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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 178 of 2019
[In the High Court at Suva Case No. HAC 210 of 2018]
BETWEEN:
LUKE TAVAIALU
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, JA
Counsel: Mr. T. Lee for the Appellant
: Mr. R. Kumar for the Respondent
Date of Hearing: 16 February 2021
Date of Ruling: 26 February 2021
RULING
[1] The appellant with two others had been indicted in the High Court of Suva on a single count of aggravated robbery contrary to section 311(1) (a) of the Crimes Act, 2009 committed on 04 April 2018 at Vunisea, Kadavu in the Southern Division.
[2] The information read as follows:
‘Statement of Offence
AGGRAVATED ROBBERY: contrary to on 311(1) (a) o(a) of the Crimes Act 2009.
Particulars of Offence
[3] After the summing-up, the assessors had expressed a unanimous guilty opinion against the appellant as charged on 03 April 2019. The learned High Court judge in his judgment on 08 April 2019 had agreed with the assessors and convicted the appellant. He had been sentenced on 21 May 2019 to 07 years of imprisonment with a non-parole period of 04 years.
[4] The appellant being dissatisfied with the conviction had submitted an application for leave to appeal and an enlargement of time on 28 November 2019. The delay is about 05 months. The Legal Aid Commission had filed a notice of motion seeking an extension of time, affidavit and amended grounds of appeal against conviction and sentence along with written submissions on 15 May 2020. Thus, the delay in so far as the sentence appeal is concerned is nearly 01 year. The state had filed its submissions on 15 February 2021.
[5] Presently, guidance for the determination of an application for extension of time within which an application for leave to appeal may be filed, is given in the decisions in Ras State CAV0009, 001, 0013 of 200 A 24 April 2013 [2013] FJSC 4, Kumar v State; Sinu v State CAV00 2009Augus2 [2012] FJSC 17.
[6] In Kumar&#/b>;the >the SupreSupreme Court held:
‘[4] Appellate courts examine five factors by way of a principled approach to such applications. Those factors are:
<) The reason for the failurailure to file within time.
(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court's consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?
[7] Rasaku the Supreme Cfurther heer held:
‘These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargement of. Ultimately, it is for ther the court to uphold its own rules, while always endeavouring to avoid or redress any grave injustice that might result from the strict application of the rules of court.’
[8] The remarks of Sundaresh Menon JC in Lim Hong Kheng v Public Prosecutor [2006] SGHC 100 shed some more light as to how the appellate court would look at an application for extension of time to appeal.
‘(a)........
(b) In particular, I should apply my mind to the length of the delay, the sufficiency of any explanation given in respect of the
delay and the prospects in the appeal.
(c) These factors are not to be considered and evaluated in a mechanistic way or as though they are necessarily of equal or of any
particular importance relative to one another in every case. Nor should it be expected that each of these factors will be considered
in exactly the same manner in all cases.
(d) Generally, where the delay is minimal or there is a compelling explanation for a delay, it may be appropriate to subject the prospects
in the appeal to rather less scrutiny than would be appropriate in cases of inordinate delay or delay that has not been entirely
satisfactorily explained.
(e) It would seldom, if ever, be appropriate to ignore any of these factors because that would undermine the principles that a party
in breach of these rules has no automatic entitlement to an extension and that the rules and statutes are expected to be adhered
to. It is only in the deserving cases, where it is necessary to enable substantial justice to be done, that the breach will be excused.’
[9] Sundaresh Menon JC also observed:
‘27......... It virtually goes without saying that the procedural rules and timelines set out in the relevant rules or statutes are there to be obeyed. These rules and timetables have been provided for very good reasons but they are there to serve the ends of justice and not to frustrate them. To ensure that justice is done in each case, a measure of flexibility is provided so that transgressions can be excused in appropriate cases. It is equally clear that a party seeking the court’s indulgence to excuse a breach must put forward sufficient material upon which the court may act. No party in breach of such rules has an entitlement to an extension of time.’
[10] Under the third and fourth factors in Kumar, test for enlargement of time now is ‘real prospect of success’. In Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019) the Court of Appeal said:
‘[23] In my view, therefore, the thld for enlargemengement of time should logically beb>higher than than that of leave to appeal and der to obtnlargement ornt or extension of time the appellant must sy tsfy this this court that his appeal not only has &#merit17; and would prod probably succeed but also has a
‘real prospect of successss’ (see R v Mi/b>
L>Lengthength of d of delay
[11] The delay is about 05 months and 01 year respectively in respect of conviction and sentence appeals. Both appeals are substantially out of time.
[12] In Nawalu v State [2013] FJSC 11; CAV0012.12 (28 August 2013) the Supreme Court said that for an incarcerated unrepresented appellant up to 03 months might persuade
a court to consider granting leave if other factors are in his or her favour and observed.
‘In J Miller v The State A160;AAU007623rd October 20er 2007) Byrne J considered 3 months in a criminal matter a delay period
which could be considered reasonable to justify the court granting .Rr>[13] However, Ier, I also wish to reiterate the comments
ents of Byrne J, in Julien Miller v The State AAU0076/07 (23 October tha) that:
‘... that the Courts have said time and again that the rules of time limits must be obeyed, otherwise thes of the Courts would
be in a state of chaos. The law expects litigants and would-be appellppellants to exercise their rights promptly and certainly, as
far as notices of appeal are concerned within the time prescribed by the relevant legislation.’
[14] The appellant’s excuse for the delay is that legal assistance was not rendered to him after the sentence to lodge his appeal within time until his fellow inmates helped him to lodge the appeal. Still his explanation does not state why he did not appeal against sentence in the first instance even after 05 months when he appealed against conviction. The appellant had been defended by counsel at the trial and he had not stated that he actively sought legal assistance from the same counsel or Legal Aid Commission. Therefore, the appellant’s explanation is not convincing.
Merits of the appeal
[15] In State v Ramesh Patel (AAU 2 of 2002: 15 Novemb02 2002) this Court, when the delay was some 26 months, stated (quoted in Waqa v State [2013] FJCA 2; AAU62.2011 (18 January 2013) that delay alone will not decide the matter of extension of tnd the court would considersider the merits as well.
"We have reached the conclusion that despite the excessive and unexplained delay, the strength of the grounds of appeal and the absence of prejudice are such that it is in the interests of justice that leave be granted to the applicant."
[16] Therefore, I would proceed to consider the third and fourth factors in Kumar regarding the merits of the appeal as well in order to consider whether despite the delay and the absence of a convincing explanation, the prospects of his appeal would warrant granting enlargement of time.
[17] Grounds of appeal against conviction and sentence are as follows:
Conviction
Ground 1:
That the learned Trial Judge may have fallen into an error in fact and law at Summing Up to direct the Assessor to place more weight on the evidence of the accomplice witness.
Ground 2:
That the learned Trial Judge may have fallen into an error in law and fact to convict the Appellant without considering and assessing independently the totality of the evidence regarding the inconsistencies of the State’s evidence thereby causing a substantial miscarriage of justice.
Ground 3:
That the learned Trial Judge may have fallen into an error in law and fact to convict the Appellant without considering and assessing independently the totality of the evidence regarding the fabrication of Appellant’s confession since a conflict of interest had existed between the interviewing officer and the charging officer.
Sentence
Ground 1:
That the learned Magistrate erred in law by imposing a sentence deemed harsh and excessive without having regard to the sentencing guideline and applicable tariff for the offence of aggravated robbery of this nature.
Ground 2:
That the learned Magistrate erred in fact and law allowing extraneous or irrelevant matters to guide or affect him when sentencing the Appellant.
Ground 3:
That the learned Magistrate erred in fact and law in improperly discounting for the mitigating factors to decrease the sentence.
[18] The prosecution evidence of the case as summarised by the learned High Court judge in the sentencing order is as follows. The appellant was an ex-policeman and accused No.3 at the trial where he gave evidence but not called any other evidence.
01st ground of appeal
[19] The appellant’s complaint is based on paragraph 32 of the summing-up which is as follows:
‘[32] Waro did not say that he was promised a pardon in return for him giving evidence for the prosecution. Therefore, you may attach a greater weight to his evidence than what is given to an accomplice who has been promised an incentive.’
[20] Witness (PW7) Waro was the second accused at the trial who had pleaded guilty and sentenced to 05 years of imprisonment earlier. State counsel has submitted that Waro abandoned his appeal in the Court of Appeal on 23 December 2020. After he pleaded guilty, the state had made him one of its witnesses. Although PW7 was clearly an accomplice by the time he gave evidence he had admitted his guilt and sentenced by court and had no expectation of any pardon or other incentive to testify falsely against his co-accused. However, the trial judge had given full directions on how to assess the evidence of an accomplice at paragraph 31 and 33 of the summing-up regarding PW7’s evidence.
[21] Obviously, there was additional evidence in the form of the cautioned interview and the charge statement of the appellant where he had made admissions of his involvement in the robbery in addition to the evidence of PW7. The appellant and the interviewing police officer (and possibly the charging officer) had been colleagues in the police department. Therefore, his allegation that his admissions in the charge statement and the cautioned interview were fabrications by the police carries little weight. The complainant’s evidence too had corroborated the evidence of PW7 in material particulars though the former had not identified the appellant at the crime scene.
[22] In any event, the judge had analyzed the evidence of PW7 at paragraphs 9-13 and accepted his testimony as reliable.
[23] Therefore, I do not think that there is merit in the appellant’s criticism of what the trial judge had told the assessors at paragraph 32 regarding giving greater weight to PW7’s testimony than what is usually given to an accomplice in the context of the totality of evidence stacked against the appellant and this ground of appeal has no real prospect of success. Justice Stock’s comments at paragraph 49 in Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020) does not affect this position.
02nd ground of appeal
[24] The appellant submits that the trial judge had not independently analyzed the inconsistencies of the prosecution case. He relies on Ram v State [2012] FJSC 12; CAV0001 of 2011 (09 May 2012). This complaint has to be considered in the light of the trial judge’s role in agreeing with the assessors.
[25] When the trial judge agrees with the majority of assessors, the law doe require the jude judge to spell out his reasons for agreeing
with the assessors in a judgment but it is advisable for the triale to always follow the sound and best practice of briefly setting
out evidence and preferabferably reasons for his agreement with the assessors in a concise written judgment as it would be of great
assistance to the appellate courts to understand that the trial judge had given his mind to the fact that the verdict of court was
supported by the evidence and was not perverse so that a judge’s agreement with the assessors’ opinion is not viewed
as a mere rubber stamp of the latter ([vide Moha#160; v Stat State ea hrttp://www.paclii.org/forg/fj/cases/FJSC/2014/2.html" title="View Case">[2014] FJSC 2 Kaiyumate < [2014] FJCA 35; AAU0071.2012 (14 March 2014), Chand60; v #160; State&##60;&[2015] FJSC 32; CAV21.2015 (10 December 2015) and
[26] The applicable test in assessing the contradictions, inconsistenciesncies and omissions was laid down in the case of Nadim v State [2015] FJCA 130; AAU0080.2011 (2 October 2015) as follows:
‘[13] Generally speaking, I see no reasoto why similar principles oles of law and guidelines should not be adopted in respect of omissions as well. Because, be they inconsistencies or omissions both go to the credibility of the witnesses (see R. v O’Neu>> [1969] Crim. L. R. 2But, tht, the weight to be attached to any inconsistency or omission depends on the facts and circumstances of each case. Nd and rule could be laid down in that regard. The broa broad guideline is that discrepancies whis which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance (see Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] AIR 753, 1983 SCR (3) 280)’
[27] TurogTurogo v State [2016] FJCA 117; AA8.2013 (30 September 2016) 016) the Court of Appeal further stated:
‘[35]...........Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all-important "probabilities-factor" echoes in favour of the version narrated by the witnesses. The reasons are: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; (2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details; (3) The powers of observation differ from person to person. What one may notice, another may not. ...... It is unrealistic to expect a witness to be a human tape recorder;”
[28] The Court of Appeal followed the above decisions in Chand v State [2019] FJCA 192; AAU0033.2015 (3 October 2019).
[29] It is a paramount duty of the trial judge to direct and guide the assessors on how to act on the inconsistencies or contradictions or omissions (vide Prasad v State [ 2017] FJCA 112; AAU105 of 2013 (14 September 2017). The trial judge had fulfilled this obligation at paragraphs 11, 12 and 19 of the summing-up.
[30] The inconsistency the appellant complains about arises from what is stated at paragraph 40 and 56 of the summing-up. According to the complainant, he only saw two people participating in the robbery whereas PW7 had spoken to three accused including the appellant and himself participating in the robbery. The complainant had further said that while the first person continued to assault him the second person went to the van to steal. The second person appears to be the appellant.
[31] When the evidence is analyzed it becomes clear that according to PW7 his primary role was to guard the place and for the other two to take the complainant out of the vehicle and rob him. When the complainant was being punched and held by the 01st accused, PW7 (02nd accused) and the appellant (03rd accused) had gone to the van looking for money.
[32] Thus, according to the complainant only two persons participated in the robbery whereas PW7 had implicated the appellant, himself and the 01st accused in the robbery. According to PW7 the complainant had not seen him.
[33] The trial judge had brought these matters clearly to the attention of the assessors. Given the time, place and the manner in which the whole incident happened it is quite possible that the complainant did not observe the presence of the third person.
[34] In any event, the above inconsistency between the complainant and PW7 would not have the effect of shaking the foundation of the prosecution case as the appellant himself had admitted participating in the robbery in his cautioned interview and the charge statement. Thus, the presence of three persons at the crime scene had been established by the appellant’s confessions.
[35] Therefore, there is no real prospect for this ground of appeal to succeed in appeal.
03rd ground of appeal
[36] The appellant challenges his confessional statement under this ground of appeal on the basis that the interviewing officer and the witnessing officer had been husband and wife (see paragraphs 50). According to him, it had resulted in conflict of interest, abuse of process of natural justice and lack of ‘good faith’. It does not appear that the appellant had challenged the admissibility of the cautioned interview on this basis at the stage of voir dire (if there was one). The interviewing officer (PW4) had not selected his wife (PW5) to be the witnessing officer but she had been assigned for that role by the OIC of Kadavu Police Station (see paragraphs 51 and 52) where, according to the oral submissions of the appellant’s counsel, there were only four police officers consisting of two couples in addition to, perhaps, the OIC.
[37] The appellant’s position had been that the cautioned statements had been fabricated. The trial judge had addressed this allegation at paragraph 21 of the judgment as follows:
[38] The appellants’ allegation that his cautioned interview had been fabricated by the spouses consisting of PW4 and PW5 does not apply to his charge statement recorded by PW6. Therefore, the appellant appears to have taken up the position regarding his charge statement where too he had admitted his involvement in the robbery that he lied to PW6 as he was promised that he would be made a state witness.
[39] PW4, PW5 and PW6 had denied the appellant’s allegations of ‘fabrication’ and ‘promise’. The trial judge had placed the above allegations regarding the recording of his cautioned interview and the charge statement clearly before the assessors who had not believed them. The trial judge too had rejected them in the judgment.
[40] I do not think the decision in State v Pal [2008] FJCA 13; AAU0036 of 2006 (08 February 2008) can be relevant to this case. In Pal the state had appealed against the issuance of a permanent stay of proceedings order by the trial judge in alleged violation of rules of natural justice/procedural fairness i.e. without hearing the state when the respondent had sought only to exclude video recording evidence at the voir dire hearing on grounds such as ‘bad faith’, inducement, coaxing, abuse of process, including entrapment. The stay had been issues at the end of voir dire inquiry without continuing with the trial. The observations relied on by the appellant made by the Court of Appeal should therefore be understood in the factual matrix of Pal. The appellant’s challenge to the cautioned interview and the charge statement is simply based on two grounds both of which had been ventilated in the summing-up and the judgment and rejected by the assessors and the trial judge.
[41] Therefore, there is no real prospect of success of this ground of appeal.
01st ground of appeal (sentence)
[42] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] 14; House v The King [1936] HCA 40; &(1936) 55 CLR 499, Kim Nam Bae v Thev The State Criminal Appeal N0015 and
Acted upon a wrong principlnciple;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.
[43] The appellppellant complains that the sentence is excessive on the basis that the trial judge had not had regard to the sentencing guidelines andicable tariff.
[44] The appellant seems to argu argue that the trial judge should have applied the sentencing tariff of eighteen months to five years for ‘street mugging’ (see Raqauqau v State [2008] FJCA 34;100.2007 (4 August 2008), Tawake v State [2019] FJCA 182; AAU0013.2017 (3 October 2019) and Qalivere te [2020] FJCA 1; AAU71.2017 (27 February 2020] in dealing with him but somehow wrongly ngly applied tariff set in Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015) i.e. to 16 years ears of imprisonment for ‘home invasions’.
[45] The judge had not clearly applied the sentencing tariff for ‘home invasions’ prbed in Wise in picking the starting point at 06 years despite having stated that the van was used as complainant’s temporary dwelling house which was, of course, a fact. He said in the sentencing order as follows:
[11] In assessing the objective seriousness of your offending, I looked at culpability of your offending and the harm caused to the complainant. In selecting the starting point, the court must strike a delicate balance between the seriousness of the offence as reflected in the maximum sentence available under the law and the seriousness of the actual acts of the person who is to be sentenced
[13] Luke, you assisted Keperieli to pull the complainant out of his vehicle and assisted wholeheartedly to rob him. The starting point I would select for you is 6 years.
[46] This is clearly not an instance of mere ‘street mugging’ either. Therefore, I see no fault in the trial judge picking 06 years as the starting point based on objective seriousness of the offending.
02nd ground of appeal
[47] The appellant also complains that the trial judge had taken extraneous matters into consideration in enhancing the sentence by 03 years. The aggravating features considered by the judge are as follows:
[15] ..........You robbed the complainant when he was sleeping in his van. At the material time, the van was used as complainant’s temporary dwelling house. The complainant was attacked at night. The attack was premeditated. You were drunk and ruthless. The complainant was dragged out of his vehicle and physically beaten to a point where he feared for his life, forcing him to disclose the location where he kept day’s earnings. The complainant received hospital treatment. Both of you were police officers and the guardians of rule of law. You committed this offence when you were supposed to prevent crimes and not commit them. You breached the trust the people had on you as police officers........
[48] None of these matters are extraneous not do they amount to double counting. They, by and large, relate to subjective seriousness of the offending. It appears that the trial judge had considered the objective circumstances of the offending in picking the starting point at 06 years and added 03 years for subjective circumstances of the offender as prescribed in two-tiered sentencing approach [see Naikelekelevesi v State [2008] FJCA 11; AAU0061.2007 (27 June 2008) and Qurai v State [2015] FJSC 15; CAV24.2014 (20 August 2015)].
03rd ground of appeal
[49] The appellant criticises the trial judge regarding the mitigating features considered and the deduction of 02 years. The trial judge had stated:
‘[18]. Luke, you are 27 years of age. You were suspended from Fiji Police Force when you were charged for this offence. You are a first offender. Your Counsel has submitted that you are remorseful of your actions. However, you have maintained the not guilty plea in court and have not shown a genuine remorse. You will be given a discount for your clean record and youth. You had been in remand for 2 weeks. The remand period will be separately discounted. For the mitigating features and the remand period, I deduct 2 years to arrive at a sentence of 7 years’ imprisonment. Having considered your rehabilitation potential as a young and first offender, I fix a non- parole period of 4 years.’
[50] The trial judge had finally summed-up the sentence as follows:
‘[19] The offence you committed whilst being in the Fiji Police Force should be denounced and adequately punished. The courts have a duty to deter this kind of anti-social behaviour using violence on innocent members of the public and to safeguard their propriety rights. Potential offenders should be sent a clear message. The primary purposes of this punishment are deterrence and denunciation.’
[51] There is no sentencing error or a real prospect of success on any of the grounds of appeal urged against the sentence.
[52] On the other hand, it is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. 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 (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the 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)].
[53] When the appellant’s sentence of 07 years is considered, given the facts of this case I am of the view that he has no real prospect of success in appeal as far as his sentence appeal is concerned.
Prejudice to the respondent
[54] No prejudice to the respondent by the extension of time had been averred.
Orders
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
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