Yarolevu v The State [2005] FJHC 168; HAA0134.2004 (19 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0134 OF 2004
CRIMINAL APPEAL CASE NO.: HAA0017 OF 2005

BETWEEN:

SULIASI YAROLEVU
AISEA TURUVA
Appellants

AND:

STATE
Respondent

Counsel: Appellants – In Person
Mr. W. Kuruisaqila – for State

Date of Hearing: 22nd August, 2005
Date of Decision: 19th September, 2005

APPEAL DECISION

Background

These two appellants have filed separate appeals against conviction and sentence. As the matters are closely related on both cases the appeals as a matter of convenience have been heard together and this one decision applies to both.

Each appellant was jointly charged with one other (Aiyaz Ali) as a result of a car heist and violent robbery with:

1. An offence of robbery with violence, contrary to Section 293(1)(a) of the Penal Code
   

• An offence of an unlawful use of a motor vehicle, contrary to Section 292 of the Penal Code.
  

Mr. Yarolevu with a resisting arrest charge, contrary to Section 247(b) of the Penal Code and Mr. Turuva with both resisting arrest and assaulting a police officer in the execution of his duty, contrary to Section 247(b) of the Penal Code.

Briefly the facts alleged are that at about 3.00am on the 18th of January 2004 all three defendants with others hired a van. They later overpowered the driver and took the van to Ba. At Ba they committed a violent robbery of the complainant and his wife who were asleep in their home.

It is alleged that they took property valued at $10,330.22. It was further alleged that during the course of the robbery they tied up the complainant and his wife and then made good their escape in the family motor vehicle CM795. The resisting and police officer assault charges happened as a result of the various arrests made against each accused.

The Appeal

This is in effect a single issue appeal concerned with the learned Magistrate’s decision to proceed with a defended hearing despite an adjournment application made by Mr. Yarolevu but supported by Mr. Turuva and their then co-accused Mr. Ali.

The matter came on for hearing relatively quickly. The offence happened on the 18th of January. The accused were brought before the Magistrate on the 20th of June and the 3rd of February. A hearing was set for the 13th of February 2004.

On the early appearances all accused firstly applied for bail, sought medical attention and advised the court they wanted to instruct a lawyer.

When they appeared on the 13th of February 2004 Mr. Yarolevu handed to the learned presiding Magistrate a copy of a note written on green paper with no letterhead.

Mr. Yarolevu said the note was from the western representative for the Legal Aid Commission. The note indicated that the Legal Aid Commission had received applications for legal aid and was in the process of considering those on the basis of that information each of the accused sought an adjournment of the hearing.

The learned Magistrate gave a ruling on this and other constitutional matters at pages 4,5 & 6 of the record. The learned Magistrate faced several issues including:

1. The accused right of election for trial in the High Court.

2. The exercise of that right immediately before a hearing in the summary jurisdiction.

3. The right to have a lawyer.

The ruling deals with the right of election comprehensively and I agree with the observations by the learned Magistrate that having made an election the accused were not really in a position to offer any special reasons why that election should be vacated and a hearing of the case allocated in the High Court. However, in the midst of what was obviously a busy list and in the course of an extempore ruling the Judge overlooked the quite separate application that was made concerning the right to a lawyer and the related application for adjournment of these proceedings to allow the Legal Aid Commission to process the applications for legal assistance that had been made by each of the accused.

The fact that this busy learned Magistrate overlooked completing her ruling in dealing with this issue is an understandable mistake but a mistake nonetheless that supports the appeal against conviction.

Counsel for the State has responsibly considered the note written on the green piece of paper with no letterhead. He has independently confirmed that the note was in fact written by the then representative of the Legal Aid Commission in the west, Ms Natalie Williamson (marked for convenience as Exhibit No. 1).

As a result of that enquiry State’s counsel quite properly in my view conceded that the learned Magistrate had mistakenly overlooked the application for adjournment in her ruling. He further conceded that the note was legitimate and that in fact each of the accused had made application for legal aid that was on the 13th of February 2004 being processed but had not yet been completed so that the accused did not know whether or not they had the benefit of a lawyer.

In the light of those concessions State’s counsel is driven to the final concession that he must act responsibly as a prosecutor and concede the appeal.

In doing so I accept and endorse his comment that it was unfortunate this note was written on a simple piece of green paper without letterhead and not tendered to the court by counsel from Legal Aid. However, having received this note it was at least incumbent on the learned Magistrate to adjourn and make enquiries about its authenticity and then make a specific ruling on the adjournment application.

The impact of her failure to do so is simply that each of the accused elected to remain mute during the course of the trial. They had been in their view denied a legitimate right to counsel guaranteed to them by the constitution. It is therefore a little wonder that they were eventually convicted.

In these circumstances I find that the accused were denied the right to fully exercise the constitutional guarantee for both legal representation and due process of an application for legal aid. That finding endorsed by the State’s concession leads me to granting these appeals.

Conclusion

I grant both appeals. I quash the convictions. I order a re-hearing of the informations before a new Magistrate.

Gerard Winter
JUDGE

At Suva
19th September, 2005