Navuda v The State - judgment 1 [2005] FJHC 461; HAA0070J.2005S (30 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0070 of 2005S

Between:

LUKE NAVUDA;
JOSEVA TUKANA,
SEVANAIA DONU;
SAIMONI LOGA;
FILIPE WILIKIBAU; and
APOROSA TUITOKOVA
Appellants

And:

THE STATE
Respondent

Hearing: 16th September 2005
Judgment: 30th September 2005

Counsel: Ms B. Malimali as Duty Solicitor for Appellants
Mr. A. Rayawa for State

JUDGMENT

The Appellants who are villagers from Malawai, Gau were charged with throwing object and attempted arson for the 4^th Appellant. They appeal against sentences of 2½ years on Count 1, and 5 years imprisonment on Count 2, and against convictions on the ground that their pleas were not unequivocal.

The case was first called on the 8^th of March 2005. The charges were read and explained. The prosecution amended the second count to read a different victim and the charges were read again. The Appellants said they understood the charges and admitted them of their own free will. Facts were read out on the 15^th of April 2005. All Appellants said that they maintained their guilty pleas. The facts were that on the 1^st of January 2005 the Appellants drank homebrew and were causing trouble in the village, between 1am and 2am. They then went to the house of Keverieli Vono and threw stones at it, breaking windows and the door. The 4^th Appellant then went inside the house and set fire to the window curtain. The fire was put out by other villagers. The turaga-ni-koro then reported the matter to police. When the Appellants were interviewed by the police they said they had caused trouble because of a chiefly title dispute.

These facts were admitted by the Appellants. Only the 5^th Appellant had a previous record for shop-breaking entering and larceny in January 2002. In mitigation the Appellants expressed remorse and said they would not re-offend. The 1^st Appellant said that he committed the offence whilst drunk.

The learned Magistrate sentenced each Appellant to 2½ years on Count 1, and to 5 years imprisonment in relation to the 4^th Appellant on Count 2. They were to be served concurrently and concurrent to the sentences imposed on the other files.

The Appellants’ grounds of appeal are identical to those in HAA0067 of 2005 and HAA0073 of 2005. They are that they did not understand their pleas, that the facts did not disclose the offences, that they were subjected to police brutality and forced to plead guilty and that they were prejudiced by lack of representation.

The court record does not show that the Appellants were told of their rights to counsel. However in HAA0067 of 2005 they were so told and they waived their right. In that case, the charges were read and rights explained on the same day as this one, before the same magistrate.

The learned Magistrate made every effort to ensure that the Appellants understood the proceedings. Not only were the charges explained on the 8^th of March 2005, but they were asked to plead again on the 15^th of April 2005. The facts which were read were set out in simple terms. The Appellants said they understood them. In their mitigation they asked for forgiveness and said they would not re-offend. These matters suggest that the pleas were unequivocal. As for their complaints of police assault, these complaints only reflect on the voluntariness of the pleas if the oppression led to forced guilty pleas. However the court record shows that the charges were explained and that the pleas of guilty were maintained more than a month after they left police custody. If they were indeed brutalized by the police, there is no link between such brutality and the sentencing hearing more than a month later.

The convictions stand. I will now hear the sentencing appeal.

Nazhat Shameem
JUDGE

At Suva
30^th September 2005