,

“The Oxford Dictionary as its third definition of the word runs as follows; exercise of authority or power in a burdensome, harsh or wrongful manner ; unjust or cruel treatment of subjects, inferiors, etc or the imposition of unreasonable or unjust burden”.

(per. Lord Lane (J) at pp 432, 142.

“The Court found it hard to envisage any circumstance in which such oppression would not entail some impropriety on the part of the interrogator”

Archbold, 2005, paragraphs 15 – 354; page 1573.

In R v. Paris, 97 Cr. App. 99 C.A. it was held that;

“Police shouting during interview being held to be oppression”. At the same time there are other authority that supports the view that, ‘raised police voices are not necessarily oppressive’;

(emphasis added), see, R v. Emmerson, 92 Cr. App.R.284, CA R v. Heaton [1993] Crim. L. R. 593. C. A.

In R v. Parker [1995] Crim. L. R. 233, C.A., it was held that the phrase “exercise of authority in a burdensome, harsh, or wrongful manner” does not mean that any wrongful breach of the codes amounts to oppression”.

In R v. Parager [1972] All. E R. 1114 at 1119 CA, the Court of Appeal dealt with the issue on oppression;

“Whether or not there is oppression in an individual case depends upon many elements. They include such things as the length of time of any individual period of questioning, the length of time intervening between periods of questioning whether the accused person had been given proper refreshment or not. And the characteristics of the person who makes the statement.”

[12] Accordingly, I am of opinion that the word “oppressive” in the context of recording statements of suspects by the police should be understood by taking into account of all attendant circumstances, on an objective basis. There is no uniform criterion to be adopted for the purpose. Each case should be evaluated on its own merits.

The Grounds of Appeal

[13] Along with the subtopics altogether there are 23 grounds of appeal advanced by the appellants and they are raised against both convictions and the sentences.

Since the third Appellant’s conviction is based mainly on circumstantial evidence arising out of the finding of the pompom at the scene of crime, in the summing up the learned Trial Judge correctly directed the Assessors on the nature of the evidence that emanates from the exhibit ‘pompom’; the learned trial judge had explained to the assessors the meaning of circumstantial evidence and how such evidence should be evaluated in arriving at a conclusion. The trial judge summed up that circumstantial evidence simply means that the prosecution is relying upon evidence of various circumstances relating to the crime.

I find that the learned High Court Judge’s summing up contains accurate and adequate directions on circumstantial evidence.

[14] In the case of Lulu v. The State, 2017 FJSC 19; CAV 0035.2017 (21 July 2017) in the Supreme Court of Fiji, the Supreme Court held in paragraphs 17-18 as follows:

“[17] However the English decision in McCreevy v Director of Public Prosecutions [1973] 1 WLR 276 does not go so far. This was dealt with by Prematilaka J in his judgment at paras [46-50]. His lordship concluded:

‘[50] I am of the view that on the facts and circumstances of this case the High Court Judge has adequately directed the assessors on how they should approach the circumstantial evidence. What is required is a clear direction that assessors must be satisfied of the guilt of the accused beyond reasonable doubt and the aforesaid direction of the High Court Judge satisfies this requirement fully. Thus, there being no ideal stereotyped direction in evaluating circumstantial evidence, I hold that in the circumstances of the case, the said direction is quite adequate. In any event, I am of the view that the said omission has not caused any substantial prejudice to the Appellant.’

We accept that the position in McCreevy is the correct approach to directions on circumstantial evidence in Fiji. (Per Anthony Gates CJ)

[18] In McCreevy v. Director of Public Prosecutions [1973] 1 WLR 276 it states;

[19] Ratio: There is no rule of law that requires the trial judge to give an explanation as to the difference between proof by direct evidence and proof by circumstances leading to a compelling inference of guilt, or any requirement to use any particular form of words. It depends upon the nature of the case and the evidence.
Lord Morris of Borth-y-Gest said: ‘The particular form and style of a summing up, provided it contains what must on any view be certain essential elements, must depend not only upon the particular features of a particular case, but also upon the view formed by a judge as to the form and style that will be fair and reasonable and helpful. The solemn function of those concerned in a criminal trial is to clear the innocent and to convict the guilty. It is, however, not for the judge but for the jury to decide what evidence is to be accepted and what conclusion should be drawn from it. It is not to be assumed that members of a jury will abandon their reasoning powers and, having decided that they accept as true some particular piece of evidence, will not proceed further to consider whether the effect of that piece of evidence is to point to guilt or is neutral or is to point to innocence. Nor is it to be assumed that in the process of weighing up a great many separate pieces of evidence will forget the fundamental direction, if carefully given to them, that they must not convict unless they are satisfied that guilt has been proved and has been proved beyond all reasonable doubt.”

[15] In the instant appeal, the directions given by the learned High Court Judge with regard to the discovery of the pompom and the other attendant circumstantial evidence in my view is adequate to deal with the 1^st ground of appeal of Sitiveni Tuisamoa. The evidence against the third appellant was not confined only to the finding of the pompom at the scene of crime. The evidence of Waqaituinayau was un-contradicted that the third appellant wanted the witness to desist from giving evidence against him in the trial. Further he had requested in case if he decided not to keep away from courts the witness should testify in a way to exonerate the third appellant. The third appellant wanted the witness to give evidence to the effect that the pompom was associated with him at the behest of the police. This is uncontroverted evidence. In the light of such unchallenged evidence there was a strong case built up against the third appellant. I find that the directions given by the learned trial Judge on circumstantial evidence is quite accurate and satisfying the legal requirements. To be explicit on this I would quote from the summing up;

“[43] To connect accused no.1 (Appellant no.3) to the crimes the prosecution derived on what is often termed circumstantial evidence. ... Circumstantial evidence can be powerful evidence but it is important that you examine it with care and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case. Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, and neither the prosecution, the defence nor you should do that.”

[16] Examining these directions within the four corners of McGreevy’s dicta the directions given by the learned High Court Judge is sufficient in law and I do not find any merits to the ground of appeal advanced by Samuela Beeby against the direction on circumstantial evidence.

The grounds of appeal advanced by Samuela Beeby

[17] Now I wish to turn to the grounds of appeal advanced by Samuela Beeby;

His grounds of appeal are:

1. THAT the learned trial judge erred in law and fact when he failed to consider in his voire dire ruling that the State had not discharged the burden of proof in that the Appellant spending more than 48 hours in Police custody prior to being produced in Court did not amount to oppressive circumstances.
   
2. THAT the learned Trial Judge erred in law and fact in :
   
   1. He failed to consider in his voire dire ruling the evidence of the Appellant and witnesses called on behalf of the Appellant to prove assault whilst in Police custody; and
      
   2. He failed to give cogent reasons on why he did not accept the above mentioned evidence in his voire dire Ruling
      
3. THAT the learned Trial Judge erred in law and fact for prejudicing the Appellant by allowing the following to occur during trial:
   1. Tendering the Appellants unedited caution interview which contain bad character evidence unrelated to the trial (question and answer 45);
   2. Failing to warn the Assessors to discharge any bad character evidence unrelated to the trial which was stated in the Appellant’s caution interview at Question and Answer 45.
      
4. THAT the learned Trial Judge erred in law and fact by failing to direct the Assessors on the issue of whether more than 48 (hours) in Police custody prior to produced in Court was lawful and whether or not such custody amounted to within Court oppressive circumstances closed court which snapped free will of the Appellant.
   

[18] As can be seen Ground 1 and Ground 4 are inter-related. Ground 1 is about the non consideration of the alleged ‘oppressive circumstances’ in the voire dire ruling and Ground 4 is also related to the same issue and it is alleged that the learned trial Judge had failed to give proper directions on the ‘oppressive circumstances’ in his summing up to the Assessors.

[19] The Learned Trial Judge in his voire dire Ruling, has given the following reasons for him to consider that the confessions of Samuela Beeby (first Appellant), Peni Tuilaselase (second Appellant) Alipate Lesi (fourth Appellant) are voluntary statements. Given the reasons to believe that the Appellant’s caution interviews had been on “a voluntarily basis, the following decisions were given;

“7. All the accuseds are challenging the admissibility of their police caution interview statements, in a trial within a trial. They alleged that the police forced the alleged confessions out of them, and the statements were given involuntarily by them, and they gave the same not out of their own free will. They asked the court to declare the statements as inadmissible evidence, in the trial proper.

8. The prosecution, on the other hand, said the accused’s police caution interview statements were given voluntarily by them, and they gave the same out of their own free will. They said. The police never assaulted, threatened or gave them unfair promises before, during and after the caution interviews. Consequently, the prosecution asked the court to declare the accused’s police caution interview statements as admissible evidence, in the trial proper.
   
9. The law in this area is well settled. On 13^th July 1984, the Fiji Court of Appeal in Ganga Ram & Shiu Charan v. Reginam, Criminal Appeal No.46 of 1983, said the following “...it will be remembered that there are two maters each of which requires consideration in this area. First, it must be established affirmatively by the crown beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the use of force, threats of prejudice or inducement by offer of some advantage – what has been picturesquely described as the ‘flattery of hope or the tyranny of fear’ Ibrahim v R (1941) AC 599. DPP v. Ping Lin (1976) AC 574. Secondly even if such voluntariness is established there is also need to consider whether the more general ground of unfairness exists in the way in which the police behaved, perhaps by breach of the Judges Rules falling short of overbearing the will, by trickery or by unfair treatment. Regina v. Sang [1979] UKHL 3; (1980) AC 402, 436 @ C – E. This is a matter of overriding discretion and one cannot specifically categorize the matters which might be taken into account. ...”
   
10. I have carefully considered the evidence of all the prosecutions’ and defences’ witnesses. I have compared and analaysed all of them. After considering the authority mentioned in paragraph 9 hereof, and after looking at all the facts, I have come to the conclusion that all accused, except Accused No. 1, have their police caution interview statements voluntarily and out of their own free will to the police. I therefore rule that Accused No.2, 3 and 4’s police caution interview statements are admissible evidence, and could be used in the trial proper, and its acceptance or otherwise, will be a matter for the assessors.
    

[20] Focusing on the summing up paragraphs 39 – 42 are dealing with the voluntariness of the confession. The learned Trial Judge has carefully analysed the evidence relating to the alleged assaults carried out by the investigating officers in obtaining the confessions of the first, second and fourth appellants.

[21] In paragraph 42 the learned High Court Judge had stated thus;

“[42] You will note that when Accused No. 2 and 4 first appeared in the Nasinu Magistrate Court on 14 August 2012, none of them made a formal complaint against the police to the Resident Magistrate. Accused No. 3 when he first appeared in the Sigatoka Magistrate Court on 31 August 2012, also did not complain against the police to the Resident Magistrate. When accused No.2 and 4 first appeared in the High Court on 28 August 2012, none of them complained to the court about police assaults. Nevertheless, the court ordered they be medically examined at CWM Hospital. However, neither Accused no. 2 nor 4, produced the relevant medical of the examination, to verify their claims. Accused No.3 on 14 September 2012, first appeared in the High Court. He also did not make any complaint against police. You have heard the evidence of the parties. Which version of events to accept is entirely a matter for you.”

[22] As can be seen from the approach on the voluntariness of the confession the learned High Court Judge has approached the matter as required by law. Applying the principles postulated in Maya v. State [2015] FJSC 30; CAV009.2015 (23 October 2015) wherein the Supreme Court has held;

“If involuntariness remains a live issue before the assessors, the trial judge should tell the assessors that even if they are sure that the accused said what the police attributed to him or her, they should nevertheless disregard the confession if they think that, it may have been made involuntarily.”

I find that the learned Trial Judge throughout the trial had been mindful of the need to follow the rationale contained in the above citation of the Supreme Court of Fiji. As the learned High Court Judge has very correctly pointed out in paragraph [42] of the summing up (supra), none of the appellants namely 2^nd, 3^rd or 4^th had made any complaint against the alleged oppressive treatment mattered out to them by the police in order to extract their confessions when they appeared before courts. It is evidence in the trial on 14 August 2012 the appellants Samuela Beeby and the 2^nd Appellant Peni Tuilaselase appeared in Nasinu Magistrates Court. At that stage none of them had made a formal complaint against the police. Alipate Lesi 4^th Appellant also appeared before Sigatoka Magistrates Court on 31^st August 2012. But he also did not make any complaint to the Resident Magistrate. Likewise when 1^st and 2^nd Appellants appeared before the High Court on 28^th August 2012 they also did not make any complaint. Again Alipate Lesi the 4^th appellant was produced before the High Court on 14^th September 2012 then also he did not elect to make any complaint against the police for the alleged oppressive treatment.

[23] With having reference to the decisions which I have cited at the beginning, the test for oppressive treatment, should be based on an objective ground and not on conjecture. It is clearly a matter for the judge at the voire dire stage to determine, based on facts not on conjecture. In the absence of any cogent convincing material for the learned High Court Judge to entertain a reasonable doubt about the voluntariness of the confessions, there is nothing wrong in him arriving at the conclusion that the voluntariness of the confession had been proven beyond any reasonable doubt. In the same way, in this appeal, in the summing up as well as in the judgment the learned trial Judge had followed the proper legal principles and I find that his decision to the assessors on voluntariness has been in harmony with the decision of Maya (supra). In the light of this reasons I find that there is no merit to the 3 and 6 ground of appeal advanced by the 1^st appellant Samuela Beeby and therefore there is no merit to those grounds.

[24] The 4^th Appellant Alipate Lesi had also advanced the grounds of appeal 7 and 8 that are similar to the 3 and 6 grounds of appeal advanced by Samuela Beeby the 1^st Appellant. In the same way the 2^nd appellant Peni Tuilaselase also relies in the 10th, 11^th and the 13^th grounds of appeal. In the sense their complaint is based on the fact that the learned High Court Judge had erred in considering objectively the alleged “oppressive circumstances” existed had negated the voluntariness of the caution statements that these appellants have made to the police.

[25] I have extensively dealt with the similar grounds when I focus my attention on the grounds of appeal of Samuela Beeby namely the 3^rd and 6^th ground of appeal. The reasons given in dismissing the grounds of appeal 3 and 6 of Samuela Beeby are applicable equally to the similar grounds of appeal of the other two appellants Alipate Lesi and Peni Tuilaselase. In the light of this I hold that there is no merit to the grounds of appeal 7, 9, 10 and 13.

[26] The learned High Court Judge in the summing up as well as his Judgment had given adequate consideration on an objective basis about the alleged assaults carried out by the investigating officers in recording the caution interviews of the Appellants 1, 2 and 4. Having examined carefully the relevant passages of the summing up and the judgment of the learned trial Judge I am of the opinion that the learned Trial Judge’s directions and his reasons are without any defect in law. In the light of the situation those grounds of appeal have no merit.

[27] Now I wish to refer back to the second ground advanced by Sitiveni Tuisamoa.

“That the learned Trial Judge’s comments that is ‘it is not necessary for the evidence to provide an answer to all questions raised in a case’ at paragraph 43 sentence 3 of the summing up which was directed at the Assessors with reference to the Appellant negated the need for the State to fulfill its evidential burden.”

The learned Trial Judge in dealing with the evidential burden placed on the prosecution has dealt with the issue adequately in the summing up. This ground of appeal is ill conceived and I find it to be ambiguous and without merit.

[28] Turning to ground 4 of the 1^st appellant Samuela Beeby the learned Trial Judge has stated the following in his voire dire decision (See para. 10) ;

“I have carefully considered the evidence of all the prosecutions’ and defences’ witnesses. I have compared and analysed all of them. After considering the authority mentioned in paragraph 9 hereof, and after looking at all the facts, I have come to the conclusion that all accuseds’ except Accused No. 1 gave their police caution interview statements voluntarily and out of their own free will to the police. I therefore rule that Accused No. 2, 3 and 4’s police caution interview statements are admissible evidence, and could be used in the trial proper, and its acceptance or otherwise, will be a matter for the assessors.”

[29] The learned trial Judge had been careful in not expressing his views on facts of the case in the voire dire decision too openly. He has justified that position in paragraph 11 of his ruling;

“[11]. In giving my reasons abovementioned, I bear in mind what the Court of Appeal said in Sisa Kalisoqo v Reginam, Criminal Appeal No. 52 of 1984, where their Lordships said: ‘...We have of recent times said that in giving a decision after a trial within a trial there are good reasons for the Judge to express himself with an economy of words. ...”

[30] Now I turn to the grounds of appeals 5 and 12. They are both similar in contents and the main complaint is relating to the acceptance of unedited caution interview which carried evidence of bad character. Going through the proceedings of the trial I am unable to find any material that supports the fact that the appellants have objected to the admission of the evidence of the caution interviews in the trial. If they had any complaint to be made with regard to the contents of the caution statements they should have raised the objection at that stage. It is rather late in the day for them to raise this objection as contained in the grounds of appeal referred to above. In the circumstances I find no merits to these grounds of appeal. Equally the new grounds of appeal filed on 8 May 2015 are also without any merits.

The appeal against sentence

[31] The learned High Court Judge has imposed a sentence which was well within the tariff. All four appellants in mitigation has asked for mercy and asked for forgiveness from the complainant, Ram. The sentence is legitimate and I see no reason to interfere with the learned High Court Judge’s finding on the quantum of sentence.

Conclusion

[32] In the light of the above there is no merit to any of the grounds of appeal advanced by the four appellants and therefore this appeal should be dismissed.

Bandara JA

[33] I agree.

Orders of Court

(i) Appeals against convictions by all four appellants are dismissed.
(ii) Appeals against sentences by all four appellants are dismissed.

Hon. Justice W. D. Calanchini

PRESIDENT, COURT OF APPEAL

Hon. Justice S.Gamalath

JUSTICE OF APPEAL

Hon. Justice W.N.Bandara

JUSTICE OF APPEAL