Tokivakadua v State [2010] FJHC 225; HAA044.2009S (2 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 044 OF 2009S

1. BILI QITA TOKIVAKADUA
2. JOJI SAIQA
3. ILAISA NACA

V

THE STATE

Counsels: Appellant No. 1 in Person
Appellant No. 2 in Person
Appellant No. 3 in Person
Mr. L. Fotofili for State

Hearing: 29th January 2010
Judgment: 2nd July 2010

JUDGMENT

1. On 15th August 2008, the three appellants, with two others, appeared in the Suva Magistrate Court, on the following charges:

COUNT 1

Statement of Offence

ROBBERY WITH VIOLENCE: contrary to Section 293(1)(b) of the Penal Code, Chapter 17.

Particulars of Offence

BILI QITA TOKIVAKADUA, JOJI SAIQA, ILAISA NACA on the 3rd day of June 2008, at Samabula, in the Central Division, robbed IAN DOUGLAS ROCHE of assorted jewelleries worth $5,000.00, assorted cosmetics worth $390.00, I Nokia mobile phone valued at $300.00, 1 Blackberry phone valued at $799.00, 1 Skype Phone valued at $300.00, I gate remote valued at $170.00, 2 sets of keys valued at $300.00, 1 leather back pack valued at $600.00, 1 Black leather bag valued at $600.00, 2 DVD players valued at $700.00, 1 Panasonic Laptop valued at $1,600.00, 1 MPG Player valued at $200.00, ladies shoes valued at $60.00, 1 Black back pack valued at $600.00, cash F$300.00, cash AUD $400.00 and bank cards all to the total value of $12,319.00 and immediately before such robbery did use personal violence on the said IAN DOUGLAS ROCHE.

COUNT 2

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: contrary to Section 292 of the Penal Code, Chapter 17.

Particulars of Offence

BILI QITATOKIVAKADUA, JOJI SAIQA, ILAISA NACA on the 3rd day of June 2008, at Suva in the Central Division, unlawfully and without colour of right but not so as to be guilty of stealing took to their own use a vehicle registration number DV862 the property of the said IAN DOUGLAS ROCHE.

2. On 3rd November 2008, the three appellants appeared in court, while the other two were absent. A bench warrant was issued for the other two. On 9th February 2009, the Suva Magistrate Court proceeded with the trial of the three appellants. They were unrepresented. Five prosecution witnesses were called. The matter was then adjourned to 1st April 2009 for a "trial within a trial". Twelve police officers gave evidence in the "trial within a trial". On 2nd April 2009, the "trial within a trial" continued. Another police officer gave evidence, and the prosecution closed their case, in the "trial within a trial". Each of three appellants gave evidence on oath, on the "trial within a trial" matter. After giving their evidence, the court stood the matter down to 2.30pm to deliver its ruling on the "trial within a trial".

3. At 2.30pm, the court deferred its ruling on the "trial within a trial" matter. The court then said,

"...All the evidence before me I find that there’s a case to answer against the accused persons. Option now given..."

All the appellants choose to remain silent. Only appellant No. 1 called a witness in its defence. Appellant No. 2 and 3 called no witness. That was the case for the defence. The case was then adjourned to 16th April 2009 for judgment.

4. On 10th April 2009, all judicial appointments were revoked, as a result of the Revocation of Judicial Appointments Decree 2009. The appointment of the learned Resident Magistrate presiding on this matter was revoked. She was unable to deliver judgment on 16th April 2009. The newly appointed Chief Magistrate took over the matter on 14th May 2009, and proceeded to deliver a written judgment on 9th June 2009. He found all three appellants guilty as charged, on both counts. He later sentenced appellant No. 1 and 2 to 5 years imprisonment each, and appellant No. 3 to 3½ years imprisonment.

5. All three appellants have appealed against the learned Chief Magistrate’s decision. Numerous grounds were advanced, but it can be distilled into two:

(i) The learned Chief Magistrate should have disregarded their confessions, since it was unlawfully obtained;

(ii) That there was no direct evidence linking them to the offence.

6. Appeal Ground 5(i) above:

(i) The learned Chief Magistrate did not hear the evidence in this matter. It was heard by another learned Resident Magistrate, sitting at Suva. On 10th April 2009, the presiding Resident Magistrate’s appointment was revoked by the government. She was unable to return to complete the hearing, by delivering judgment on 16th April 2009. The newly appointed Chief Magistrate, at the time, read the evidential notes on the record, and delivered judgment on 9th June 2009. He relied on section 47 of the Magistrate Court Act Chapter 14, as authority for his action.

(ii) Section 47 of the Magistrate Courts Act read as follows:

"...Where a magistrate has issued any summons or warrant or otherwise taken or commenced any proceeding or matter whether civil or criminal, under any authority however conferred, and subsequently ceases to act as such magistrate, it shall be lawful for the person in whose hands such summons or warrant may be to execute or serve the same in the same manner as if the magistrate who issued such summons or warrant had not ceased to act as such magistrate and any successor of such magistrate or any person acting for such magistrate, may hear, determine, execute, enforce and carry to completion any proceeding or matter so commenced as a foresaid save that, except where otherwise provided by the Criminal Procedure Code, such magistrate shall commence the trial of any such cause or matter ab inito..."

(iii) Section 215 of the Criminal Procedure, Chapter 21, read as follows:

"...The court having heard both the prosecutor and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or make an order under the provisions of section 44 of the Penal Code..."

(iv) Section 183 of the Criminal Procedure Decree 2009, now replaced the repealed section 215 of the Criminal Procedure Code, and it reads as follows:

"...The court having heard both the prosecutor and the accused person and their witnesses and evidence, shall either—

(a) find the accused guilty and pass sentence or make an order according to law; or

(b) acquit the accused; or

(c) make an order under the provisions of Part IX of the Sentencing and Penalties Decree 2009.."

(v) After carefully reading and comparing section 47 of the Magistrate Court Act, Chapter 14, section 215 of the repealed Criminal Procedure Code, Chapter 21 and section 183 of the Criminal Procedure Decree 2009, and trying to ascertain the intentions of Parliament and the lawmakers, it is strongly arguable that what the learned Chief Magistrate did at the time, given the factual scenarios that confronted him at the time, was proper and logical. Arguably, he was faced with a somewhat similar scenario that confronted His Lordship Justice Goundar in State v Volivale [2009] FJHC 108, Criminal Case No. HAC 030 of 2005S, High Court, Suva. In that case, Her Ladyship Justice Shameem oversaw the trial with assessors, until the accused was found guilty as charged. Her Ladyship was unable to complete the trial because of the 10th April 2009 crisis. His Lordship Justice Goundar completed the trial by sentencing the accused. In this case, the learned Chief Magistrate, completed the trial by delivering the judgment and passing sentence. Given the aftermath of the 10th April 2009 crisis, I find that what the Chief Magistrate did, at the time, was proper and logical. He was entitled to complete the matter by delivering a judgment and sentence.

(vi) Having said the above, any judgment must comply with the requirements of the repealed section 154 and 155 of the Criminal Procedure Code, Chapter 17, or section 141 and 142 of the Criminal Procedure Decree 2009. When it comes to a Ruling on a "Trial within a Trial", the requirements of the above sections must be applied, with such modifications as the circumstances require. In this case, looking through the court record, there was no ruling on the "trial within a trial" given by the learned presiding trial magistrate. In my view, this was a fatal error. How can the learned Chief Magistrate say that "the caution interview was admitted in this case after a "voir dire" trial", when there was no written ruling on the matter. In a case, which depended so much on the appellants’ confession, it was vital that a written ruling was given, before the trial proper recommenced. The accuseds ought to know why their confessions were ruled admissible evidence, to enable them to map out their defence thereafter. Although the learned trial magistrate was the judge of fact and law, it was still essential to give a written ruling on the "trial within a trial", to enable the defence to plan their defence accordingly. They were deprived of this opportunity, and in my view, that led to a miscarriage of justice. In a sense, the learned Chief Magistrate should have disregarded the appellants’ confessions, on the ground that a written ruling was unavailable, and set the matter up for a trial de novo. I quash the three appellants’ convictions in the Suva Magistrate Court on 9th June, 2009.

7. Appeal Ground 5(ii) above:

(i) Because of the above, it is unnecessary to consider this ground.

8. Summary

Appeal allowed. The three appellants’ convictions in the Suva Magistrate Court on 9th June 2009 are quashed, and a re-trial is ordered before another Resident Magistrate. Since this is an old case, it must be given priority. All three appellants are ordered to appear before the Suva Magistrate Court on 15th July 2010 for mention. The prosecutor is to uplift their exhibits etc. from the court to set the matter up for re-trial. All accuseds are remanded in custody, and any bail application is to be considered by the presiding Resident Magistrate.

Salesi Temo
ACTING JUDGE

AT Suva
2nd July 2010