Turuturuvesi v State [2008] FJHC 148; HAA039J.08 (11 July 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 039 of 2008

Between:

TOMASI TURUTURUVESI
Appellant

And:

THE STATE
Respondent

Hearing: 4th July 2008
Judgment: 11th July 2008

Counsel: Appellant in person
Mr. S. Fotofili for State

JUDGMENT

The Appellant was sentenced to a total of 4½ years imprisonment on one count of robbery with violence, one count of unlawful use of motor vehicle and one count of resisting arrest. He was charged with one Maikeli Masituvolu. The charges relate to events on the 23rd of May 2006, at Farm Road, Nasinu and were first called at the Nasinu Magistrates’ Court on the 26th of May 2006.

The trial commenced on the 13th of August 2007. The evidence was that Ravin Dutt was sitting in his 7 seater van at Shop n Save Supermarket on the 23rd of May at about 8.30am when two men sat inside his vehicle and told him to drive to Farm Road. At Farm Road, one of them pulled him out of the van, put masking tape around his mouth, hands and legs and threw him into one of the seats at the back of the van. The other man drove the vehicle. The victim identified the accused in court. At Newtown, a third man joined them, then left the van at Raiwaqa. The victim tried to get out of the van at a service station, and called for help, but the driver drove away. At the Suva Cemetery he was taken out of the van and assaulted with a wheel brace. At Wailoku, a police vehicle intercepted the van, and assisted the victim. Under cross-examination, the witness said that the 1st Accused (the Appellant) was the person who tied him up, and the 2nd accused was the person who assaulted him. He said he received injuries to his left eye as a result of the assault.

There was also evidence of Corporal 2106 Eroni who said that on the day in question, he was on mobile patrol in the Tamavua area. He received information that the vehicle EG562 was involved in a robbery. He saw the vehicle travelling towards Tamavua Village, and the mobile patrol chased the van. They caught up with the van in Wailoku and the witness confronted the driver. The driver (Accused 2) refused and reasonable force had to be used to pull him out of the vehicle. This is because the 2nd Accused was holding a kitchen knife. The Appellant was sitting behind the driver and both men were arrested and taken to the Nausori Police Station. The owner of the vehicle was freed.

The Appellant was interviewed by Sgt. Eroni Soqo. Under cross-examination, the Appellant suggested that he had been assaulted by police officers, sprayed between the eyes and beaten. These allegations were denied. The 2nd Accused also alleged assault causing a cut on the head and left arm.

Under caution the Appellant admitted the robbery of the driver. Stolen was cash of $30-40, a wallet and gold chain. The prosecution closed its case. Both accused remained silent.

There then were several adjournments to consider the admissibility of the medical report in the absence of the doctor. The report was accepted on the 4th of September 2007. The learned Magistrate adjourned for "judgment and sentencing" on 30th October 2007.

On that day no judgment was delivered. Nor were convictions entered. Instead the learned Magistrate proceeded directly to sentence, which was eventually delivered on the 19th of February 2008. Because there was no judgment, it is impossible to tell whether the learned Magistrate directed herself correctly on the identification evidence, and on the admissibility of the confession. Certainly despite the Appellant raising the issue of police assault, no trial within a trial was held.

The appeal

The State concedes the appeal against conviction and sentence, on the basis that judgment was not delivered, and there was a failure to consider the burden and standard of proof, and the law on confessions.

Section 154(1) of the Criminal Procedure Code provides:

"The judgment in every trial in any criminal court in the exercise of its original jurisdiction shall be pronounced, or the substance of such judgment shall be explained, in open court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties..."

Section 155 of the Code provides:

"(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the presiding officer of the court in English, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it:

Provided that where the accused person has admitted the truth of the charge and has been convicted, it shall be a sufficient compliance with the provisions of this subsection if the judgment contains only the finding and sentence or other final order and is signed and dated by the presiding officer at the time of pronouncing it.

(2) In the case of a conviction the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted, and the punishment to which he is sentenced.

(3) In the case of an acquittal the judgment shall state the offence of which the accused person is acquitted and shall direct that he be set at liberty."

In Chandar Pal v. Reg [1974] 20 FLR 2, 4 Grant CJ considered an appeal against conviction for causing death by dangerous driving. Grant CJ said, after referring to the inadequacies in the judgment:

"As a general rule, the judgment should commence with a description of the charge, followed by the relevant events and the material evidence set out in correct sequence in narrative form, the identifying number of each pertinent witness being incorporated in the appropriate places, after which the Magistrate should state what witnesses he believes and whose evidence he accepts or rejects, and should proceed to make his findings of fact, apply the appropriate law to those facts, and give his reasoned decision; bearing in mind throughout the provisions of section 154(1) of the Criminal Procedure Code."

In Wakeham v. The State [2003] HAA0040J.2003S the trial magistrate had failed to write a reasoned judgment. The conviction was quashed on the ground that there had been a miscarriage of justice.

Thompson AJ in Majo Datt Sharma v. R (1969) 15 FLR said that:

"Magistrates’ courts are called upon to deal with large numbers of cases and to do so expeditiously. This undoubtedly militates against the writing of lengthy judgments. Nevertheless, there is a degree of brevity beyond which a judgment ceases to comply with section 154(1) and ceases to show that the Magistrate has applied his mind properly to the defence raised."

In Waisele Seru v. State (1996) 42 FLR 123, the basic elements of a judgment were described as a conviction; the offence with which he is convicted; and the sentence on each count. Failure to comply must lead to the quashing of any conviction and sentence.

In this case, it is clear that there was non-compliance with sections 154 and 155 of the Criminal Procedure Code and the sentence must be quashed.

Section 319 of the Criminal Procedure Code allows the High Court to confirm, reverse or vary the decision of the Magistrates’ Court, or to remit the matter with the opinion of the High Court to the Magistrates Court, or may order a new trial. In principle therefore this case could be remitted to the trial magistrate for the delivery of a judgment. However, the non-delivery of the judgment is not the only defect in this case. The allegation of police assault should have resulted in a trial within a trial, and a decision as to the admissibility of the confession. That was not done, and this is also a substantial irregularity.

Further, the learned Magistrate has already sentenced the Appellant, and he may well feel that writing the judgment now is simply going through the motions of the requirements of section 155 of the CPC, without giving him the benefit of any doubt which might have arisen in the course of trial. It would be a case of closing the stable door after the house has already bolted.

In these circumstances it would be just to order a retrial before another magistrate. The offences were alleged to have been committed in May 2006, and they are serious offences which warrant a retrial.

Result

The sentence of the Appellant is quashed. A retrial is ordered before another magistrate.

Nazhat Shameem
JUDGE

At Suva
11th July 2008