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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO: HAA041 OF 2003S
Between:
THE STATE
Appellant
And:
LASARUSA BENU
ILAISA VUKULU
MOSESE BOLADRAU
LEPANI VOSALEVU
RUSIATE VAKADANI
TOMASI VOSALEVU
KAMINIELI ROKO
USAIA TADAU
WATISONI MOROCA
Respondents
Hearing: 20th February 2004
Judgment: 5th March 2004
Mr. P. Ridgeway for State
Respondents in Person
JUDGMENT
On the 4th of February 2003, the Respondents were acquitted on a number of counts by the Nausori Magistrates’ Court. This is the State’s appeal against those acquittals.
The charges laid read as follows:
FIRST COUNT
Statement of Offence
ROBBERY WITH VIOLENCE: Contrary to Section 293(1) of the Penal Code, Cap 17.
Particulars of Offence
LASARUSA BENU, ILAISA VUKULU, MOSESE BOLADRAU, LEPANI VOSALEVU, RUSIATE VAKADANI and others on the 19th day of May 2000 at Muaniweni, Naitasiri in the Central Division, robbed HARI DIWARKAR PRASAD s/o Hari Bans of household goods and money and immediately before the said robbery did use personal violence on the said DIWARKAR PRASAD s/o Hari Bans.
SECOND COUNT
Statement of Offence
ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code, Cap 17.
Particulars of Offence
LASARUSA BENU, ILAISA VUKULU, MOSESE BALADRAU, LEPANI VOSALEVU, RUSIATE VAKADANI and others on the 19th day of May 2000 at Muaniweni, Naitasiri in the Central Division, robbed HARI DIWARKAR PRASAD s/o Hari Bans of household goods and money and immediately before the said robbery did use personal violence on the said HARI DIWARKAR PRASAD s/o Hari Bans.
ALTERNATIVELY
SECOND COUNT
Statement of Offence
WOUNDING WITH INTENT: Contrary to section 224 of the Penal Code, Cap 17.
Particulars of Offence
ILAISA VOKULU on the 19th day of May 2000 at Muaniweni, Naitasiri in the Central Division, wounded HARI RAVINDRA CHANDRA s/o Hari Bans with intent to disable, or do some grievous harm.
ALTERNATIVELY
THIRD COUNT
Statement of Offence
WOUNDING WITH INTENT: Contrary to section 224 of the Penal Code, Cap 17.
Particulars of Offence
LASARUSA BENU on the 19th day of May 2000 at Muaniweni, Naitasiri in the Central Division, wounded HARI DIWARKAR PRASAD s/o Hari Bans with intent to disable, or do some grievous harm.
FOURTH COUNT
Statement of Offence
LARCENY OF CATTLE: Contrary to section 275 of the Penal Code, Cap 17.
Particulars of Offence
TOMASI VOSALEVU, ILAISA VUKULU, LASARUSA BENU and others on the 21st day of May 2000 at Muaniweni, Naitasiri in the Central Division, stole a cow of value the property of HARI DIWARKAR PRASAD s/o Hari Bans.
FIFTH COUNT
Statement of Offence
LARCENY OF ROOTCROP: Contrary to section 282 of the Penal Code, Cap 17.
Particulars of Offence
TOMASI VOSALEVU and others on the 21st day of May 2000 at Muaniweni, Naitasiri in the Central Division, stole sacks of dalo of value, the property of HARI DIWARKAR PRASAD s/o Hari Bans.
SIXTH COUNT
Statement of Offence
LARCENY OF ROOTCROP: Contrary to section 282 of the Penal Code, Cap. 17.
Particulars of Offence
TOMASI VOSALEVU, ILAISA VUKULU, KAMINIELI ROKO, LEPANI VOSALEVU and others on the 28th day of May 2000 at Muaniweni, Naitasiri in the Central Division, stole sacks of dalo of value, the property of HARI DIWARKAR PRASAD s/o Hari Bans.
SEVENTH COUNT
Statement of Offence
LARCENY OF CATTLE: Contrary to section 275 of the Penal Code, Cap 17.
Particulars of Offence
TOMASI VOSALEVU, ILAISA VUKULU, RUSIATE VAKADANI, USARIA TADAU, KAMINIELI ROKO, WATISONI MOROCA and others on the 29th day of May 2000 at Muaniweni, Naitasiri in the Central Division, stole a cow of value, the property of HARI DIWARKAR PRASAD s/o Hari Bans.
EIGHTH COUNT
Statement of Offence
LARCENY OF CATTLE: Contrary to section 275 of the Penal Code, Cap 17.
Particulars of Offence
TOMASI VOSALEVU, ILAISA VUKULU, RUSIATE VAKADRANI, USARIA TADAU, KAMINIELI ROKO, WATISONI MOROCA and others on the 29th day of may 2000 at Muaniweni, Naitasiri in the Central Division, stole a cow of value, the property of CHANDRIKA PRASAD.
NINTH COUNT
Statement of Offence
LARCENY OF CATTLE: Contrary to section 275 of the Penal Code, Cap 17.
Particulars of Offence
TOMASI VOSALEVU, ILAISA VUKULU, RUSIATE VAKADANI, USARIA TADAU, KAMINIELI ROKO, WATISONI MOROCA and others on the 29th day of May 2000 at Muaniweni, Naitasiri in the Central Division, stole a cow of value, the property of JAMES CHAND s/o Shiri Govind.
TENTH COUNT
Statement of Offence
LARCENY OF ROOTCROP: Contrary to section 282 of the Penal Code, Cap 17.
Particulars of Offence
TOMASI VOSALEVU and others on the 30th day of May 2000 at Muaniweni, Naitasiri in the Central Division, stole dalo and cassava of value, the property of CHANDRIKA PRASAD.
The charges were filed in May 2002 and the trial proceeded on various dates between June 2002 and November 2002. The judgment was delivered on 4th of February 2003.
The grounds of appeal are as follows:
(a) The learned Magistrate erred in law and in fact when he misunderstood and wrongly applied the law in relation to the test for identification.
(b) The learned Magistrate erred in law and in fact when he failed to understand and directed himself correctly about the significance of direct evidence of injuries and photographs and wrongly insisted upon medical reports as opposed to the direct evidence of witnesses.
(c) The learned Magistrate erred in law by making findings as to credit on the basis of unsworn information from a person who was never a witness at the trial.
(d) The learned Magistrate erred in law by making findings on issues of credibility on the basis of evidence led in another case, a matter that was never disclosed at the outset of the trial.
(e) The learned Magistrate erred in law when he misunderstood and misapplied the taking of a view of the locus in quo by using it as an opportunity for the taking of unsworn statements from persons who were not witnesses in the case.
(f) The learned Magistrate displayed such an inadequate grasp of the basic law relating to the issues in this case as to make the verdict unsafe and unsatisfactory in all material respects.
Although there is no specific ground of appeal alleging bias, and therefore a nullity of proceedings, in arguing grounds (c), (d) and (e), State counsel submitted that the proceedings were so flawed that any reasonable bystander would suspect or believe that the Magistrate was biased. It appears to me, therefore that the question of suspected bias should be dealt with first, because if that submission succeeds, then there was no trial and the question of sufficiency of evidence is relevant only to the appearance of bias in the way the trial was conducted. I will therefore address the question of whether there was a trial at all, because the answer may determine the outcome of this appeal.
The trial
The evidence at the trial was quite simple. Chandrika Prasad, a farmer of Muaniweni was a third-generation farmer who farmed dalo, cassava and vegetables. He also kept cattle. On the 19th of May 2000 he came home from pigeon- shooting at 6pm when he saw the house of Diwarkar Prasad (the person named on counts 1, 3, 4, 5, 6 and 7) being stoned. It was dark and he saw 20-25 people there. He recognised the 2nd Respondent, one of his neighbours. He heard Diwarkar Prasad calling for help and his children crying. He could not go to help so he watched. Later, after all the Fijian people had gone away, he went to Diwarkar Prasad’s aid. He saw sugar and tea scattered and saw that tins of fish had been taken. Glass was broken and his wife, mother-in-law and children were weeping. One of his sons was injured.
The following Sunday he saw people uprooting his dalo. He could only recognise the 2nd Respondent, because the others had cloth covering their faces. The men loaded the dalo into a police van. He also saw them taking his dead cow away although he did not see who killed it.
He was cross-examined by the 2nd, 7th, 8th and 9th accused. He said he had seen the 2nd Respondent inside Diwarkar’s house on the night of the robbery, that there was light inside the house. He said that he had not seen anyone else other than the 2nd accused taking the cow away.
PW2 was Hari Diwarkar Prasad. He gave evidence that he was a farmer at Muaniweni and also ran a small shop. He knew most of the people in the village and went to school with them. They worked on his farm.
On May 19th 2000, on the day of the coup he returned home from the market at 12.30pm. He saw Indian women running crying, Fijian youths carrying stones, some tying pieces of cloth over their faces. A group of people surrounded his house. Some people warned him to watch out as they would be back at night. They went away. After 6pm the group came back. He saw the 1st Respondent and the 2nd Respondent. The latter struck him with a garden fork on his chest. They broke the grill door and the 1st Respondent asked for money. The 4th Respondent then joined the others. In the meantime people were stoning the house outside. The 2nd and 4th Respondents dragged him and the 1st Respondent stamped on his private parts. One of Diwarkar’s sons came to his father and the 1st Respondent picked him up and threw him away. The boy landed on the sink and received a cut on his forehead. Other people were in the house and someone was playing with the electric switch. Diwarkar Prasad saw the 5th, 9th and 3rd Respondents. The 5th Respondent threw tomato sauce at the fluorescent light. Diwarkar Prasad tried to hide behind the refrigerator but the 1st Respondent pulled him out. The 4th Respondent punched him. After 20-30 minutes of this, the men started to empty the refrigerator and took the goods from the shop. Someone called Pilu went to the generator and another person used bamboo to break the fluorescent lights. It became dark. They moved out.
Diwarkar Prasad said he was injured on the mouth, lips, teeth, and jaw. His family members were crying. His house looked, he said, like a graveyard. It was full of stones. Chandrika Prasad (PW1) and his son came to help. Stolen were video deck, stereo, shop goods, frozen food, money, plates, dishes and washing machines.
On the following Sunday he saw a red van Reg. No. DO362, come to the settlement and go to Chandrika Prasad’s house. He saw Vosalevu (either the 4th or the 6th Respondent) with the group around the van. Some people chased a bull and killed it in a dalo patch. He saw the 4th and the 6th Respondents there. The bullock was lifted into the van with sacks of dalo. PW1 was talking to the 6th Respondent as it happened. There was a gun in the vehicle.
PW2 had made a complaint to the police about these events but was told that there was no transport. He then moved his family to Verata.
On the 28th of May he saw the same vehicle again with the 6th Respondent. He and others, uprooted dalo from Chandrika Prasad’s farm. The 4th Respondent was also there. A cow was slaughtered. The 6th Respondent was giving the instructions. He also cut the cow’s leg rendering it helpless. They then slaughtered it and loaded into the truck. PW2 described the truck as a police truck.
At this point in the evidence, the learned Magistrate with the consent of the parties, visited the scene. There is no record of what occurred at the scene other than the references to the scene visit in the judgment. PW2’s evidence was then intercepted with the evidence of PW3 because he had to attend a funeral.
PW3 was James Ishwar Chand, a bus driver and resident of Muaniweni. On the 19th of May 2000, he came home at 4.30pm to find his dairy shop broken into. There was nothing inside the shop left. Previously it had been full of groceries.
On the 29th of May he saw a twin cab and a police truck parked near his farm. He saw people chasing his cows and saw them slaughter two cows. One cow was Chandrika Prasad’s. The cows were loaded onto the police truck which drove off.
The next witness was a driver in the Police Force. He was approached by a senior police officer and told that the Commissioner of Police had instructed him to drive to Muaniweni to get food. He was also told to go to Parliament to “pick some boys from there.” He picked up 8 boys and drove to Muaniweni. At the school he met the 6th Respondent. He told the witness to load a cow and some dalo into the van. He did so. He passed the school and saw some Fijian boys killing two cows. These cows were loaded into a second vehicle.
He then drove to Naqali and then to Parliament with 4 or 5 boys and the 6th Respondent. He delivered the food and cows there and washed the vehicle.
Under cross-examination apparently by the 6th Respondent, the witness said that PW1 had agreed to the pulling of the dalo.
PW2 was then cross-examined by the Respondents. It appeared that the Respondents all denied being at the scene except for the 5th Respondent who appears to have admitted entering the house at page 43 of the record. It was put to the witness that he could not have seen the dalo and cows being loaded because he was in a 7 foot drain but he said on several occasions that he was not in a 7 foot drain, the drain he was standing near was only 2 or 3 feet deep.
A defence witness Timoci Dakamovi then gave evidence. He is Turaga-ni-koro of Gusuisavu Village. He said that he was in his village on the 19th of May 2000. On the 22nd of May PW2 came to him to help him take his family to Verata. He had no injuries on him but he asked for Mr. Dakamovi’s protection. He later denied this in cross-examination and re-examination.
The prosecution then called a photographer who worked for the Human Rights Commission and who had taken photographs of Hari Chand on 7th February 2001. The photograph in the court record shows injuries.
Hari Chand was the next witness. He is PW2’s brother. He gave evidence that on May 19th, 2000 he was helping his brother to secure the house after receiving threats during the day when he heard the sound of a stone hitting the gas cylinder. He then saw the 2nd Respondent who assaulted him. He also identified the 3rd, 4th, 5th and 7th Respondents as taking part in the attack on the family. His account corroborated that of PW2. He said he was punched by the 2nd Respondent and attacked by a garden fork held by the 2nd Respondent. The witness later had himself photographed by the Human Rights Commission.
He also saw the 6th Respondent with the red van which came to pick up the dalo and the cows. There were 3 or 4 guns inside the vans and George Speight was also in the van. He saw the 6th Respondent killing PW1’s cow and chopping it with a cane knife. Under cross-examination he said he did not go to a doctor until the 25th of May when he was taken by police officers. Before that he did not want to go to town and the road was blocked by “Fijian people.”
PW5 was Sgt. Viliame Caqusau who interviewed the 6th Respondent. PW6 was DC Elia who interviewed the 1st and 2nd Respondent, PW7 who interviewed the 1st Respondent.
In his interview the 6th Respondent said he never went to Muaniweni on Sunday the 28th of May 2000, and that he did not know Chandrika Prasad. He then changed his story by saying that he took the dalo and cassava with PW1’s permission, that the cattle belonged to elders from Deladamanu, that only one cow was taken, that they took the dalo, cassava and cattle to Parliament.
The 2nd Respondent said under caution that on the 29th of May 2000 he met other men as he went towards the Naqali Police Post. He met the 6th Respondent in a police vehicle. The 6th Respondent told him to pull dalo from Satend’s farm and they did so. He said Satend had agreed. The dalo and cattle were then taken to Parliament House. The police driver and the 6th Respondent sat in front. The 2nd Respondent was not questioned about the alleged incident in Hari Diwarkar’s house.
The 1st Respondent told the police a similar account of the events of the 29th of May 2000.
The Respondents were then put to their defence. It is not clear whether the evidence on page 73 of the record is that of the 1st Respondent, but it reads as cross-examination and appears to provide an alibi for one of the Respondents. Unfortunately it is not clear whose evidence is recorded.
However one Abdul Tahir Lateef gave evidence for one of the respondents and appears to have volunteered himself only to talk of his bad relationship with PW2. His evidence was withdrawn. However he later gave evidence for another respondent.
One Akeai Musua Ilisevaseva gave evidence to say that the 1st accused was at home on 19th May. However he himself was at the house of Lepani, drinking grog from 5.30pm and could not say where the 2nd Respondent was after that time.
The 2nd Respondent gave sworn evidence. He said he was at home on the 19th of May and slept at home all night. On the 29th of May he helped to uproot Satend’s dalo with Satend’s permission.
Lavinia Laliqavoka gave evidence that the 2nd Respondent was at home on the night of the 19th of May. Under cross-examination however, she said she saw the 2nd Respondent go to work with a knife and it appears, a digging fork.
The court then heard the evidence of the 1st Respondent. He also said he slept through the night on the 19th of May and knew nothing about the attack on Diwarkar Prasad’s family.
Under cross-examination he said he had lived at Muaniweni all his life, knew Hari Diwarkar and said that he had lied in court.
Luisa Vakaloloma then gave evidence that she was the 1st Respondent’s daughter and that the 1st Respondent had been at home asleep that night.
Simioni Dreli then gave evidence that on 28th May 2000 they had a church service and that one of the Respondents had been drinking yaqona until midnight. It appears that the witness was referring to the 2nd Respondent. Eroni Toroki gave evidence, also for the 2nd Respondent. He said that he visited PW2 on 21st May 2000 to settle his debt. They had yaqona together. The witness asked what had happened to PW2’s louvres and was told that someone had thrown a stone at them. He said that PW2 had no injuries and was cheerful. He said he had known Diwarkar for 11 years and he was a “good actor and trouble-maker.” It appears that this evidence of character was led without comment or complaint.
On the 29th of May he boarded the police van driven by a police officer and saw a “piece of beef in the vehicle, some vegetable, coconut and taro.” He saw the 1st, 2nd and 6th Respondents help to load a cow into the vehicle. He also went to Parliament in the van and helped to unload the cattle.
The 3rd Respondent then gave evidence. He said that from 5.30pm to midnight he was drinking yaqona at the house of one Rupeni. Under cross-examination he said he knew PW2 and PW5 well for 8 years.
The 4th Respondent said that on the 19th of May 2000, he had been at home from 5.30pm and went to sleep at 12 midnight. He said he had been drinking yaqona with his father, and his sister’s children. The 4th Respondent called Akeai Ilisevaseva who said that he had been drinking yaqona with the 4th Respondent until midnight. Malakai Nairobo gave evidence that he is a church elder. He said that on the 28th of May 2000 from 5pm to 12 midnight the 4th Respondent had been with him.
The 5th Respondent gave evidence that on the 19th of May he had been drinking yaqona all night with one Luisa, one Cereki and one Suliana. On the 29th of May he was in a punt on the river and knew nothing of the dalo picking and cow-slaughtering. He agreed that he did not tell the police this on the 17th of April 2002. He said that the police had forced him to make a statement although his father was present during the interview. Later he said he did not tell the police about the yaqona session because he had forgotten about it.
The witness Toroki gave evidence again, this time for the 6th Respondent. His evidence is missing in my copy of the record. Similarly Simione Dreli gave evidence again, to say that the 7th Respondent was at church on the 19th of May and was drinking yaqona in the night. He was also at a village meeting on the 29th of May 2000 and said that all Respondents except for the 2nd Respondent and the 6th Respondent were in church on the 29th of May.
The 8th Respondent gave evidence that on the 19th of May 2000 he carried a cow onto a boat to ferry it to the Landing opposite Deladamanu. He saw the 6th Respondent and others arrive in a police vehicle and the cow was loaded into it. He agreed that he had killed the cow himself and that his statement to the police was false in parts. He said the cow belonged to his uncle Samuela Turaganivalu.
Samuela Turaganivalu gave evidence that he had asked the 8th Respondent to kill one of his cows because the 6th Respondent had requested a cow to be taken to Parliament. The 8th Respondent had followed his instructions. Under cross-examination he agreed that he had also got into the police vehicle.
The 6th Respondent gave evidence that he was in Parliament from a week after the coup. On the 29th of May he returned to Muaniweni and asked Samu for a cow. The 6th Respondent had already uprooted his own dalo. When the police vehicle arrived the dalo was loaded into the vehicle. He then asked PW1 for his dalo and PW1 agree. PW1’s son uprooted the dalo. He said he had a good relationship with PW1. He also asked Satend for dalo and Satend agreed. They then went to a mango tree where PW2 said he had been hiding. Another cow was being loaded into the vehicle. The 6th Respondent did not know who had killed it. Under cross-examination he denied carrying a cane knife on that day and said there was no gun in the vehicle.
Abdul Tahir Lateef was called again. He said he was PW1’s neighbour. He said that on the 19th of May 2000, PW1, PW2 and he were drinking yaqona together at PW2’s shop. On the 27th of May PW2 left his house and Abdul Tahir kept his key with him until PW2 dismantled his house in May 2001. He said that PW2 was not in Muaniweni on the 29th of May. He said he saw the 6th Respondent loading dalo but that none of PW2’s cows were taken.
The 9th Respondent gave evidence that on the 29th of May he was on his farm and did not know about the charges. He said he knew PW2 well. He denied stealing a cow from under a mango tree.
Judgment was delivered on the 4th of February 2003. After reviewing the evidence, the learned Magistrate said that the incident inside PW2’s house occurred when it was dark and there were no lights. He said that evidence of a quick glimpse in a dark room is weak, that it would be impossible to see anyone in the dark, that there had been no identification parade, that it was unsafe to convict on dock identification two years after the event, that there were no medical reports on the witnesses, that there was no theft because there were no items missing, that there was no independent evidence of the items stolen, the damage done and the injuries sustained, that the photograph tendered by the Human Rights Commission could not “prove that the injuries were caused by the accused on 19th May 2000”, that Tomasi Dakunivosa had seen no injury on PW2 when he met him on the 22nd of May, that Eroni Toroki said PW2 was an “actor and troublemaker”, that Abdul Tahir had said that he did not see the Respondents at Muaniweni on the 19th of May and that PW2 had taken his belongings to Verata, and had gone away before the 29th of May, and that he found that there was doubt as to whether the offence was committed and that the Respondents committed it.
In respect of the alternative counts he said there were no injuries proven, that the photograph did not implicate the 2nd Respondent, and that there was no direct evidence against the 1st accused. The judgment then reads:
“This is the second time Diwarkar has given evidence in court and it is surprising as to why no medical certificate is produced now the issue before the Court is whether the offence was committed and committed by the accused. The Court is again in doubt as to whether the complainant were wounded.”
He similarly found that the prosecution had not proven its case on Count 5, it appears on the basis of the 6th Respondent’s evidence. He appears to have accepted the evidence of Abdul Tahir who said that PW2 had left Muaniweni on the 27th of May and had never returned. In considering PW2’s identification evidence of the 6 Respondents, he said that PW2 had said he was standing in a 7 foot drain and also that he had been hiding behind a mango tree. He referred to the scene visit and said that he had heard from the police officer in charge of the Police Post where the house of PW1 was. The judgment reads –
“The Police Officer informed us that that was the house alleged to have been burnt in the May 19th crisis. The house was not burnt but had been vacated by Chandrika Prasad. Then we were taken to Diwarkar’s house. The Police Officer informed us that Diwarkar had demolished his house in May 2001 leaving only the concrete foundation. (This information is confirmed by Tahir DW2 in his evidence in Court). From there we were led to the mango tree and the 7 feet drain where Diwarkar was alleged to have been hiding. There was no 7 feet drain but only a one foot drain covered with weed.
Having visited the scene and in view of the wide media coverage and in particular continuous TV1 coverage before and after the trial, it appears that there is fabricating of evidence by the complainant. I say this too, partly because I have dealt with the same offence of Robbery with Violence where one accused was acquitted. Now the complainant is alleging another five accused to have committed the same offence ...... This in my view creates some doubt as to whether the offence was really committed and committed by the five accused.”
The learned Magistrate found that only 3 Respondents had been interviewed under caution and that the Constitutional rights of the other Respondents had thereby been breached. All Respondents were acquitted on all counts.
Grounds c, d, e and f
The Appellant says that the defects in the trial showed a pre-disposition to acquit on the part of the learned Magistrate and that the entire trial was a nullity. This of course raises the question of apprehended bias.
The test for bias is whether a reasonable and informed observer would consider there was a real danger of bias or whether a reasonable and informed observer would reasonably apprehend or suspect bias (Amina Koya v. The State Crim. App. CAV0002.1997).
There seems to be no doubt at all that the learned magistrate in this case had heard an earlier case in respect of the same complainant and the same incident at Muaniweni, the result of which was that he had acquitted another accused person on the charge of Robbery with Violence. This information was obviously not disclosed to the parties during this trial and the question of waiver of the pre-disposition does not arise.
Of course magistrates and judges are often required to sit in cases where they have some knowledge of earlier cases against the same accused, or where they have previously tried the accused. This is unremarkable, because judges and magistrates are expected to try cases on the evidence before them, and to disregard anything they may have heard or learnt in other cases. Thus in Atil Kumar v. The State Crim. App. 101, 102, 103 and 104 of 1999L, Townsley J held that knowledge of previous convictions during a bail application did not disqualify the presiding magistrate from hearing the trial, and in Anthony Frederick Stephens v. A-G Civil Action 34 of 1989, Scott J held that the fact that, as counsel, he had appeared to oppose bail for the Applicant 12 years previously, did not lay sufficient grounds for apprehended bias in a civil matter. In the latter case, Scott J considered relevant, the fact that he had never had to “examine, question or doubt the Plaintiff’s credibility as a witness.” In Reg v. Resident Magistrate ex parte Taniela Veitata 23 FLR 192, a magistrate who had heard a trade disputes prosecution against a defendant and found him guilty was asked to disqualify himself from hearing another trial under the Trade Disputes Act against the same defendant. Mishra ACJ held on appeal that there was no suggestion that the magistrate was hostile or appeared to be hostile towards the defendant and that prior knowledge of the defendant’s character and antecedents did not disqualify the bench. However in Amina Koya (supra) the Supreme Court held that in assessing whether or not there was a real danger, or reasonable apprehension of bias, the way the proceedings had been conducted was crucial. The Court said at page 14:
“Here we are concerned with a trial which has actually taken place and with the question whether there has been a miscarriage of justice on the ground that there was a real danger of bias or a reasonable apprehension or suspicion of bias. In the determination of that ground, the record of the trial, showing how it was conducted by the trial judge, is of fundamental importance. Generally speaking, if the record were to demonstrate that a judge sitting with a jury conducted a trial impeccably, it would be difficult to establish that there was a real danger that the trial was vitiated by apparent bias or that a fair-minded observer, knowing the facts, would reasonably apprehend or suspect that such was the case.”
I therefore turn to the way the case was conducted, knowing as we now do, that the learned Magistrate had earlier determined, in a case involving PW2, that there was no offence of robbery with violence committed on him on the 19th of May 2000, by another defendant. In considering the court record, I take into account the very real difficulties encountered by any tribunal when deciding on a case months after charges were laid and 3 years after the incident from which the charges arose, and after a fragmented trial due to a number of part-hearing dates.
There are a number of inaccuracies of fact that I consider may have arisen from that delay and fragmentation. For instance, the learned Magistrate called the identification of the Respondents a “fleeting-glance” type, and said that the incident on Count 1 occurred in the dark. He had no doubt forgotten that the evidence from both prosecution and defence witnesses, was that the witnesses PW1, PW2 and PW6 had known all the Respondents since they were children attending the same village school and that the evidence was that the lights were on in PW2’s house until one “Pilu” switched off the generator. He may also have forgotten that the incident according to PW2 took place over a 20 – 30 minute interval.
However, central to his decision to acquit on all counts, was his findings on the credibility of PW2. He based his findings on the following considerations:
A perusal of the court record shows that some of these findings were not based on the evidence led during the trial. Firstly, as I have already said, the identification was done at close quarters over a 20 – 30 minutes period in a lit room, with an occasionally flickering light, of people the witness had known well all his life. Arguably this was a case not of identification but one of credibility. Further the evidence of PW2 was supported by PW1 and PW6 and by the admission of one of the Respondents (Respondent 5). This was not referred to by the learned Magistrate at all and it appears that he misapplied the Turnbull principles.
Secondly, there is no record of the visit to the scene other than his references in his judgment. A view of the locus in quo must be properly conducted, accurately recorded, and there must be no interference by non-parties to the case. Yet in this case the learned Magistrate heard from an unnamed officer from the Police Post, who showed the learned Magistrate parts of the scene which appear to have no relevance to the case, and a drain which may or may not have been relevant. The significance of a burnt house referred to in some other forum was obviously something the learned Magistrate accepted. But it is of no relevance to this case.
Thirdly, the learned Magistrate had on one occasion during the trial refused to hear the evidence of Abdul Tahir Lateef because he wanted to give evidence of his bad relationship with PW2. Yet on assessing the credibility of PW2 in his judgment, he failed to take into account his earlier finding of a bad relationship which might have coloured his conclusion on the credibility of Abdul Tahir Lateef.
Further the evidence of the defence witness Timoci Dakaimovi was that PW2 returned to Muaniweni on the 22nd of May after dropping his wife and child at Verata. The learned Magistrate appears to have disregarded this evidence in his judgment.
Fourthly, although the learned Magistrate put a great deal of weight on the lack of medical evidence showing injuries on PW2 and PW6, the sustaining of injuries is not an ingredient of an offence of robbery with violence. It is only a matter relevant to credibility, and ultimately, after conviction, to sentence.
Fifthly, he referred to media reports of the incident at Muaniweni in concluding that PW2 was not to be believed. Judges and magistrates usually direct themselves (and the assessors) to disregard media reports, because reports are usually based on information given by “source” and interpreted by a journalist. The reports are hearsay and their accuracy has not been tested by cross-examination. Media reports are not evidence unless they have been properly tendered in court. In this case it is not clear what reports (or how many) the learned Magistrate had relied on to conclude that the complainant was “fabricating” his evidence. However his finding is demonstrably an error of law.
Sixthly, he obviously relied on an earlier finding that PW2 had lied in respect of the same incident. If the learned Magistrate had already concluded, in an earlier case, that the incident at Muaniweni on the 19th of May, had never occurred, then there was a reasonable apprehension that he would come to the same conclusion in this case. After all, the evidence was likely to be identical except that more people were implicated. It might have been wiser to request the Chief Magistrate to transfer the case to another Magistrate. As I have said, although prior knowledge of an accused or complainant does not automatically lead to disqualification there are cases, where the issues, facts and witnesses are identical, where it might be a wise course of action to request another court for trial. In this case we know that the learned Magistrate actually relied on his earlier findings to make conclusions in this case. An informed observer might well have asked whether the entire prosecution was an exercise in futility in the circumstances.
The last consideration on which the learned Magistrate relied to acquit, was the defence alibis. In the light of my ultimate finding in this case, I consider that the less I say about the defence case, the better. I do comment however that there were aspects of the defence case that the learned Magistrate failed to refer to in concluding that he accepted that evidence. There was no attempt at analysis of the credibility of the defence witness.
I find that the learned Magistrate erred in a number of fundamental matters in the course of his judgment which give rise to a reasonable suspicion that he had a pre-disposition to reject the evidence of the prosecution witnesses. I make this finding on the basis of the issues I have outlined.
The prosecution’s appeal in respect of Grounds (c), (d) and (e) succeeds.
Result
What is the result of a trial conducted by a tribunal with a disposition? An order for retrial is prohibited after acquittal by virtue of section 319(1)(b) of the Criminal Procedure Code. That section provides:
“(1) At the hearing of an appeal, the Supreme Court shall hear the appellant or his barrister and solicitor, if he appears, and the respondent or his barrister and solicitor, if he appears, and the Director of Public prosecutions of his representative, if he appears, and the Supreme Court may thereupon confirm, reverse or vary the decision of the magistrate’s court, or may remit the matter with the opinion of the Supreme Court thereon to the magistrate’s court, or may order a new trial, or may order trial by a court of competent jurisdiction, or may make such other order in the matter as to it may seem just, and may by such order exercise any power which the magistrate’s court might have exercised:
Provided that –
(b) the Supreme Court shall not order a new trial in any appeal against an order of acquittal.”
Section 319 does not however prohibit an order for a trial de novo. Such a common law power was specifically found by the House of Lords in Crane v. Public Prosecutor (1921) 2 AC 299 a case of a verdict of guilty and sentence passed in a trial in which two accused persons who had been separately indicted had been jointly tried. Their Lordships clearly distinguished between an order for retrial, and the venire de novo. Tracing the history of the venire de novo, Lord Atkinson (pp 322-323) found that the writ was based on the old Writ of Error, later abolished by the Criminal Appeal Act 1907. However he said that the Court had powers, under the 1907 Act to make “such other order as justice may require” which preserved the power to order a trial de novo. State counsel points out correctly that the same provisions can be found in section 319 of the Criminal Procedure Code.
Indeed, the Fiji courts have ordered trials de novo in a number of cases. A failure to ask the accused what court he wished to be tried in was held by Knox-Mawer PJ in Faiz Mohammed v. Reg 9 FLR 98, to be an error which rendered the trial a nullity. The Fiji Court of Appeal took the same view in Kitione Gaunavinaka v. State Crim. App. 14/1994S. Pathik J ordered a trial de novo in State v. Waisale Rokotuiwai Crim. Case 9/95 when the assessors erroneously heard evidence of a disputed confession in the course of a trial.
In Emberson v. The State CA AAU00020.1996 the accused had not been given his right to choose what court to be tried in. The Court of Appeal held that this error rendered the entire proceedings a nullity. It said:
“The problem is that if as is accepted by the State the proceedings and conviction were a nullity, and we think they were, there could not be a re-trial. The accused has never been tried. A similar situation arose in Crane v. DPP (1921) 2 AC 299. The appellant was indicted for receiving goods knowing them to have been stolen and another man was charged in a separate indictment with stealing the goods. The two prisoners were tried together and convicted. It was held by the House of Lords that the proceedings were a nullity. Lord Parmoor at page 336 said “a trial void ab initio cannot result either in acquittal or conviction."
What kind of errors render the verdict void ab initio? Evidently those which have the effect of robbing the court of jurisdiction so that the trial itself is not a trial. A failure to put the election of court to the accused is one example (Faiz Mohammed v. Reg, Emberson v. The State (supra)), a failure to hold a preliminary inquiry in accordance with the Criminal Procedure Code is another (Kitione Gaunavinaka v. The State (supra).)
In State v. Ratu Ovini Bokini Crim. App. HAM0032 of 1998, the High Court found that committal proceedings in the Magistrates’ Court had been conducted in a way which gave rise to a reasonable suspicion of bias, and a hearing de novo was ordered before another Magistrate. This finding was upheld by the Court of Appeal. In State v. Bhawani Prasad Crim. App. No. HAA0056 of 2002, I made a similar finding after a trial and acquittal of a police prosecutor in the Suva Magistrates’ Court. I adopted the following statement made by Kirby J in Galea v. Galea (1990) 19 NSWLR 263, 278:
“From the first to last, from beginning to end, the appearance of an impartial and unprejudiced mind on the part of the judicial officer is of the essence of the system of justice. If at any point, there is a loss, in fact or appearance, of that impartiality, the trial will thereafter miscarry. The litigant who can establish such a miscarriage has not had a trial according to law.”
In this case, the pre-disposition of the learned Magistrate to acquit the Respondents because of a finding he had made in the earlier case in respect of the same incident of the 19th of May 2000, which pre-disposition manifested itself in a number of erroneous findings expressed in his judgment, had the effect of nullifying the entire trial.
I therefore quash the acquittals and order a trial de novo before another magistrate. It is not necessary, nor indeed desirable to canvass the other grounds of appeal because these are live issues to be considered by the new Magistrate.
Nazhat Shameem
JUDGE
At Suva
5th March 2004
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