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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 032 OF 2017
CRIMINAL APPEAL NO. AAU 040 OF 2017
(Magistrates Court Criminal Case No. 886 of 2011)
BETWEEN : LEONE VAKARUSAQOLI
1st Appellant
JOELI TAWATATAU
2nd Appellant
AND : THE STATE
Respondent
Coram : Gamalath, JA
Prematilaka, JA
Bandara, JA
Counsel : Ms S. Ratu for 1st Appellant
2nd Appellant in person
Mr. R. Kumar for the Respondent
Date of Hearing : 25 February, 2022
Date of Judgment : 03 March, 2022
JUDGMENT
Gamalath, JA
[1] The appellants faced trial in the Magistrate’s Court at Nausori, on 2 counts viz
(i) Aggravated Robbery, contrary to Section 311(1)(a) of the Crimes Act 44 of 209 and;
(ii) Resisting Arrest, contrary to Section 277(a) of the Crimes Decree No. 44 of 2009.
The particulars of the crimes are that on the first count the two appellants on the 31st of March 2011, at Naduru Road, Nausori in the Central Division, immediately before committing theft, used force and robbed Ravin Prasad of assorted jewellery valued at $9,500.00, cash $200.00, one Easy telephone valued at $90.00, one Nokia mobile phone valued at $50.00, one Samsung mobile phone valued at $300.00, one pair Nike canvass valued at $2,000.00 and all the total value $12,140.00.
On the second count, only against the 2nd appellant Joeli Tawatatau; on 31st March 2011 at Tacirua in the Central Division, resisted lawful apprehension.
One preliminary observation for clarity is that the order of the appellants as per the Charge Sheet was that the first accused is Joeli Tawatatau and the second accused was Leone Vakarusaqoli. However in the appeal brief, the reverse order appears and as such the first appellant is Leone Vakarusaqoli and the second appellant is Joeli Tawatatau.
The facts in brief
[2] The case before the Magistrate’s Court was instituted by virtue of section 4(2) of the Criminal Procedure Code (Decree) 2009, based on the order to extend the jurisdiction by the High Court.
In the trial six persons testified for the prosecution and the caution interview evidence of the first appellant was admitted in evidence.
Apart from the description of the incident by the victims, there are no direct evidence, as the appellants were said to be wearing masks at the time of the commission of the crime.
According to Navin Prasad, the victim, on 31st March 2011, at around 2.30 a.m. whilst at home, he was awaken by a noise coming from the house. He raised cries, but the masked men who had already entered the house had ordered them to remain quiet. The other inmates, the wife and the two children also entered the room where he was in. The intruders have ransacked the house, assaulted Prasad’s wife and having collected the valuables that belong to them, fled away from the scene of crime with their Toyota vehicle. The witness later identified stolen items, at the Courts.
The Grounds of Appeal;
[3] Although the two appellants are prosecuting their appeals together, on a perusal of their respective grounds one can find that they are relying on distinct grounds in nature and as such the need to consider them separately.
The appeal of the 1st Appellant Leone Vakarusaqoli
[4] The 1st Appellant Leone Vakurusaqoli’s appeal (2nd accused); As already discussed earlier the 1st appellant’s case revolved around his caution statement which was admitted in evidence in the Magistrates Court. At the conclusion of the hearing before the learned Single Judge his application for leave was granted against the conviction.
[5] There were two grounds urged before the learned Single Judge;
Ground (1); The learned Resident Magistrate erred in law and fact when he failed to properly assess the appellant’s admissions in the caution interview at hearing stages rather, he reiterated that the admissions in the caution interview had been admitted which was improper and arguable error made by the Learned Magistrate (sic).
Ground (2); The learned Resident Magistrate erred in law and fact when he failed to properly assess the lack of evidence on the identification of the appellant and convicting the appellant with no identification evidence at all which was improper and raises an arguable error made by the learned Magistrate. (sic)
[6] The learned counsel appearing for the appellant made detailed submissions to the effect that there is a serious error on the part of the learned Magistrate in assessing the evidence of the caution interview. Specific reference was made to the evidence of DC Vilivo at page 318 to argue that that evidence should not have been considered as trustworthy on the issue of voluntariness.
Before concentrating on any other matter I examined the caution interview of the appellant for its weight in evidence.
In page 368 one finds the caution interview of the appellant which runs into merely a page. Accordingly, he had known one Joeli who he met in Suva and wanted him to join him in doing a job meaning the commission of a crime, the details of which are not available in the statement. Thereafter he and Joeli were engaged in a drinking spree and there they discussed the breaking into a house. No details are available in the statement about the house that they intended to break into. On Thursday, the day was unspecified in the statement, Joeli, he and another had gone to the house intended to be invaded, once again the time at which this took place was unspecified in the statement, having visited the house, Joeli and another boy had broken down the door to the house and while he was outside, keeping a watch in the meanwhile other two entered the house and came back with some valuables in a bag. Thereafter, they left the area and Joeli had promised to sell the items and to pay him his share of the loot. However, he had received nothing from Joeli.
[7] As far as his statement is concerned that is all it contains and I find the statement to be totally unspecific about any details of the alleged offence and devoid of any specific information to connect the appellant with the crime under consideration.
[8] In that context what the learned Magistrate had pronounced in the judgment to the effect that “The caution interview of the 2nd accused (1st appellant) which was admitted in evidence after the voire dire details the robbery, the actions of the 1st accused (2nd appellant) and the role of the 2nd accused” is a complete misdirection on evidence and therefore had caused an irreversible miscarriage.
[9] I had paid a keen attention to the evidence of the appellant in the trial in which he had stated that until the Police came to his house and arrested him, he has had no knowledge about the alleged crime.
[10] In the circumstances the ground of appeal of the appellant Leone Vakarusaqoli against his conviction should succeed and he should
be acquitted.
The appeal of the 2nd Appellant Joeli Tawatatau;
[11] Before us Joeli Tawatatau appeared in person. In the Ruling of the learned Single Judge, all his grounds of appeal were not considered favorably. Before the learned Single Judge he relied on four grounds, three against the conviction and one against the sentence. Having considered them the learned Single Judge held that the grounds were without any merits.
[12] In prosecuting the present appeal, in his written submissions he had raised several new grounds of appeal as well.
“[i] The appellant was charged with one count of aggravated robbery contrary to section 311(a)(a) and one count of resisting arrest contrary to section 277(a) of the Crimes Decree 2009.
[ii] The appellant was alleged to have participated in a robbery with a co-accused namely Leone Vakarusaqoli on the 31st day of March, 2011 at Naduru Road, Nausori.
[iii] Your appellant pleaded not guilty running the defence of denial in the Magistrate’s Court which was presiding over the matter and also the said presiding Magistrate stated that the High Court has given him the authorization to proceed with thus said matter under extend jurisdiction without any High Court order to substantiate his claim.
[iv] The trial commenced from 29th to 30th December 2015 and the Judgment was pronounced on the 27th of June 2016 and both appellants was sentenced on the 29th of May 2017 to a term of 10 years imprisonment with a non-parole of 9 years disparate from his co-accused sentence of 9 years imprisonment with a 8 years non-parole despite being principle offender as similar to the appellant.
[v] Being aggrieved with the judgment of the learned Magistrate the appellant forwarded his initial grounds of appeal to the Fiji Court of Appeal Single bench seeking leave to the full bench which was refused by the Single Justice Mr C. Prematilaka on the reason stating that without the benefit of the full Court record he is not in a position to evaluate my submissions.
[vii] As the full Court record is being received by all parties and there are changes of circumstances I now wish to forward my final amended grounds of conviction and sentence appeal, supplementary grounds and submissions.”
[13] Before us, as I understood his submissions, he takes up a somewhat of a new ground 1, which he states that the learned Trial Judge had erred in assessing the caution interview evidence and as such a miscarriage of justice had caused.
For clarity, the impugned paragraph in the Judgement shall be restated;
“The caution interview of the 2nd accused (Leone Vakarusaqoli) after the voire dire details the robbery, the actions of the 1st accused (the appellant) and the role of the 2nd accused. The evidence in Court by the prosecution witnesses is a series of links, which form the chain of evidence. The evidence of the prosecution witnesses ties together. There are no gaps in the evidence which do not link up and complete the chain. This Court accepts the evidence of the prosecution witnesses. All the elements of the offence the accused are charged with are proven by the prosecution”.
[14] It is to be remembered the prosecution in this case did not rely on the caution interview evidence of the appellant and rather their reliance had been on the recent recoveries of the items of stolen good from the appellant’s possession. However, although not raised by the appellant, I am at variance with the line in the learned Magistrate’s finding above, where he said that the confession of Leone Vakarusaqoli reveals the “the actions of the 1st accused,” that is the appellant in this appeal. What exactly was it that the learned Magistrate was trying to convey through the language employed is not clear, having regard to the entire passage.
However, it is well settled thread bear law that a confession of one accused cannot be used to implicate a co-accused and there is no necessity for me to be elaborative on that aspect of the basic legal principle. Trial judges are required to pay attention to this important aspect of law whilst dealing with evidence, where the vulnerability of falling into making mistakes looms largely over the exercise of analyzing evidence. [see Baleilevuka v. State [2019] FJCA 209; AAU58.2015 (3 October 2019)]; Nalave v. State [2019] FJCA 27; CAV0001 of 2019, 01 November 2019].
In that sense, it is arguable that that approach of the learned Magistrate may have caused prejudice to the appellant which is tantamount to a misdirection on law. However, considering the judgement as a whole I find a careful analysis of the evidence made by the learned Magistrate and the fact that the prosecution was not relying on the caution interview evidence of the appellant had not escaped his attention.
Another argument the appellant was trying to advance on his behalf was to do with certain matters relating to issues of facts with no significance. As I understood him, the thrust of the appellant’s argument is that whilst his caution interview was being recorded, certain police officers were not present to overlook the procedure. There is no merit to this argument as the prosecution in anyway disregarded his caution interview in marshaling the evidence and the learned Magistrate’s finding of guilt of the appellant was based entirely on the other evidence to which I have already made reference earlier.
The learned Single Judge refused to grant leave to the appellant to prosecute his appeal against the conviction (and the sentence which he did not canvass before us).
Based on the material at the trial I find the learned Magistrate had convicted the appellant and I see no reason to interfere with his decision and hence his appeal should stand dismissed.
[15] Further, since he is appearing in person and, having been persuaded by his industry in preparing the handwritten copious submissions, I have decided to give due consideration to the grounds of appeal referred to in paragraph 12 above for the sake of justice.
[16] In relation to Ground 1, the case against the 2nd appellant Joeli Tawatatau was not based on any caution interview evidence. As a matter of fact the prosecution stated in the trial that it does not rely on the caution interview evidence of the appellant and rather their reliance was on the evidence of recent recovery of items stolen property that were identified as theirs by the victims of the crime.
The impugned passage of the judgment has a detrimental effect, not on this appellant but on the appellant Leone Vakarusaqoli, on which I have already made my observations when dealing with the appeal of Leone Vakarusaqoli. In the light of these facts there is no merit to this ground of appeal.
Ground II and Ground III
[17] The lack of evidence on the identification has been raised as the main thrust of the ground, and in my understanding what the appellant is driving at is that there is no evidence to connect him to the crime, due to absence of any cogent evidence to connect him to the offence. This factor should ideally be considered along with ground three in which he takes up the position that the learned Resident Magistrate erred in law and fact when he failed to properly assess the recent possession.
[18] In order to deal with the above two grounds, I wish to look at the judgment to find the reasons given by the learned Magistrate to convict the appellant, on the count of Robbery. The learned Magistrate held that (pages 345 and 346);
“There was no direct evidence of identification of any accused person. The victim told the court he could not identify any assailants. ... The evidence of Police Officer Timoci Bola (PW1) was that he was on mobile patrol with other officers and spotted the 1st accused at Tacirua. The company vehicle of the victim was found abandoned at Cunningham, not far from Tacirua. PW1 saw Joeli the 1st accused and asked to search his bag when the 1st accused threw the bag and ran off.”
This evidence was corroborated by DC Vereti of the Prosecution, who corroborated the evidence of Tomasi Bola.
The bag that was seen being thrown away was retrieved and the lost items from the house of the victim were found therein.
In relation to the connection between the appellant and the recovered bag, the evidence of the police officers was that they saw the appellant throwing away the bag and having given his pursuit, they later arrested him.
If I may recall the evidence of Timoci Bola, the police officer at this stage, it was his evidence that (page 315) on the day of the arrest around 7.30 a.m. he saw Joeli standing beside the road with two other boys. He approached him and wanted to search his bag and then the appellant threw his bag in front of them and ran away.
The recovered items from the bag were later identified as theirs by the complainant Ravin Prasad.
I find, that the evidence relating to the recovery of the bag with stolen items was not subject to cross-examination at the trial. (emphasis is mine).
Having considered these items of evidence together, the learned Magistrate arrived at the conclusion that the appellant was guilty as charged. His identity, in this case, the connection with the crime was sought to be established by adverting to the recent recovery of items said to have been stolen and as such, the issue relating to the identification cannot sustain as a ground of appeal.
[19] Ground 4 is in relation to a matter of jurisdiction, which the appellant is stating that in vesting the Magistrate the power to hear this case the appellants (accuseds) views were not sought. Under section 4(2) of the Criminal Procedure Code Cap017A, there is no requirement for the accused’s views to be sought in vesting a Magistrate with jurisdiction to try any offence. Therefore there is no merit to this ground of appeal.
[20] In relation to Ground 9, I find the learned Single Judge had delved into the matter extensively and refused leave and the appellant did not seek to renew the ground before us, except that he had stated it as a ground of appeal in his handwritten submissions. I find no merits to this ground as well.
[21] The grounds of appeal of the appellant Joeli Tawatatau are without any merit and hence his appeal should stand dismissed.
Prematilaka, JA
[22] I have read in draft the judgment of Gamalath, JA and while agreeing that the 01st appellant should be acquitted and the 02nd appellant’s appeal should be dismissed, I may place a few observations of my own on the issue of recent possession evidence as that seems to be the only evidence that connects the 02nd appellant with the robbery.
[23] According to PW1 Timoci Bola and PW2 DC Vereiti (police officers) they had been informed by personal manning the night shift about the incident and while they were on mobile petrol on 31 March 2011 between 7.00 am and 7.30 am at Taciru, not very far from the crime scene, they had spotted the 02nd appellant with a bag in his hand and wanted to search it. He was in the company of two or three other youth behaving in a suspicious manner. When the police officers approached the 02nd appellant he had thrown the bag onto the ground and run away. So did the others. He was apprehended amidst resistance. When the bag was searched they found part of the loot consisting of a few items which were identified by the complainant as stolen items from their home in the early hours on the same day.
[24] The legal position regarding recent possession was extensively discussed in two recent judgments of the Court of Appeal namely Boila v State [2021] FJCA 184; AAU049.2015 (4 May 2021) and Batimudramudra v State [2021] FJCA 96; AAU113.2015 (27 May 2021). These cases have considered several past decisions in this area of law and summarized some important principles relating to the doctrine of recent possession as follows.
(i) Upon proof of the unexplained possession of recently stolen property, the trier of fact may--but not must--draw an inference that the person in possession stole it (the thief) or he received it knowing that someone else had stolen it or of other offences incidental thereto according to the circumstances. This inference can be drawn even if there is no other evidence connecting the accused to the more serious offences.
(ii) The inference is drawn from possession of recently stolen property rather
than recently taking possession of stolen property.
(iii) However, before the court can draw the inference from the accused’s possession of recently stolen property, it must be satisfied of five matters: i. That the ed wapoin possessisession of the operty; ii. That That the property was positively identified by the complainant; iii. That the property ecentolen;v. That the lapse of time from the the time time of its loss to the time the accused wsed was found with it was, from the nature of the item and the circumstances of the case, recent; v. That there are no co-existing circumstances, which point to any other person as having been in possession and;
(iv) The type of circumstances which will be relevant are the length of time between the taking and the finding of the property with the accused, the nature of the property and the lack of any reasonable or credible explanation for the accused’s possession of the property.
(v) The doctrine of recent possession is a rebuttable presumption of facts. When it has been shown that the property has been stolen, and has been found recently after its loss in the possession of the accused, he is called upon to account for having it, and, on his failing to do so, it may well be inferred that his possession was dishonest, and that he was either the thief or the guilty receiver.
[vi) What is ‘recent’ is also to be measured against the surrounding evidence. The term “re#8221; dependepends on the naturthof the property. Frequently cited property srty such as bank notes remain ̶ently stolen#160;fo60;for a shorter period than less frequently traded objects like cars cars, books, clothes, electronic appliances et>
i>(vii) In provinroving possession, the prosecution must establish that the accused had posd possession of the property in question, i.e. had custody of or control over that property and intended to have custody or exercise control over it. The fact that rd party hasy has physical possession of the property does not mean it could not have been possessed by the accused. In thgard,prosecution does does not need to prove that the accused was actually caught with the the property in his or her possession.t is sufficient to prove that the accused possessed the property at the relevant time. [25] In ] In Timo v State [2019] FJSC 1; CAV0022.2018 (25 April 2019) the Supreme Court said:
‘[17] ....i>Indeed, this was a classic example of the application tion of that strand of circumstantial evidence commonly called “recent possession”. In cases where a defendant is found to have been in possession of property which has been stolen very recently, so that it can be said that he was in recent possession of it such that it plainly calls for an explanation from him about how he came to be in possession of it, and either no explanation is given, or such explanation as is given is untrue, the court is entitled to infer, looking at all the relevant circumstances, that the defendant stole the property in question or was a party to its theft. And if the property had been stolen in a burglary or a robbery, the court is entitled to infer, again looking at all the relevant circumstances, that the defendant took part in the burglary or the robbery in which the property was stolen: see, for example, Blackstone’s Criminal Practice 2016, paras F.63-F.64,appliapplied in Fiji in Wainiv The State> [2006] FJCAa>;and&Roko>Rokodreu v The State ef href="http://www.pacw.paclii.org/fj/cases/FJCA/FJCA/2018/209.html" title="View Case">[2018] FJCA 209.’ (emphasis added)
[26] The 02nd appellant in his evidence has denied having a bag containing the loot in his possession when arrested by the police. His evidence in a nutshell amounts to an allegation of fabrication on the part of the police officers. However, this position had not been put to PW1 and PW2 at all in the cross-examination by his counsel. There is little credibility in his ‘explanation’ of recent possession of stolen property. His subsequent conduct of resisting the arrest also militates against his innocence.
[27] Therefore, I am of the view that the totality of evidence clearly demonstrates that the appellant was in recent possession of the property stolen in the early hours of the same morning from the complainant’s house and in all circumstances an inference could be safely drawn that he was part of the group that committed the robbery. The appellant’s ‘explanation’ is not capable of rebutting this inference.
[28] Accordingly, I agree that the 02nd appellant’s conviction should be affirmed and his appeal against conviction should be dismissed.
Bandara, JA
[29] I have read the draft judgment of Gamalath, JA and agree with his reasoning and conclusions.
Orders of the Court
Hon. Justice S. Gamalath
JUSTICE OF APPEAL
Hon. Justice C. Prematilaka
JUSTICE OF APPEAL
Hon. Justice W. Bandara
JUSTICE OF APPEAL
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