Basa v State [2007] FJHC 44; HAM037D.2007S (1 August 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 037 of 2007

Between:

SAKIUSA BASA
Applicant

And:

THE STATE
Respondent

Hearing: 20th July 2007
Ruling: 1st August 2007

Counsel: Applicant in person
Ms P. Madanavosa for State

RULING

This is an application for leave to appeal against conviction. The Applicant appealed against his conviction on 5 counts of damaging property, escaping, resisting arrest (2 counts) and failing to furnish fingerprints. The appeal against sentences imposed was unsuccessful, but I used the revisional jurisdiction of the High Court to quash convictions for resisting arrest and failing to furnish fingerprints. The Applicant now wishes to appeal against his remaining convictions. The State opposes the application.

The charges of damaging property, escaping from lawful custody and resisting arrest were laid on the 23rd of September 2004. He was sentenced to 6 months imprisonment to be served consecutive to the 6 year term he was then serving on the 11th of May 2005. This application is now more than two years late.

The Applicant says that he is late with his appeal because he thought that he had no right of redress after his sentence appeal was dismissed. When he researched the matter in prison he found he still had a right of appeal against conviction and says there are merits in his appeal. He says that the facts did not disclose the offence, that he was never interviewed for the offence, nor formally charged and that the convictions are therefore unsafe.

The State opposes the application and filed the affidavit of PC Nacanieli Bulisea, who said that he did interview the Applicant under caution at the Korovou Prison on the 31st of August 2004, and that the Applicant had refused to answer questions and had refused to sign the record. A copy of the record is annexed to the affidavit.

In my judgment on the 16th of September 2005 (on HAA084 of 2005S) I considered the facts read by the prosecution and found that they disclosed the offence of escaping, of damaging property and of resisting arrest. The conviction of the second count of resisting arrest was quashed because a police support officer is not a "police officer" for the purposes of section 247(b) of the Penal Code and because the offence was therefore not disclosed. Furthermore the facts failed to disclose evidence of failing to furnish fingerprints and that conviction on Count 5 could not stand. I specifically found that the facts did disclose the remaining offences.

As for the interview, there is no law that requires the police to interview anyone under caution. A caution interview is an investigative option for the police and if conducted fairly, may be led in evidence to show the court what the accused said when he was taxed with the allegations. Similarly, not all accused persons are charged under the Judges Rules. Often, where the police refer a file to the DPP, or a senior officer to seek advice on whether or not charges can be laid, or indeed what charges are appropriate, there will be no charge until a charge and summons are filed in court, and served on the accused.

In this case however, the Applicant was interviewed. He remained silent. That was his right. The police could not have used the record in any trial but the Applicant’s refusal to answer questions or to sign the record, does not render the conviction unsafe. The facts disclosed the offences, and the Applicant agreed to them.

There is therefore no merit in the appeal. Nor can I accept the 2 year delay in this case as being excusable.

For these reasons, leave to appeal is refused.

Nazhat Shameem
JUDGE

At Suva
1st August 2007