Baba v The State [2004] FJHC 141; HAA0074J.2004S (20 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0074 OF 2004S

Between:

FILIPE BABA
Appellant

And:

THE STATE
Respondent

Hearing: 19th August 2004
Judgment: 20th August 2004

Counsel: Appellant in Person
Ms L. Chandra for State

JUDGMENT

The Appellant was sentenced to a total of 4 years imprisonment in respect of the following offences:

FIRST COUNT

Statement of Offence

LARCENY: Contrary to sections 259 and 262 of the Penal Code, Cap. 17.

Particulars of Offence

FILIPE BABA, with others between 8th day of December 2001 and 9th day of December 2001 at Tamavua in the Central Division stole a set of rental car number plate DG 104 valued $30.00 the properties of LATCHMAIYA NAIDU s/o Krishna Naidu.

SECOND COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to section 292 of the Penal Code, Act 17.

Particulars of Offence

FILIPE BABA, with others on 9th day of December 2001 at Tamavua in the Central Division unlawfully and without colour of right but not so as to be guilty of stealing took private van registration number DI888 for their own use.

THIRD COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of the Penal Code, Act 17.

Particulars of Offence

FILIPE BABA, with others on 12th day of December 2001 at Tamavua in the Central Division being armed with offensive weapons robbed ANJILA NARAYAN d/o Birja Nand of $10,000.00 cash, the property of Australian New Zealand Bank.

FOURTH COUNT

Statement of Offence

LARCENY: Contrary to section 262 of the Penal Code, Act 17.

Particulars of Offence

FILIPE BABA, with others between 8th day of December 2001 and 13th day of December 2001 at Suva in the Central Division, stole 1 spare tyre cover valued $275.00, car stereo valued $1000.00, 1 pair sunglass valued $550.00, 1 purse valued $800.00, cash $55.00, Fiji driving licence valued $13.50, New Zealand driving licence, credit cards, ANZ visa cards, safe deposit key valued $10.00, a ball pen valued $700.00, 1 wheel jack valued $50.00 and a tyre valued $140.00, all to the total value of $3683.50, the properties of RUI RU HON.

He now appeals against convictions and sentence on the grounds that he did not receive a fair trial, his medical report was not considered in relation to his challenge to the admissibility of the confession and that there was no direct evidence (other then the confession) of his guilt.

The Appellant was remanded in custody from the 14th of January 2002, when the case was first called in the Magistrates’ Court. On the 25th of January he pleaded not guilty on all counts. There were a number of adjournments and the Appellant was granted bail on the 22nd of January 2003. Prior to that date he had been a serving prisoner. He was granted bail so that he could retain the services of a lawyer. On the 2nd of May 2003, he failed to appear in court and a bench warrant was issued. It later transpired that he was in prison for other offences.

The trial finally proceeded on the 22nd of July 2003. The evidence was that on the 8th of December 2001, the motor vehicle hired by one Latchmaiya Naidu was stolen from his home at Ragg Avenue. On the 9th of December 2001, there was a robbery at the ANZ USP Branch. The glass broken by two masked men who took $9000 in cash. The ANZ manager said that he saw four men and that one was carrying a gun. He said $15,000 was stolen. The security officer at the USP saw a red car DG104 with four passengers in it and a driver. He shut the security gates but the car drove through.

The investigating officer PC Jitoko Filipe located the rental vehicle at 32 Queens Road. He found a pinch bar inside, an air gun, a pair of blue canvas shoes, a wig, maroon balaclavas, and a white glove. He received information that the Appellant was the driver of the getaway vehicle and brought him to the Central Police Station for questioning on the 9th of January 2002. He tendered the interview notes. On the 11th of January he conducted a further interview at the Central Police Station. The accused identified a vodafone which he said he had used in the robbery, the number plate DG104 found in the vehicle use in the robbery, a pinch bar, a gun a pair of canvas shoes and the wig. This last item the accused said he had worn to drive the getaway vehicle. The shoes and the wig were seized from the accused when he was arrested.

It was suggested to Constable Jitoko by the Appellant in cross-examination, that he had obtained the confession by torture and that the Appellant, as a result had to be admitted to the Private Hospital. According to the record, no medical report was tendered or shown to the witness.

The accused’s father gave evidence in the defence case. He said that on the 12th of December 2001 his son, the accused was at home until 11.15am. He then left to visit one Atu. He agreed that he had been sitting in the back of the courtroom for most of the trial and that he did not know where his son was between 11.15am to 8.30pm.

Atunaisa Bokadi gave evidence that the Appellant was at his house with his sons from between 10am to 11am to 12pm on the 12th of December. His wife, Mere Koroi Mocelutu gave evidence that the Appellant came home at 11am and was there at 1.30pm on the 12th of December 2001. The Appellant then made written submissions. The prosecution also made submissions.

The learned Magistrate found that the only evidence implicating the Appellant directly was his interview to the police. In the interviews he admitted being a party to the robbery and to being involved in the planning of the robbery. He accepted the interviews after considering whether or not force had been applied to the Appellant. He found that the interviews were voluntary and that he had signed every page. The learned Magistrate convicted the Appellant on all four counts, but found him guilty of stealing only the purse and $55 on Count 4.

The Appellant had 10 previous convictions for similar offences. He said he was 25 years old, single and unemployed. The turaga-ni-koro of his village made a submission of the Appellant’s behalf. He said that the Appellant should be sent to his village in Lau for 3 years instead of being imprisoned.

In his sentencing remarks the learned Magistrate said that he had already acceded to a request to send the Appellant back to his village in 1999 but that he had returned to Suva to commit more serious offences. He considered a custodial sentence to be inevitable. He used 5 years as the starting point, and took into account the fact that no one was injured in the robbery and that the Appellant was the driver and did not enter the bank. He arrived at 4 years imprisonment on Count 3 (robbery with violence), 3 months imprisonment on Count 1, 3 months imprisonment on Count 2 and 6 months imprisonment on Count 4. He was disqualified from holding or obtaining a driving licence for 2 years. All sentences are to be served concurrently.

The Appellant’s petition of appeal was 2 days out of time but the learned Magistrate granted leave to appeal out of time.

The grounds of appeal

The first ground of appeal is that the Appellant was prejudiced by lack of legal representation. It is correct that the Appellant was never told of his right to a lawyer. However, on the 22nd of January 2003, the Appellant was evidently aware of that right, because he said: “I am not ready. I require legal assistance. I will be released from prison on 24.2.2003 and then I will be in a position to look for a counsel. At the moment I am serving at Maximum prison and as such have difficulty in communicating and arranging for a lawyer.”

The Appellant was then granted bail so that he could arrange for counsel. He did not make any arrangements. Indeed he has remained unrepresented and opted to proceed with this appeal without a lawyer. The court record shows that he conducted his defence ably and with some confidence. He cross-examined on all matters in dispute and called witnesses to establish an alibi. I do not consider that he was in any way prejudiced by lack of representation. Further I consider that despite the long period of remand, he waived his right to counsel because he took no steps to engage a lawyer despite the adjournments.

Nor do I consider that his trial was unfair. He was given every opportunity to cross-examine to challenge evidence and to call evidence. His written submissions to the court show that he had an excellent grasp of the evidence against him. He quite correctly pointed out that the only evidence against him was the caution interviews and that he disputed them on the grounds of lack of voluntariness and oppression.

The proceedings were fairly conducted. This ground is dismissed.

The second ground, and main ground of appeal is that the learned Magistrate did not consider the medical report which supported his submission that he was forced to confess. There is nothing on the record to indicate that the Appellant showed his medical report to any of the witnesses. The prosecution filed an affidavit, of Inspector Bhawani Prasad to show that the report was never produced in evidence and that the prosecution had no idea it existed. The Appellant disputes the contents of the affidavit saying that the report was tendered but that it was ignored.

The court record shows that it was not tendered. There is no reference to the report on the record. This supports the prosecutor’s account of events.

In any event, even if it had been tendered, I do not consider that it could have assisted the Appellant. The report shown to me by the appellant, in the course of this appeal is dated the 20th of February 2002. It is produced on the letterhead of the Suva Private Hospital and is not produced in the official medical report form usually tendered in criminal proceedings. It states that the Appellant was escorted to the Private Hospital by two police officers on the 24th of January 2002. He had fever, a cough and “pleuritic chest pain.” Although he told the doctor he had been assaulted by police on the 10th of January 2002 the doctor’s findings do not confirm any injury consistent with assault. Instead he was diagnosed as having left lobar pneumonia with pleural effusion accompanying chest injury. He was referred to the CWM Hospital for hospitalisation.

There is nothing in the medical report which might have caused the Magistrate to have a reasonable doubt about the voluntariness of the confessions. There were no injuries found on him consistent with severe beating over 4 days with, as he told me, the leg of a chair. His interviews themselves read logically and coherently. He was given many breaks for rest and refreshment. Although his custody period was long, his confessions were on the 9th of January and 11th of January and made after appropriate breaks. I do not consider the circumstances to be oppressive particularly when the Appellant appears to have been interrogated about a number of offences. The learned Magistrate correctly directed himself that he had to be satisfied of the voluntariness of the confessions before he could rely on their contents.

For these reasons this ground of appeal also fails.

Sentence

Although the Appellant did not press an appeal against sentence, he did say that the sentence was excessive. I do not agree. A four year term for a masked and armed robbery on the premises of an educational institution, is not harsh. It is not wrong in principle.

Conclusion

This appeal is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
20th August 2004