|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 020 of 2016
[In the High Court at Suva Case No. HAC 174 of 2014]
BETWEEN:
JEKESONI VULI
Appellant
AND:
THE STATE
Respondent
Coram: Prematilaka, ARJA
Bandara, JA
Hamza, JA
Counsel: In Person for the Appellant
: Ms. S. Tivao for the Respondent
Date of Hearing: 05 May 2021
Date of Judgment: 18 June 2021
JUDGMENT
Prematilaka, ARJA
[1] I have read in draft the judgment of Bandara, JA and agree that the appeal should be dismissed. However, I may add a few thoughts of my own on some issues raised by the appellant. The underlying challenge to the conviction is primarily based on the issue of voluntariness of his cautioned interview.
Conviction appeal
[2] The appellant’s conviction was based on the only item of evidence led against him i.e. his cautioned statement. It had been admitted after a voir dire inquiry. After his arrest, the appellant had been taken to Namaka police station and from there to Lautoka police station where his cautioned interview had commenced on 31 May 2014 and it had been concluded at Valelevu police station upon the appellant having been transferred there on 01 June 2014. The confessional statements in the cautioned interview had been made at Valelevu police station.
[3] The appellant had given evidence at the voir dire inquiry and alleged heavy assault upon him after his arrest. He had been first brought to Namaka police station on 30 May 2014 where the appellant had, however, not made any complaints to Inspector Taito Susau. He had alleged punching on his chest and head during the interview by the interviewing officer PC 3573 Daniele Turaga. It appears from the proceedings that the allegation of assault by the interviewing officer PC 3573 Daniele Turaga had not been even put to the witnessing officer DC 2561 Vonod Chand who too was present during the interview. Both interviewing officer and witnessing officer in their evidence had said that there was no duress or oppression of any form during the interview and they did not force the appellant to confess. The appellant had admitted under cross-examination that he did not make any complaint of assault, duress or oppression to the Magistrate or the High Court judge when he was produced in both courts. No medical evidence had been produced in support of any injuries to the appellant either.
[4] The trial judge in the voir dire ruling had guided himself according to the principles laid down in Ganga Ram & Shiu Charan v R, Criminal Appeal No.046 of 1 of 1983 (13 July 1984) where the Court of Appeal held:
‘It will be remembered that there are two matters each of which requires consideration in this area. First,Second
[5] Going by the material available at the voir dire inquiry, I do not find that the trial judge had erred in his decision to admit the appellant’s cautioned interview.
[6] The appellant had also questioned by way of an additional ground (second) the delivery of the voir dire ruling on the same day as the sentence was imposed. As my brother Bandara, JA had pointed out the decision on the voir dire inquiry had been pronounced by the trial judge at the end of it after hearing both counsel and the trial judge had informed both parties that detailed reasons would be given later. Therefore, there are no merits in this complaint.
[7] As for the appellant’s complaint in his first additional ground of appeal that the police had acted in breach of the Constitution by holding him for more than 48 hours and obtaining his cautioned interview, it appears that he had been brought to Namaka police station at 21.30 hours on 30 May 2014 (Friday). The cautioned interview had commenced at 18.44 hours on 31 May 2014 (Saturday) at Lautoka police station, which had been suspended at 19.00 hours. The interview had recommenced at 10.31 hours on 01 June 2014 (Sunday) at Valelevu police station and completed at 15.25 hours. The appellant had been produced before Nasinu Magistrates court on 02 June 2014 (Monday). The police officers had explained the reason (31 May and 01 June being Saturday and Sunday) for the delay in bringing the appellant to court after 48 hours since his arrest. However, it appears that the cautioned interview had been completed within 48 hours of the arrest. Therefore, there was no Constitutional breach either in recording the cautioned interview or producing the appellant before court [(vide Heinrich v State [2019] FJCA 41; AAU0029.2017 (7 March 2019)]. There are merits in this ground of appeal as well.
[8] Thereafter, the appellant had kept the issue of voluntariness of his confessional statement live at the trial proper too. The same prosecution witnesses in addition to the complainant and the appellant had given evidence at the trial. The appellant challenges the directions in the summing-up on the approach to the cautioned statement which is at paragraphs 25-28 of the summing-up. Paragraph 27 is the most relevant:
‘When considering the above evidence. I must direct you as follows, as a matter of law. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, in deciding whether or not you can rely on a confession, you will have to decide two questions. First, whether or not the accused did in fact make the statements contained in his police caution statements? If your answer is no, then you have to disregard the statements. If your answer is yes, then you have to answer the second question. Are the confessions true? In answering the above questions, the prosecution must make you sure that the confessions were made and they were true. You will have to examine the circumstances surrounding the taking of the statements from the time of his arrest to when he was first produced in court. If you find he gave his statements voluntarily and the police did not assault, threaten or made false promises to him, while in their custody, then you might give more weight and value to those statements. If it's otherwise, you may give it less weight and value. It is a matter entirely for you.’
[9] In Tuilagi v State [2017] FJCA 116; AAU0090.2013 (14 September 2017) the Court of Appeal summarized the law relating to directions to the assessors on a confessional statement as follows:
‘(i) The matter of admissibility of a confessional statement is a matter solely for the judge to decide upon a voir dire ry upin being satisfied beyd beyond reasonable doubt of its voluntariness (vide Volau v State  Criminal Appeal No.AAU00120of 2013: 2 2017; [2017] FJCA 51).
(iilinghe maof the& the #160;voir dire, the ce is e is entitled toed to canvass again the question of voluntariness and to call evidence relating to that issue at the trial but such evidence goes to the weight and value that the jury would attach to the confession(vide Volau).
(iii) Once a confession is ruled as being voluntary by the trial Judge, whether the accused made it, it is true and sufficient for the conviction (i.e. the weight or probative value) are matters that should be left to the assessors to decide as questions of fact at the trial. In tssessment the jury shou should be directed to take into consideration all the circumstances surrounding the making of the confession including allegations of force, if those allegations were tt to be true to decide whet whether they should place any weight or value on it or what weight or value they would place on it. It is the duty of the trial judge to make this plain to them (vi60;Volau)..
(iv) Even if the assessors are sure that the defendant said what the police attributed to him, they should nevertheless disregard the confession if think that it may have been been made involuntarily (vide160;Noa Maya v.ya v. State Criminal Petition No. CAV f09 of 2015: 23 October [2015 FJSC 30])
(v) Howev160 Noa Maya direcis requonly situatituation where tere the trial Judge changes his mind in the course of the trial contrary tary to his original view about the voluntas or ntemp that that there is a possibility that the confesonfessionasional statement may not have been voluntary. If the trial Judge, having heard all the evidence, firmly remains of the view that the confession is voluntary, Noa Maya direction is irrelevant and not required (vide Volau#160;and&> Lulu v. Stat0;CrimiCriminal Appeal No. CAV 0035 of 2016: 21 July 2017 [2017] FJSC 19.’
[10] Having perused the suhe summing-up and record of evidence at the trial proper, I cannot find anything new (i.e. what was not before court at the voir dire inquiry) which could have made the trial judge to change his mind contrary to his original view about the voluntariness of the appellant’s cautioned interview or upon which he could have contemplated that there was a possibility that the confessional statement may not have been voluntary. Therefore, Noa Maya direcwas not requirequired in this case. The trial judge’s directions at paragraph 27 are substantially in line whe principles of law set out in a number of judicial decisions as summarised in TuilaTuilagi. Thus, there are no merits in the appellant’s complaint.[11] As stated by my brother Bandara, JA there was no question of the trial judge giving Turnbull directions in this case as the entire case against the appellant was based on his cautioned interview. In fact, the single Judge too has correctly held that the appellant’s complaint under the second ground of appeal is misconceived as no evidence was adduced in identification.
[12] Regarding the appellant’s grievance of the insufficiency of evidence to bring home the conviction under the third ground
of appeal, it is clear that once the assessors and the trial judge accepted and relied upon the cautioned statement there was sufficient
evidence to establish all elements of the offence the appellant was charged with beyond reasonable doubt. It is well settled in Fiji
that an accused may be properly convicted on evidence consisting of an uncorroborated confession alone (vide Kean v  e >[[2013] FJCA 117; 117; AAU 95.2008 (13 November 2013) and Kean v The State
[13] On the other hand I find that accordinthe complainant, acting in g in self-defense he had caused injuries to one of the intruders. The appellant had referred to that fact in his cautioned interview and identified the person so injured as Pita. This goes to the truthfulness of the appellant’s account of what happened in the course of the robbery. Moreover, the complainant’s evidence regarding the events in the night of the robbery and the appellant’s narrative in the cautioned interview largely converge with each other.
[14] Therefore, there was circumstantial evidence that went to enhance the truthfulness and therefore, the weight to be placed on the appellant’s confession. There is no merit in the third ground of appeal.
[15] As held by my brother Bandara, JA and the single Judge in the leave ruling I do not find any merits in the criticism under the fourth ground of appeal that the summing-up lacks fairness and balance.
Sentence appeal
[16] As for the first ground of appeal against sentence that the trial judge had committed ‘double counting’ as he had considered the use of crowbars and iron rods and threatening and abusing the victims as aggravating factors, I think it is misconceived.
[17] The appellant was charged with aggravated robbery under section 311(1) (a) of the Crimes Act 2009 which is about robbery in company. If during the course of robbery violent threats are made or excessive force is used, then those matters will constitute aggravating factors if such threats and force exceed what could be considered ordinarily as part and parcel of the robbery.
[18] The use of iron rods and crow bars constitutes an element of the offence under section 311(1) (b) being robbery armed with an offensive weapon. However the appellant had not been charged under section 311(1) (b) but under 311(1) (a) of the Crimes Act 2009.
[19] Therefore, the trial judge had not erred in considering both the use of crowbars and iron rods and threatening and abusing the victims as aggravating factors.
[20] The guidelines to be followed when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [1936] HCA 40; (1936) 55 CLR 499, Kim Nam Bae v The StateState Criminal Appeal No.AAU0nd (i) Acted upon a wrong principle; [21] Samuel Donald Singh v State Crim. AAU15 and 16 of 2011nCalanchini P in the Court of Appeal said: "...ths ample authority in this Jurisdiction for concluding that the appropriate tariff for robberobbery with violence is now 10 to
16 yearrisonment. In selecting 10 g 10 years as a starting point the learned trial judge has started as the lower end of the range." [22] In Nawalu v State [2013] FJSC 11; CAV0012.12 (28 August 2013) the Supreme Court once again said: ‘[27] So far as the head sentence is concerned, the court finds 13 years to be within the range setecentority for seriousrious
viol violent crime such as robbery with violence. Here the outstanding factors triggering a high penalty in the range 10-16 years were the spate of offending, the gravity of the anti-social
behaviour with its menace to persons and property, the invasion of home and privacy, the violence proffered, and the need for very
strong disapproval of such behaviour. With this type of offending, personal mitigation of the kind raised by the Petitioner, that he is married and now has a small child,
count for little. [28] This approach and the tariff have been established in several cases: tate&  v Rokonaokonabete&H160;HAC 118/07; Theeټ v Rasaqiasaqio [2010]157, Basa Basa v Thee;b> b>Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006) and Maya v Stu> [2017] FJCA 110; AAU0013 (ptember 2017)]. In determining whether the sentenentencing discretion has miscarried the aphe appellate courts do not rely
upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances
of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed
lies within the permissible range (Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015). [25] There I do not find any sentencitencing error in the sentence imposed on the appellant by the learned trial judge and therefore
no reasonable prospect of success in appeal against sentence. Given the nature and gravity of the offence, the term of imprisonment
of 12 years with a non-parole term of 11 years cannot be termed as harsh and excessive and is within the accepted range of sentences.
[26] The appellant has also argued that the non-parole period is too close to the head sentence. [27] The Supreme Court in ; [2015] FJSC 23; CAV11 of 2015 (22 October 2015) had quoted fro0;RaogoRaogo v The Stu>
"The mischief that the legislature perceivrceived was that in serious cases and in c in cases involving serial and repeat offenders
the use of the remission power resulted in these offenders leaving prison at too early a date to the detriment of the public who
too soon would be the victims of new offences." [28] In Natiniate [2015] FJCA 154; AAU102 of 20 Dece2015) the Court of Appeal said on the operation oion of the non-parole period as follows:
“While leaving the discretion to decide on the non-parole period when sentencing to the sentencing Judge it would be necessary to state
that the sentencing Judge would be in the best position in the particular case to decide on the non-parole period depending on the circumstances
of the case.” ‘.... was intended to be the minimum period which the offender would have to serve, so that the offender would not be released earlier
than the court thought appropriate, whether on parole or by the operation of any practice relating to remission’. [29] In Korodratate&#/b> [2019] FJCA 193; AAU090.2014ctobe9) the Court of Appeal at [114] stated (see also also Chirk King Yam v State [2015] FJCA 23; AAU0095 of 2011 (27 February 2015) and Kumova v The Queen [2012] VSCA 212): ‘[114] The Court of Appeal guidelines in Tora >&# [30] Section 18(4) of the Sentencing and Penalties Act states that any non-parole period so fixed must be at least 06 months less
than the term of the sentence. Thus, the non-parole period of 11 years (when the head sentence was 12 years) fixed by the trial judge
is in compliance with section 18(4). Therefore, the gap of 01 year between the final sentence and the non-parole period cannot be
said to violate any statutory provisions and it is not obnoxious to the judicial pronouncements on the need to impose a non-parole
period. [31] Corrections Service Section 27 amended 2. Section 27 of the Corrections Service Act 2006 is amended after subsection (2) by inserting the following new subsections— “(3) Notwithstanding subsection (2), where the sentence of a prisoner includes -parole period fixed by a cy a court in accordance
with section 18 of the Sentencing and Penalties Act 2009, for the purposes of the initial classification, the date of release for the prisoner shall be determined on the basis of a remission
of one-third of the sentence not taking into account the non-parole period. (4) For the avoidance of doubt, where the sentence of a prisoner includes a non-parole period fixed by a court in accordance with
section 18 of the Sentencing and Penalties Act 2009, the prisoner must serve the full term of the non-parole period. (5) Subsections (3) and (4) apply to any sentence delivered before or after the commencement of the Corrections Service (Amendment) Act 2019.̶i> Consequential tial amendment 3. The;Sentencing aing and Penalties Act 2009 is amended by&# (a) in i>in section 182;
(i) in subsection (1), deleting “Subject to subsection (2), when” substituting “When&When”; and (ii) deleting subsection (2); and [32] In terms of the new sentencing regime introduced by the Corrections Service (Amendment) Act 2019 (22 November 201hen a court sentences an offender to be imprisoned for life or for a term of 2 years or morr more the court must fix a period during which the offender is not eligible to be released on parole (i.e. the non-parole period) and irrespective of the remission that a prisoner earns by virtue of the provisions in the Corrections Service
Act 2006, such prisoner must serve the full term of the non-parole period. In addition, for the purposes of the initial classification, the date of release for
the prisoner shall be determined on the basis of a remission of one-third of the final/head sentence not taking into account or with
no consideration to the non-parole period. Therefore, when there is a non-parole period included in a sentence, the earliest date
of release of the prisoner for all practical purposes would be the date of completion of the non-parole period notwithstanding or
even if he/she may be entitled to be released early upon remission of the sentence. [33] Therefore, with the above statutory changes the time gap between the head sentence and the non-parole period does not affect
the calculation of remission of one-third of the sentence. [34] Therefore, there are no merits in both grounds of appeal against sentence and the appeal against sentence should be dismissed. Bandara, JA [35] The appellant was charged before the High Court of Suva with Aggravated Robbery contrary to Section 311 (1) (a) of the Crimes
Act 2009. At the conclusion of the trial he was convicted and sentenced to 12 years imprisonment with a non-parole term of 11 years. The count in the Amended Information upon which the appellant was found guilty read as follows: First Count Statement of Offence AGGRAVATED ROBBERY: Contrary to section 311 (1) (a) of the Crimes Decree No. 2009. Particulars of Offence JEKESONI VULI with others, in company of each other on the 1st day of May 2014 at Nasinu in the Central Division, stole 2 HP brand laptops valued at $6500.00, an I-Phone smartphone valued at $3800.00,
2 APPLE brand I-Pods valued at $4800.00, an APPLE brand I-Pod valued at $800.00, 2 APPLE brand I-Touch valued at $2000.00, 3 wrist
watches valued at $1450.00, $1000 (FJD) cash, all to the total value of $31,350.00, the property of SHANAL KAUSHIK PRASAD and before such robbery used force on the said SHANAL KAUSHIK PRASAD. Outcome of the trial before the High Court [36] At the conclusion of the trial on the 12th February 2016, the assessors returned a majority opinion of guilty in respect of the amended count on the Amended Information. [37] The learned High Court Judge concurring with the majority opinion of the assessors convicted the appellant on the 12 February
2016 and on the 4 March 2016 sentenced him to a 12 years imprisonment with a non-parole period of 11 years. Initiation of the Appellate procedure [38] The appellant filed a timely application for leave to appeal against conviction and sentence pursuant to Sections 21 (1)(b) and
(1) ( c) of the Court of Appeal Act. Later he filed an amended Petition of Appeal, setting out 4 grounds of appeal against conviction and 2 grounds of appeal against
sentence. They are as follows: The grounds of appeal against conviction: “1. THAT the learned trial judge erred in law by relying on the confession made by the Appellant in the Caution Interview Statement yet not
adequately and properly directing the assessors on convicting the Appellant on any other evidence apart from the confession. The grounds of appeal against sentence: “1. THAT the learned Sentencing Judge erred in law by enhancing the sentence in “double counting” after considering the Aggravating
Features. 2. THAT the learned Sentencing Judge erred in law in choosing a non-parole period that is close to the head sentence (see Paula Tora).” [39] On 24th September 2018 the single judge of the Court of Appeal refused leave on all grounds of appeal against the conviction and sentence. [40] On the 2nd October 2018 the appellant filed a letter seeking to renew his appeal against conviction to the full court of appeal. [41] At the hearing before this full court the appellant indicated that he would proceed with the same grounds of appeal in his leave
application against the conviction and sentence. [42] The appellant had further filed additional grounds of appeal on 24th March 2020. Factual Background [43] The incident of robbery took place on 1st May 2014. The complainant (PW2 at the trial) lived in the house (where the incident took place) along with his parents and sister.
Around 2.30 a.m the mother of the complainant came to him and said that thieves were breaking into the house. Thereupon the complainant
had gone to the kitchen and grabbed two cane knives to defend himself and the family. Seven persons armed with crowbars and metal
rods broke into the house through the main door by having broken its burglar grill. [44] Seven thieves entered the complainant’s house wearing three quarter pants, black T-shirts, masks and armed with crowbars
and metal rods. The thieves demanded money and jewelries and ransacked the house and stole the assorted items to the total value
of $31, 350.00 mentioned in the Amended Information. The complainant giving evidence had narrated how he confronted the thieves
with a cane knife, in the following manner: “Mr. Prasad: Okay, well they did manage to break in to my parent’s bedroom but I held them off by trying to hit them with the
knife. Judge: You hit some of them with the cane knife? Mr. Prasad: Yes, in the end they started running. Mr. Prasad: Yes, but not in the bedroom. Judge: It’s not my concern you fought back, did you hit some of them with the cane knife? Mr. Prasad: One of them. Judge: I hit one of them with the cane knife, alright.” [45] After thieves fled the crime scene the complainant reported the matter to the police whereupon an investigation commenced. [46] On 30th May 2014 the appellant was arrested at Nadi by the police. He was caution interviewed by the police on 31st May and 1st June 2014. In the caution interview the appellant admitted having being part of the group that attacked and stole the complainant’s
properties from his residence on 1st May 2014. [47] At the trial proper the accused pleaded not guilty to the charge of aggravated robbery in the Amended Information. [48] At the conclusion of the prosecution case when the appellant was called upon to make his defence, the appellant gave sworn evidence
and totally denied having committed the aggravated robbery. He said, he knew nothing of the incident in question. [49] The appellant acknowledged that he was caution interviewed by PC 3573 Daniele Turaga (PW3) (as witnessed by D/Corporal 2561 Vinod
Chand, PW4) on 31st May and 1st June 2014, and the interview notes were tendered in evidence as Prosecution Exhibit number 1. [50] The appellant further said in his evidence that PW3 and PW4 fabricated the alleged confession and the contents were not true.
He alleged that PW3 and PW4 assaulted him during the interview. [51] Ruling the appellant’s caution interview statement as admissible evidence the learned High Court Judge stated in his reasoning: “In this case, the dispute between the parties was familiar. The police caution interview officer (PW2) said the accused was given
his right to counsel, his right to see his relatives and was given the standard rest and meal breaks. He was formally cautioned.
He said, the accused co-operated with police and gave his statements voluntarily. The above were confirmed by the police witnessing
officer (PW3). Both PW2 and PW3 said they did not assault, threaten or made false promises to the accused while he was in their custody. The accused on the other hand said, both PW2 and PW3 assaulted him during the interview. He said, they also swore at him and his mother.
Because of the above, he admitted the offence. He said, he did not do so voluntarily. I have carefully considered the parties’ version of events. I have listened very carefully to their evidence. After considering
the authorities mentioned in paragraph 4 hereof, and after looking at all the facts, I have come to the conclusion that the accused
gave his caution interview statements voluntarily and out of his own free will. I therefore ruled his caution interview statements
as admissible evidence, and the same could be used in the trial proper, but its weight and value, are matters for the assessors to
decide.” Grounds of appeal against conviction Ground One [52] The learned High Court Judge having conducted the Voir Dire hearing on the 8th and 9th February 2016 made his ruling on the 9th of February 2016 admitting caution interview statement to be led in evidence stating; “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. The above were reasons for my ruling on 9 February 2016.” [53] In Noa Maya v The State, [2015]FJSC 30; CAV009 2015 (23 October 2015) where the Supreme Court stated at paragraph 19: There have been two schools of thought in the common law world about this topic in the context of trial by jury. One is that jurors should be told that they should disregard the confession altogether if they are not sure that it was made voluntarily. After all, what weight can be place at all on a confession which may have been made as a result of ill treatment or oppression, or
which may have been induced by a promise of some kind, and which made the suspect confess when he might otherwise not have done so?
He may have been confessing his guilt, not because he was guilty, but for example, because he wanted the ill-treatment to stop. The
other school of thought takes as its starting point the fact that questions of admissibility of evidence are for the judge to decide,
whereas the evaluation of such evidence as has been ruled admissible is for the jurors to make. If the judge is required to direct
the jurors to disregard the confession if they are not sure that it was made voluntarily, that would be tantamount to the judge usurping
the jurors’ function of evaluating the evidence for themselves. On this school of thought, the appropriate direction is to
tell the jurors that the weight which they should give to the confession is for them to decide....” (Emphasis added). Again at paragraph 23, their lordships stated: “ ...Judges should for the time being therefore tell the assessors that even if they are sure that the defendant said what the
police attributed to him, they should nevertheless disregard the confession if they think that it may have been made involuntarily...” (Emphasis added) The learned trial judge had directed the assessors adequately on the issue of caution interview analyzing both the prosecution and
defence propositions. Paragraphs 24 and 27 of the Summing-up are relevant to note in this regard: “To overcome the above, the prosecution relied on an alleged confession the accused allegedly made to the police on 31 May and 1 June
2014. You have heard PC 3573 Daniele Turaga (PW3) give evidence on how he caution interviewed the accused on 31 May 2014 at Lautoka
Police Station. On 1 June 2014, he continued the caution interview at Valelevu Police Station at Nasinu near Suva. According to PW3,
the accused was formally cautioned, he was given his right to counsel and the right to see his relatives, he was given the standard
rest and meal breaks. According to PW3, the accused was asked a total of 97 questions and he gave 97 answers. The interview notes
were tendered in evidence as Prosecution Exhibit No. 1. According to PW3, D/Corporal 2561 Vinod Chand (PW4) witnessed the interview.
PW4 confirmed what PW3 said above, when he gave evidence. According to PW3 and PW4, the accused admitted in the interview that he
was part of the group of men who committed “aggravated robbery” against the complainant and his family, at the material
time – please refer to questions and answers 31 to 90 of Prosecution Exhibit No.1. When considering the above evidence. I must direct you as follows, as a matter of law. A confession, if accepted by the trier of fact
– in this case as assessors and judges of fact – is strong evidence against its maker. However, in deciding whether or
not you can rely on a confession, you will have to decide two questions. First, whether or not the accused did in fact make the statements
contained in his police caution statements? If your answer is no, then you have to disregard the statements. If your answer is yes,
then you have to answer the second question. Are the confessions true? In answering the above questions, the prosecution must make
you sure that the confessions were made and they were true. You will have to examine the circumstances surrounding the taking of
the statements from the time of his arrest to when he was first produced in court. If you find he gave his statements voluntarily
and the police did not assault, threaten or made false promises to him, while in their custody, then you might give more weight and
value to those statements. If its otherwise, you may give it less weight and value. It is a matter entirely for you.” [54] The only evidence the prosecution had, linking the appellant to the crime was his caution interview and it is well settled law,
that an accused person may be properly convicted on the basis of sole evidence of his voluntary confession. [55] In Hassan and two others V. Reginam [1978] FJCA 18 Criminal Appeal 57 of 1977] this Court held citing earlier authorities. “It is well established law that a man may be convicted even of murder, solely upon his confession.” R.V. Sykes (1913) 8 Cr. App R 233. McKay v The King [1935] HCA 70; (1935) 54 CLR 1. Ground of appeal one is devoid of merit. Ground Two [56] There was no evidence before the trial court that any of the witnesses as identified the appellant. In RV Turnbull (1977) QB 224 the English Court of Appeal laid down the principle that in a case of visual identification evidence the judge must give the jury
a special warning of the danger of acting on such evidence and of the reasons for that danger. [57] The Court further held that, “a failure to follow these guidelines is likely to result in conviction being quashed and will do so if the judgment of this Court
on all the evidence the verdict is either unsatisfactory or unsafe.” [58] Turnbull direction puts visual identification into a special category, and in the present case there is no issue regarding visual
identification of the perpetrator. This ground of appeal is misconceived, since Turnbull directions have no application to the instant
case. Ground of appeal two is devoid of merit. Ground Three [59] The evidence led by the prosecution is amply sufficient to come to a guilty verdict. [60] In the judgment the learned High Court Judge states that: “I find all the prosecution’s witnesses as credible witnesses and I accept their evidence. I accept that the complainant (PW2)
was attacked at the material time and his properties stolen. I accept the caution interview officers (PW3) and the witnessing officer’s
(PW4) evidence. I accept that the accused voluntarily gave his confession to the police at the material time and they were the truth.” Given the above, I accept the majority view of the assessors and find the accused guilty as charged and I convict him accordingly.” Appeal ground three is devoid of merits. Ground Four [61] This ground raises following issues in relation to the summing up claiming it lacks fairness and balance thereby causing the
trial to miscarry. The first concern is that the learned trial judge should have directed the assessors on why the station officer
at Nadi police station was allowed to give evidence during the Voir Dire and on the adminisbility of the caution interview. The admissions
in a caution interview is a question of law that should be decided by the trial judge. The weight that should be attached to it the
truthfulness and whether it was made voluntarily are factual matters for the assessors to decide at the trial. The directions given
in the summing up at paragraph 25 – 28 properly deals with the issues. At the trial the counsel for the appellant had not objected
to the witness at either the Voir Dire inquiry or the trial itself. It is absolutely noteworthy that the counsel for the appellant had not sought a re-direction. [62] The second complaint urged under this ground of appeal is that the learned trial judge erred when he stated that the “the defence’s case was simple.” The defence claims that the appellant was not one of the intruders and that the admissions in the caution interview were
either made under duress and therefore not voluntarily made or were fabricated by the police. Hence the defence’s position
was simple. It does not amount to an indication that the trial judge in any manner detracted from or diminished the position taken
by the appellant. [63] The learned trial judge had given clear and proper directions on the issue of weight to be attached to the confession in paragraphs
25 – 28. In “R. V. Lawrence [1982] AC 510, 519, Lord Hailsham observed; A direction to a jury should be custom-built to make the jury understand their task in relation to a particular case. Of course it
must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct
but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and
arguments on both sides and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions
about the primary facts.” Appeal ground four is devoid of merit. Appeal against sentence [64] In relation to this ground of appeal the grievance of the appellant is that the sentencing Court included as aggravating factors
matters that were elements of the statutory offence of aggravated robbery. These include the use of crowbars and iron rods in the
offending and also the fact that the victims were verbally threatened and abused. [65] In the course of committing a robbery if violent threats are made or excessive force is used then these matters will obviously
amount to aggravating factors. In Wallace Wise v The State [2015] FJSC 7; CAV 4 (24 April 2015), the Supreme Court observed that; “We believe that offences of this nature should fall within the range of 8-16 years imprisonment. Each case will depend on its own
peculiar facts. But this is not simply a case of robbery, but one of aggravated robbery. The circumstances charged are either that
the robbery was committed in company with one or more other persons, sometimes in a gang, or where the robbers carry out their crime
when they have a weapon with them. Sentences will be enhanced where additional aggravating factors are also present. Examples would be: It is our duty to make clear these type of offences will be severely disapproved by the courts and be met with appropriately heavy
terms of imprisonment. It is a fundamental requirement of a harmonious civilized and secure society that its inhabitants can sleep
safely in their beds without fear of armed and violent intruders.” [66] The established tariff for Aggravated Robbery is 8 – 16 years imprisonment. In the instant case the learned trial judge had
started off with a sentence of 11 years imprisonment added 3 years for aggravating factors. The two years period the appellant spent
in incarceration had been deducted. Accordingly the appellant was sentenced to an ultimate period of 12 years imprisonment which
is within the middle range of tariff. This does not amount to double counting. [67] The first aggravating factor is concerned with the safety of people in their homes whilst the second aggravating factor concerned
with the factor that the family was asleep at home at the time the robbery took place. [68] The fourth and fifth aggravating factors may seem akin to the elements of the offence. The use of iron rods and crow bars constitutes
an element of the offence under Section 311 (1) (b) being robbery armed with an offensive weapon. However, the appellant had not
been charged under section 311 (1) (b). In Maciu Koroicakau v State (FRCA No. CAV 0006 of 2005S; 4 May 2006) the Supreme Court observed that; “When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must
be considered. Different judges may start from slightly different starting points and give somewhat different weight to particular
facts of aggravation or mitigation, yet still arrive at or close to the same sentence. That is what has occurred here, and no error
is disclosed in either the original sentencing or appeal process.” [69] In any event, in the circumstances of the case, it appears that the 12 years sentence is appropriate and in the sentencing process
no prejudice has been caused to the accused. This ground of appeal lacks in merit. Enlargement of time refused. Ground Two [70] The grievance of the appellant in relation to this ground of appeal is that the non-parole term is too close to the head sentence.
Non-parole term being 11 years is close to the head sentence. [71] In terms of Section 18 (1) of the Sentencing and Penalties Act if an accused is to be imprisoned for life or for a term of two
years or more, the court must fix a non-parole period. In terms of section 18 (4) any non-parole period fixed under this section
must be at least 6 months less than the term of sentence. [72] Accordingly the sentence of 12 years on the appellant with a non-parole period of 11 years is within the parameters of Section
18 of the Sentencing and Penalties Act. Additional Grounds of Appeal [73] Now I advert to the additional grounds of appeal filed by the appellant. The appellant’s additional grounds of appeal are
as follows: [74] The grievance of the appellant in relation to this ground of appeal is that he was in police custody for more than 48 hours. [75] Article 13 of the Constitution of Fiji enshrines the right person who are arrested and detained. The said article of the constitution
reads as follows: “13 – (f) to be brought before a court as soon as reasonably possible, but in any case no later than 48 hours after the
time of arrest, or if that is not reasonably possible, as soon as possible thereafter.” [76] Evidence relating to the arrest, detention of appellant and production before the Magistrate is as follows: The appellant was arrested on the 31 May 2014 in Nadi and was taken to Namaka Police station, Nadi. On 31 May 2014 two Police Officers
from Valelevu Police Station, Suva travelled to Nadi to take custody of the appellant. At Namaka Police Station these two officers
commenced the caution interview of the appellant. The appellant was then brought to the Valelevu Police Station Suva. On 1st June 2014 police concluded the appellant’s caution interview. On the 2nd June 2014 the appellant was produced in Nasinu Magistrates Court. [77] In Heinrich v State [2019] FJCA 41; AAU 0029.2017 (7th March 2019) the Court of Appeal observed that; “However, the High Court judgment in Dharmendra has not ruled out but left it open the possibility that for one or another justifiable
reason or reasons, a person arrested may be produced even after the lapse of 48 hours of the arrest. This is the kind of situation
envisaged under the third limb of Article 13 (1) (f) of the Constitution i.e. “if that is not reasonably possible, as soon
as possible thereafter.” Some examples where the third limb may come into play would be the unavailability of a court in some
outer islands of Fiji or the prevalence of a state of emergency declared by the State etc. Needless to say, that there is no such
instances. It is only logical to think that if a person who is arrested should mandatorily be brought before a court in less than
48 hours at all times without exception, the third limb of Article 13 (1) would be superfluous. Therefore, in my view, when there is a failure to bring a person arrested before a court as soon as reasonably possible or not later
than 48 hours of the arrest (1) he should be produced as soon as possible thereafter and (2) the party bringing that person to court
must place material to satisfy court that it was not reasonably possibly to comply with the first and second timelines and that he
is being brought to court as soon as possible thereafter. This would be particularly required when there is an allegation that the
detention is unlawful for non-compliance with Article 13 (1) (f) of the Constitution. Such a course of action would also help demonstrate
bone fides of the investigating officers. If an extension is sought for detention of the person beyond 48 hours who has been arrested
but cannot be or not brought before court, ordinarily and unless it is impossible, the permission of court should be sought before
the expiry of the 48 hour period. This would ensure that a person would not be held under detention beyond 48 hours without the knowledge
and intervention of a judicial officer even when it is not reasonably possible to bring that person physically before court.” [78] It appears that the appellant had been detained beyond 48 hours due to the intervention of the weekend and, he, who was arrested
on Friday had been produced on the ensuing Monday. The exception set out in the constitution stating “.... or if that is not reasonably possible as soon as possible thereafter”, is clearly applicable here. [79] The counsel for the appellant in the course of the trial at no point had taken this matter as an issue. This ground of appeal
is devoid of merit. Enlargement of time is refused. Additional Ground Two of the Appeal [80] In relation to this ground of appeal the grievance of the appellant is that the learned trial judge did not give his written
ruling at the conclusion of the Voir Dire. As the court proceedings reflect the learned trial judge has given his written ruling
on the 4th March 2016. [81] The following is revealed at page 169 of the trial court proceedings showing that the learned trial judge had given a written
ruling: Judge: Thank you. Just bear with me for a few minutes while I write my Ruling. This is my ruling. Ruling on a Trial within a Trial.
I’ve heard three prosecution witnesses and the accused have his evidence. I rule that the accused caution interview statement
as admissible evidence and it might be tendered at the trial proper but its acceptance or otherwise will be for the assessors. Detailed
written reasons will be given later.”- Additional ground two of the appeal is devoid of merits. Enlargement of time is refused. [82] Having regard to the above I hold that none of the grounds of appeal of both conviction and sentence given consideration above
has merit. Appeal dismissed. Hamza, JA [83] I have read in draft the judgment of Bandara, JA and the concurring judgment of Prematilaka, ARJA. I agree that the appeal against
conviction and sentence be dismissed. Orders of the Court Hon. Mr. Justice Chandana Prematilaka ACTING RESIDENT JUSTICE OF APPEAL Hon. Mr. Justice Wasantha Bandara JUSTICE OF APPEAL Hon. Mr. Justice Riyaz Hamza JUSTICE OF APPEAL
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
(ii) Allowed extraneous or irrelevant vant matters to guide or affect him;
(iv) Failed to take into account some relevant consideration.
(b) deleting section 20(3).
Judge: No, no, you got a right to self defence but did you hit them with the cane knife?
In relation to the caution interview
In the present case the summing up in the overall is fair and balanced.
Ground One
(i) offence committed during home invasion.
(ii) in the middle of the night when victims might be at home asleep,
(iii) carried out with premeditation, or some planning.
(iv) committed with frightening circumstances, such as the smashing of windows, damage to the house or property, or the robbers being
masked.
(v) The weapons in their possession were used and inflicted injuries to the occupants or anyone else in their way.
(vi) Injuries were caused which required hospital treatment, stitching and the like, or which come close to being serious as here
where the knife entered the skin very close to the eye.
(vii) The victims frightened were elderly or vulnerable persons such as small children.
URL: http://www.paclii.org/fj/cases/FJCA/2021/187.html
