Ali v The State [2005] FJHC 85; HAA0136.2004 (14 March 2005)

The appellant was charged and convicted after trial with one count of housebreaking, entering and larceny for which he was given a two-year consecutive term of imprisonment.

Several grounds were advanced on this conviction and sentence appeal. These were either abandoned, modified or not really supported by the appellant at his hearing.

The appellant was advised of his right to counsel and ability to apply for legal aid at various call-overs of the appeal and at the appeal hearing itself. He specifically waived his right to counsel and insisted on proceeding with the appeal by representing himself.

I reject this ground. The conviction relied on a confessional statement. The learned Magistrate properly weighted that statement. There was sufficient evidence contained in the confession to convict. [cf. Ex.2 p.3].

This ground was not advanced in any substantive way in the appeal hearing. There being no evidence of bias or support for this ground of appeal. I reject it.

This right to counsel will be the subject of further examination later in this decision.

For reasons which will become obvious during the course of this decision I am satisfied that although the appellant was not represented at trial he was far from undefended. He is an intelligent, articulate and thoughtful person who throughout this hearing and by the written submissions he provided at his trial demonstrated a clear appreciation of general criminal law principles, the specifics of the charge he faced, the principles of voluntariness and fairness of confessional statements and sentencing mitigation. For reasons which I will shortly detail there was no prejudice to him in his election to proceed with the trial unrepresented, therefore my conclusion is that this ground can also be rejected.

This matter was not really pursued on appeal and it amounts to a submission that the learned Magistrate relied on material other than the caution interview. I dismiss this ground of appeal.

It is clear from the record that the learned Magistrate reminded herself of the proper burden and standard and onus of proof throughout this trial. This ground is rejected.

The State submitted that the right to representation enshrined in the Constitution is a right to be informed of a right; not a right guaranteeing or facilitating legal representation.

Concerning the criticisms of the admission of the caution interview counsel submitted that there was nothing wrong in the Magistrate’s approach to either the admissibility or weight given to that caution interview. Counsel emphasized that a significant portion of the trial judgment related to a consideration of the admissibility of that interview and what weight it should be given. He submitted that I should not use my powers to substitute my view on the issue of admissibility or weight for that of the learned Magistrate.

Counsel submitted that the injuries noticed on the accused at the time of his first appearance were not caused by the police but rather in a car chase and bad accident involving the accused immediately before his arrest. That is a finding he said the learned Magistrate was entitled to make on the available evidence.

As far as representation is concerned counsel submitted that between the first call on the 20th of January 2004 and trial on the 7th of April 2004 there was plenty of time for the appellant to enlist the services of counsel for hearing or to apply for legal aid but that he did not do so. He thereby effectively waived his right to counsel.

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Although not an original ground of his appeal the appellant advanced at his hearing that there was a fundamental error in the procedure adopted by the learned Magistrate in that there is no record at his first appearance of plea.

This learned Magistrate and the accused were involved in separate proceedings called at the same time where the accused; as the learned Magistrate would not grant him an adjournment to get a lawyer; remained silent partly as a matter of protest at his lack of legal representation and partly as a tactical choice for his trial. The significance of this background being that this appellant has always been aware of his rights to counsel and his ability to apply for legal aid. Secondly it demonstrated that he is willing to stand mute in court.

The learned Magistrate’s notes do not record the process of a plea being taken in this matter.

However, the notes in relation to the first appearance on the 20th of January 2004 do indicate that the accused remained mute.

Further, the cover sheet to the criminal case indicates, in handwriting other than that of the learned Magistrate, that a plea of not guilty was made.

Further still the matter proceeded through its various calls down to a hearing date. I am prepared to infer from these facts that the accused either indicated he wanted to defend himself and proceed with a not guilty hearing or alternatively was taken to have made that plea based on his refusal to say anything at his first appearance.

In any event I find no prejudice to him as he certainly mounted a strenuous defence particularly concerning the admissibility of his statement and caution interview. I reject this ground of appeal.

The learned Magistrate’s notes do not confirm that the appellant was specifically warned of his constitutional rights and ability to apply for legal aid. However, in the related matter that is Criminal Case 133 of 2004 (that was called at the same time as these proceedings) it is clear that the appellant vigorously pursued his rights to representation.

In 133 of 2004 he acted as a “Mackenzie friend” by writing a letter on behalf of an uneducated accused Mr. Turuva where he asserts that person’s right to counsel and asks for bail so that Mr. Turuva could get a lawyer.

Similarly in Criminal Case 133/2004 which is also the subject of an appeal on largely the same grounds; the appellant at his first appearance advised the Court he wanted to be represented and sought an adjournment to enable that to happen.

Finally at his appeal in answer to a question from me the appellant conceded that he asked for legal representation in this matter but that this was denied to him.

He may have been confused about that specific request being made in the case under appeal. However, that is explicable as clearly he was strongly asserting his rights to counsel in the unrelated matter (Criminal Case 133/2004) called at the same time.

Suffice it to say in these circumstances I am prepared to find that although the record does not reflect that his right to counsel and legal aid was clearly put to him in this matter nonetheless his assertion of that right in 133/2004 would make the mere chanting of that constitutional and legal aid mantra redundant. He clearly understood his right and was at this same time in another case forcefully advocating representation and the need for an adjournment to obtain it albeit in the unrelated matter.

As to the right to counsel there has been much written about this constitutional provision. In my view, Section 28(1)(d) of the Constitution needs to be carefully read as it is subtly different in its wording and purpose to similar provisions contained in other commonwealth instruments.

“Every person charged with an offence has the right to defend himself or herself in person or to be represented, at his or her own expense, by a legal practitioner of his or her choice or, if the interests of justice so require, to be given the services of a legal practitioner under a scheme for legal aid.”

While this right is broadly comparable with rights guaranteed by article 6(3)(c) of the European Convention on Human Rights and Section 24 of the New Zealand Bill of Rights care has to be taken in its purposive interpretation as it is not an unqualified right.

Section 28(1)(d) does not guarantee that the State or Court must facilitate representation or provide the services of a legal practitioner. Rather I find that it requires notification of those rights. In a country such as Fiji with limited resources that is not surprising. In general terms I am of the view [as is the Canadian Supreme Court (cf R v Bridges [1991] SCR 190)] that these sorts of rights are only fostering the principles of adjudicative fairness. Failure to accord an accused information on a right to legal representation is but one factor that needs to be considered in analyzing whether or not this principle of adjudicative fairness has been breached and that therefore a conviction should be quashed.

I accept the precedent value and common sense of those cases that confirm an accused must be told of these rights. A failure to communicate them and the three choices they contain can at times be fatal to the conviction. It is desirable that an accused be told that he may instruct counsel of choice, defend himself or thirdly that he may make an application for legal aid which will be considered in the interests of justice. However, this giving of information does not occur in a vacuum but in each applicable set of circumstances. This accused in combination with his strong intelligence was fully aware of his rights to counsel. His clever and tactical argument that this right must be demonstrated in the record has but cleverness and tactical advantage attached to it. Otherwise the argument lacks substance.

The learned Magistrate was the person responsible for communicating these rights and should have recorded that they were communicated to this accused when he first appeared at the most meaningful time before plea was taken. However, the absence of this notation does not automatically mean that the hearing was then not fairly conducted.

I find that the effect of this non-compliance if there was indeed any, was minimal. The real issue is whether the appellant can demonstrate prejudice by the absence of counsel.

The record clearly demonstrates that the appellant was able to understand the nature of the proceedings. He certainly understood the nature of the charges his written submissions at the conclusion of the case demonstrate that. He understood the onus and burden of proof. He acquitted himself ably in cross-examination of police witnesses about their alleged assault on him. He went so far as to cause the production of prison inmates as witnesses to these alleged assaults. It was clear that he understood the voluntariness and fairness of the caution interviews was to be an issue. He was able to factually paint a supporting picture of the causation of his injuries.

In her judgment the learned Magistrate addresses the salient issues, rejects the appellant’s case on the involuntariness and unfairness of the confession and based on that confession finds him guilty.

That decision against him is necessarily prejudicial. He was, after all, found guilty. But it is not merely the finding of guilt that demonstrates prejudice. What this appellant has to demonstrate is that he was procedurally prejudiced by the absence of counsel.

It is clear from the record that the appellant had a fair hearing despite the absence of counsel. In this sense this case differs from that of the unrelated matter 133/2004. In this case the appellant elected to proceed with the hearing unrepresented. He thoroughly prepared his case and did his best at trial to present it in a convincing fashion. However, his argument did not impress the learned Magistrate and in a lengthy and well reasoned judgment she rejected his submission that the confessional statement should be accorded no weight as it was involuntary and unfair. I find this trial was fairly conducted.

I further find that between the 20th of January 2004 and the 7th of April 2004 there was sufficient time for the appellant to prepare his defence. Those two and a half months were also long enough for him to apply for legal aid or instruct a lawyer.

At his appeal the appellant emphasized that he was not allowed to call an additional witness.

He in effect said in relation to the unrelated charge 133/2004 (see page 80 of the transcript in that matter) that a police constable gave evidence that the appellant was medically examined by a doctor and nurse before any of his police interviews. He said that this evidence was critical. This medical examination is said to have taken place on the 18th of January 2004 whereas the medical report tendered in evidence in the subject appeal was dated two days later the 20th of January 2004. It was said that the difference between those two medical reports was critical to the issue of voluntariness as the earlier examination would reveal that pre-interview the appellant was uninjured.

The record does not reflect that at the time of consideration of the admissibility of the police statements this issue was raised. Further it was only obliquely raised by the appellant in the penultimate paragraph of his written submissions where he asks for the court to delay its decision until his complaint to the Police Commissioner about police brutality is concluded.

That request was quite rightly rejected by the learned Magistrate when making her findings. Although the appellant would wish that submission to be placed as high as; “the learned Magistrate didn’t allow me to call additional witnesses”; I find as a matter of fact that a request to call additional witnesses was never in fact made at the appropriate time. I note that at the conclusion of the prosecution case the appellant arranged for the calling of 2 witnesses from prison by their production in court. If this matter of the missing medical report was important then surely he would have included a request to have the examining doctor or nurse presented in court. He did not do so.

There have been numerous cases which support the principle that an accused can be convicted on his confession alone. (cf McKay v R [1936] 54 LLR 1, and Chan Wai-keung v R [1966] UKPC 25; [1967] 2 AC 160).

It may have been preferable for the learned Magistrate at the conclusion of the prosecution case and before putting the appellant to his election to have heard a voir dire on the admissibility of the confessional statement. And then, if necessary, discreetly deal with the confessional evidential weight in her final judgment.

The learned Magistrate however dealt with the issue of admissibility and weight in the same judgment. That is an understandable matter of style. However, this can sometimes lead to an inference that the issue of admissibility has not been separately identified and dealt with.

Turning to this case I find as a matter of fact that the learned Magistrate did indeed deal with admissibility. Her lengthy decision concentrates mostly on the question of voluntariness and fairness in that confession. The learned Magistrate deals with the facts, applies correct principle and has exercised her discretion in such a way that she upholds the voluntariess and fairness of the confession. The learned Magistrate has gone on from there and used that confessional evidence properly by addressing its credit worthiness and weight. Having admitted the confessional statement and given it the proper weight the learned Magistrate has then satisfied herself that the State had discharged the burden and onus of proof of proving the charge beyond reasonable doubt.

There has been no error of law in that process. There has been no mis-application of principle. I am not prepared in those circumstances to substitute my discretion for that exercised by the learned trial Magistrate at first instance. Her reasoning and decision stands.

At hearing the appellant relied on his appeal papers to advance the sentencing appeal and made no oral submissions in support of his sentencing appeal.

In evidence he criticized the sentence as manifestly excessive and in breach of the totality principle.

The victim described returning home and finding his house had been burgled. It was trashed. Property worth over $4,000.00 had been stolen. This was a serious offence.

The learned Magistrate quite properly emphasized the appellant’s spectacular history of previous convictions. He has ably demonstrated through that criminal record a complete disregard for the safety or property of others and a complete disregard for societal norms. I find that he is a professional thief and recidivist.

Repetitive, recidivist offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three of society’s needs. Firstly it might act as a deterrent to the offender and others who fall into a pattern of semi- professional crime to support themselves. Second: society is entitled to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreck havoc on the lives of law abiding citizens. Third: offenders deserve punishment that fits the circumstances of the crime.

The tariff for this type of offending has received commentary on the following cases:

Case Name	Case Reference	Sentence
Shiu Prasad v State	Cr. App. 28,29,35 of 1993	First offender, 12 months imprisonment
Manoa Laoere v State	Cr. App. 31-34, 61 of 1997	Previous offender ++4 ½ years imprisonment
James Stolz & Others v State	Cr. App. 50 of 1999	Previous offender 2 years imprisonment
Epeli Labalaba v State	Cr. App. 004 of 2001	Previous offender ++2 years imprisonment

From these decisions it is clear that a sentence of imprisonment in the range of 1 to 4 years is appropriate. The upper end of that scale being reserved for especially aggravating features of the offence or the offender. Repeat offenders can expect a sentence of at least 2 years imprisonment.

Given those circumstances the award of a 2 year term of imprisonment was of anything modest. This separate offending was a discrete act set apart from the other bank robbery offence. It deserved a separate punishment. I find the totality principle has not been breached.

High Court of Fiji

Ali v The State [2005] FJHC 85; HAA0136.2004 (14 March 2005)