Danford v The State [2005] FJHC 196; HAA0032X.2005S (22 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0032 of 2005S

Between:

AMINIASI DANFORD
Appellant

And:

THE STATE
Respondent

Hearing: 15th July 2005
Judgment: 22nd July 2005

Counsel: Ms B. Malimali for Appellant
Mr. P. Bulamainaivalu for State

JUDGMENT

This is an appeal against conviction and sentence. The Appellant was charged on 7 counts of robbery with violence and one count of unlawful use of motor vehicle, on the 3rd of December 2003. He pleaded not guilty. Bail was initially refused, but was granted on the 14th of January 2004. He was told to instruct counsel. He was, however remanded in custody by another magistrate in another case. The trial proceeded on the 9th of February 2004. The Appellant asked for time to instruct counsel but the court declined the application and proceeded to trial.

Witnesses on each of the 7 counts gave evidence of two persons committing robbery in their premises. The robberies were accompanied by acts of violence, or of the threat of violence. None of the complainants was able to identify the robbers.

PW4 was Police Constable Jone S of Navua Police Station. He gave evidence that he interviewed the Appellant on the 25th of May 2003 in relation to Count 3. The Appellant did not cross-examine him. He was charged by Police Constable Sitiveni Druma. He did not cross-examine this witness either.

PW10 was Detective Corporal Kumar. He gave evidence that he interviewed the Appellant in relation to the alleged offences on Counts 4 to 8. The interview was conducted on the 23rd and the 25th of May 2003. He also found, in a stolen vehicle DN958 (alleged to have been used by the Appellant in the robberies) a number of items of clothing, a torch and a black toilet bag. This witness was cross-examined by the Appellant. It is not clear what questions were asked but the answer is recorded as having been:

“Your statement was given voluntarily without force or threat.”

Detective Constable Jone Serevi charged the Appellant on Counts 4 to 8. The charge statement was tendered. Under cross-examination, this witness said:

“He did not make any complaints about the interview or for any other police officers at Navua Police Station.”

PW14 was Police Constable Seba Baleisuva. He gave evidence that on 18th of May 2003, he was on night patrol. At 2am he was told to assist the Navua Police on a case of a stolen vehicle. He was driving from Delainavesi towards Navua when he saw the stolen vehicle travelling towards him. It was travelling very fast. Constable Seba placed crocodile teeth on the road just past Orchid Island. The car slowed down. It was DN958. The driver of the vehicle got out of the car and fled towards a swamp. Constable Seba gave chase, but was unable to catch him. He then proceeded towards Navua and saw the same driver of the stolen vehicle standing at the bus stop at Navesi. He flagged their vehicle down, but when he saw whose vehicle it was, he ran away towards Suva. The police again gave chase but were unable to catch him.

On the 25th of May 2003, at an identification parade at Navua Police Station, Constable Seba identified the Appellant as the driver of the stolen vehicle.

PW17 was Police Constable Tuwaci Tasoqosoqo. He interviewed the Appellant on the 24th of May 2003. The interview notes were tendered. The Appellant asked no questions. Similarly, he did not cross-examine the charging officer, Constable Sitiveni Druma.

PW19 one Jo Don Maduni gave evidence that on the 7th of May 2003, he went to the “Quick Bite Shop” where he bought a telecard. He saw the Appellant there, some time in the afternoon. The relevance of his evidence to the case is unclear because there is no evidence about the exact time of the encounter. However, it is consistent with an account of the robbery by the Appellant’s co-accused, in his police interview.

The Appellant chose to make an unsworn statement. He said that he was arrested on the 23rd of May 2003, and taken, first to the Raiwaqa Police Station, and then to the Valelevu Police Station. At Valelevu Police Station, he was handcuffed to the door all night and deprived of food, drink or toilet facilities. The next morning he was taken to the Navua Police Station where he was locked up and handcuffed. When he was interviewed, he was assaulted by one Apakuki, Sitiveni and other officers. He said they also verbally abused him and had a stick inserted in his anus. During the night, he was blindfolded and taken in a police vehicle towards Suva. There, he was told that if he wished to live, he would have to confess to the alleged offences. He then confessed when he reached Navua.

The Appellant called one Josua Valili as his witness. He said that on a day and month unknown, but sometime in 2003, he committed offences of robbery with violence in Navua on some Chinese men. Under cross-examination, he said he committed the offences at Vakabalea, Navua with one Epeli Labalaba and one Penijamini Davetawalu.

The learned Magistrate then ordered that this witness be charged with robbery with violence, on Counts 4, 5, 6, 7 and 8.

The Appellant then complained to the court that he had not received a copy of his medical report. The prosecutor said he did not wish to tender it because the Appellant had given unsworn evidence. On enquiry by the court, the prosecutor then showed the court a copy of the report. The Appellant said he had received that report, but wanted another one from the Raiwaqa Health Centre dated April or May 2003. There is nothing on the record to suggest that this report existed, or was in the possession of the prosecution. Certainly, no further discussion on it is recorded.

Judgment was delivered on the 5th of May 2004. After reviewing the charges, and the evidence, the learned Magistrate appears to have relied substantially upon the evidence of the Appellant’s interviews with the police. He did however refer to the evidence of Constable Seba who had identified the Appellant as the driver of the stolen vehicle. This he said had explained why the Appellant, after his denials in his initial statement, eventually confessed to the crimes. In the confessions, the Appellant purported to confess to being the mastermind behind the series of robberies on the 18th of May. He also referred to the confessions of the Appellant’s co-accused, Ulaiasi Waqa. In that statement, the co-accused implicated the Appellant.

The learned Magistrate then found that the prosecution had proved its case beyond reasonable doubt. He said that there was no evidence that the accused persons had been ill-treated by the police. He said they lodged no complaints to the police and tendered no medical reports. He said that he could not attach much weight to their unsworn statements and referred to his conclusion, from the Appellant’s failure to attend court after being granted bail, that the Appellant “was a pathological liar, and a hopeless romanticist.”

He relied on his confession, and that of his co-accused, to convict them on each count charged. He said that “the confessions were not satisfactorily challenged by the two accused persons.” He found the Appellant guilty and convicted him. He also recommended that the DPP’s Office investigate Josua Valili in relation to the offences, with a view to charging him, or with charging him and the Appellant with perjury. On the 8th of November 2004, the Appellant was sentenced to a total of 8 years and 8 months imprisonment.

The appeal

Initially, the Appellant appealed against convictions, and sentence on several grounds, in person. However, he is now represented by the Legal Aid Commission, which filed amended grounds of appeal. They are as follows:

1. The learned Magistrate erred in law and fact when he failed to conduct a voir dire;
   
2. The learned Magistrate erred in law and fact when he failed to give himself a Turnbull Warning;
   
3. The learned Magistrate erred in law and fact when he failed to consider the evidence of the defence witness;
   
4. The learned Magistrate erred in law and fact when he failed to consider that legal representation was required for the Appellant.
   

A voire dire

The Fiji Court of Appeal in Vinod Kumar v. The State Crim. App. AAU0024 of 2000S, discussed the procedure to be followed in the Magistrates’ Courts, when a confession is challenged. In that case, the defence had challenged the admissibility of the confession made by the appellant. It asked that a voire dire be held. The prosecution objected, saying that the then Chief Justice had issued a practice direction, which effectively abolished trials within a trial in the Magistrates’ Courts. The magistrate did not give the accused an opportunity to give evidence solely on the admissibility of the confession. Nor did he rule on admissibility. The appellant was eventually convicted. His conviction was upheld by the High Court. On appeal to the Court of Appeal, the Court of Appeal quashed his conviction on the ground that the magistrate must have taken into account the challenged confession. A re-trial was ordered.

In the course of its judgment, the Court of Appeal referred, it appears with approval, to the Chief Justice’s Practice Direction, and the new recommended procedure. At page 2 of the judgment, the Court said:

“The direction went on to provide a procedure which was to be followed in cases where previously a trial within a trial might have been held. This provides that the prosecution is to call all its witnesses. After all witnesses for the prosecution have been called the defendant is to be given the opportunity to give evidence if he wishes, exclusively on the taking of the caution statements. He can then be examined and cross-examined only on matters concerning the taking of the statement. The defendant may also call witnesses to give evidence before the Court exclusively on the taking of the caution statement. This procedure contains an important safeguard for an accused person. An accused may give evidence as to the admissibility of the statement without losing the right to make an unsworn statement from the dock or to decline to give evidence in the case generally.”

It is not in dispute that this procedure was not followed in the Appellant’s case. Counsel for the Appellant says that it was not followed because the learned Magistrate did not ask the Appellant if he challenged his confessions, and she further says that the Appellant’s own failure to properly articulate his challenge was due to lack of legal representation.

State counsel says that the Appellant was given ample opportunity to instruct counsel. His failure to instruct counsel constituted a full and informed waiver of the right to counsel. He further said that at no time while the State’s witnesses were giving evidence, did the Appellant tell the court, that he had been assaulted and oppressed by the police. By leaving it to his own unsworn evidence, and by failing to cross-examine the police witnesses on the issue, he had, said counsel, “missed the boat.” He referred to the decision of Winter J in Qica Tabua Bulamaibau v. The State Crim. App. HAA0110 of 2004 which dealt with precisely this issue. In that case, the defence in the Magistrates’ Court, did not challenge the admissibility of the confession until after the prosecution had closed its case. The magistrate ruled that the application to hold a voire dire should have been made, at the latest, at the end of the prosecution case. In the circumstances the accused could not limit cross-examination on his sworn evidence, to the circumstances of his confession alone. On appeal to the High Court, Winter J found that although no formal objection to the confession had been made, the defence had cross-examined the principal prosecution witnesses on the basis that “the confession was beaten out of him.” His Lordship held that it was clear, also from the record, that the accused had alleged police violence from first call. He said, at page 5:

“In circumstances where it is clear that the prime defence is a challenge to the admissibility of a confessional statement the courts must in my view be vigilant to make sure that this option is put to an accused at the close of the prosecution case. The learned Magistrate did not take that precaution here.”

He held that the application was not brought too late, that the objection had been properly brought and that the defence should have been allowed to call evidence on the confession. He then recommended a series of practical steps to be taken to ensure that challenges to confessions are properly heard. They include a step that the defence should advise the State 14 days before trial that it would challenge the confession, and the nature of that challenge.

There is no dispute that the Vinod Kumar procedure was not followed in this case. The question is whether the learned Magistrate ought to have held an enquiry despite the Appellant’s failure to formally challenge the admissibility of the confessions.

The record shows that the Appellant did ask questions about voluntariness. That is the only reason, at page 26 of the record, Corporal Pradip Kumar is recorded as saying: “Your statements was given voluntarily without force or threat.” Further, there appears to have been some cross-examination of PW11 Constable Jone Serevi, about complaints against police at Navua. Those questions ought to have put the learned Magistrate on notice that the Appellant had some objections to the way he had been interviewed.

The Appellant was unrepresented. Whether or not he had waived his right to representation, the court needed to be vigilant to ensure that he was in no way prejudiced by lack of representation. Certainly, if he had been represented, counsel would have taken instructions on the way he had been interviewed. In the absence of counsel, the presiding judge or magistrate should have asked the accused if he has any objections to the tendering of the confessions and if he had any complaints about the way the police treated him. In the absence of such enquiry, and in the light of those questions about the interview which were asked in cross-examination, I consider that there has been a miscarriage of justice.

Further, in his judgment the learned Magistrate did not direct himself on the test for the admissibility of confessions. He appears to find that the Appellant did not prove that he had been assaulted. In fact, once the issue is raised (as it was in the unsworn evidence specifically), it is for the prosecution to prove voluntariness. It was not for the Appellant to prove that the interviews were not voluntary. In the circumstances this appeal must succeed on ground 1 of the Grounds of Appeal.

Ground 2 is not compelling. The learned Magistrate did not give himself a Turnbull identification warning in relation to PW14. This was in relation to his identification of the Appellant as the person who got out of the stolen vehicle at 2am on the 18th of May. It is correct that no Turnbull warning was given. However, the witness saw the Appellant not once but twice that night. Further, the evidence was strengthened by the identification parade. There was no real need for a Turnbull warning, which is required in cases of poor identification evidence. In any event, as State counsel correctly points out, the learned Magistrate appeared to have given little or no weight to this evidence. Instead, he convicted on the basis of the confessions. This ground of appeal is unsuccessful.

The third ground of appeal is that the learned Magistrate failed to consider the evidence of the defence witness Josua Valili. The judgment does not analyse his evidence. It merely recommends that he be investigated either for robbery or for perjury. This appeal point is well-made. If Josua Valili was telling the truth, then the Appellant’s confessions to the police were not true. It is not clear from the judgment whether the learned Magistrate believed Josua Valili’s evidence, although it appears that he put very little weight on it. Greater analysis would have been desirable. However, his decision to reject this evidence was one that he was entitled to make. This ground is unsuccessful.

The last ground of appeal is that the Appellant was unrepresented. The court record shows that he was told of his right to counsel on an initial bail application. It is evident that the Appellant was aware of this right because one of his grounds for asking for bail was that he wanted to obtain the services of a solicitor. Although he was in custody for a year prior to trial, he had ample opportunity to arrange for legal representation. Section 28 of the Constitution has not been offended in effect.

Nevertheless, I consider that he was prejudiced by lack of representation. No matter how clear the waiver of the right to counsel, the court has a duty to ensure that the defendant is not prejudiced by lack of representation. In this case, no attempts were made to ensure that the Appellant could challenge the admissibility of his confessions, or that he could obtain a copy of his medical report which (if it existed) might have supported his claim of police brutality. Certainly, if he had been represented, counsel would have made the challenge, ensured that the Appellant was explained his right to give sworn evidence on the admissibility issue alone, and obtained a copy of any relevant medical report. These steps would then have led to a possible exclusion of the confessions, which provide the basis of the Appellant’s conviction.

In the circumstances, this ground of appeal is also successful.

Result

The appeal against conviction succeeds on grounds (1) and (4). Counsel for the Appellant does not dispute that a retrial is called for. Indeed the alleged offending is serious and multiple. It warrants retrial, despite the two year lapse since the alleged commission of the offences.

A re-trial is ordered before another magistrate.

Nazhat Shameem
JUDGE

At Suva
22nd July 2005