Vatutaqiri v State - Judgment [2014] FJHC 186; HAM055.2013S (20 March 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION
MISCELLANEOUS CASE NO. HAM 055 OF 2013S

BETWEEN

1. KILIONI VATUTAQIRI
2. JOSUA ROGERS
3. RICHARD FILHFORD
APPLICANTS

AND

THE STATE
RESPONDENT

Counsels : All Applicants in Person
Mr. L. Fotofili for Respondent
Hearing : 5 November, 2013
Judgment : 20 March, 2014

JUDGMENT

1. On 24 August 2009, all three applicants (accuseds) appeared in the Suva Magistrate Court on the following charges:
   

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293 (1) (b) of the Penal Code Act 17.

Particulars of Offence

JOSUA ROGERS, RICHARD FILHFORD, KILIONI VATUTAQIRI AND ANOTHER, on 7 day of August, 2009 at Nabua in the Central Division, robbed RAMESH PRASAD of his gold chain valued at $500.00, 1 x Sony DVD Player valued at $400.00, 1 x Canterbury bag valued at $60.00 and1 x Alcatel Phone valued at $65.00 and immediately before such robbery did use personal violence to said RAMESH PRASAD.

SECOND COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293 (1) (b)of the Penal Code Act 17.

Particulars of Offence

JOSUA ROGERS, RICHARD FILHFORD, KILIONI VATUTAQIRI AND ANOTHER, on the 7 day of August, 2009 at Nabua in the Central Division, robbed MANJULA DEVI of $200.00 cash and immediately before such robbery did use personal violence to said MANJULA DEVI.

THIRD COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293 (1) (b) of the Penal Code Act 17.

Particulars of Offence

JOSUA ROGERS, RICHARD FILHFORD, KILIONI VATUTAQIRI AND ANOTHER, on the 7 day of August, 2009 at Nabua in the Central Division, robbed NIMITA PRASAD of 2 x Alcatel phone valued at $65.00 each and immediately before such robbery did use personal violence to said NIMITA PRASAD.

FOUTH COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293 (1) (b) of the Penal Code Act 17.

Particulars of Offence

JOSUA ROGERS, RICHARD FILHFORD, KILIONI VATUTAQIRI AND ANOTHER, on the 7 day of August, 2009 at Nabua in the Central Division, robbed PRITIKA SHADINI of her Mangal Sutra valued at $2,500.00, 3 x Gold ring valued at $400.00 and her Anglet Angle valued at $400.00 and immediately before such robbery did use personal violence to said PRITIKA SHADINI.

2. The matter went through 5 pre-trial proceedings, before the trial proper started on 12 June 2010. Prior to the trial, all three applicants waived their right to counsels, and pleaded not guilty to the charges. The prosecution called 9 witnesses on the first day of the trial – 4 civilians and 5 police officers. The civilian witnesses included all the four complainants in each count. On the second day of the trial (3 July 2010), the prosecution called another witness (a police officer), and then closed it's case.
   
3. It appeared a prima facie case was found against each applicant, and each were put to their defence. Applicant No. 2 and 3 choose to remain silent. Applicants No. 1 choose to give sworn evidence. In his evidence, Applicant No. 1 said he was at home with his father and grandmother, at the time the crime was committed. When cross-examined by prosecution, he appeared to say that the police forced his confession out of him, by punching his ribs. The proceeding ended, and judgment was delivered on 7 October 2011.
   
4. All applicants were found guilty as charged on all counts and convicted accordingly. On 29 May 2012, Applicant No. 1 was sentenced to a total of 9 years imprisonment, with a non-parole period of 3 years. Applicant No. 2 was sentenced to 6 years imprisonment, with a non-parole period of 2 years. Applicant No. 3 was sentenced to 5 years imprisonment, with a non-parole period of 1 year imprisonment.
   
5. On 13 March 2013, Applicant No. 1 filed an application for leave to appeal out of time, against his conviction and sentence. He appeared in court, with the prosecutor on 31 May 2013. The prosecution advised the court that the prosecution's case in the Magistrate Court, was founded basically on the acceptance of all applicants' alleged confessions, in their police caution interview statements. The prosecution advised, that no "trial within a trial" was held to determine the admissibility of the applicants' alleged confessions, in the Magistrate Court. The prosecution appeared to argue that, based on the observations of the Fiji Court of Appeal in Sakiusa Rokonabete v The State, Criminal Appeal No. AAU 0048 of 2005, the Magistrate Court's proceeding was a "nullity".
   
6. All the Applicants appeared in court on 20 June 2013, with the prosecutor. The court called for submissions from the parties, especially from the prosecution, on the following questions:
   
   • (i) In the Magistrate Court, when an accused is unrepresented, and the State relied principally on the accused's alleged confession in his police caution interview statements, it is mandatory for the Magistrate Court to hold "a trial within a trial", in accordance with paragraphs 24, 25 and 26 of Sakiusa Rokonabete v The State (supra)?
     
   • (ii) If a "trial within a trial" was mandatory, and the Magistrate Court failing to carry out such, is the learned Resident Magistrate's decision, that is, relying on the untested alleged confession, to ground a conviction, invalid?
     
   • (iii) If invalid, is a re-trial appropriate?
     

7. On 30 September 2013, the prosecution filed and served copies of his submission on all applicants. The applicants filed and served their submission on 5 November 2013. I have carefully read and considered all the papers submitted by the parties.

8. The answers to the above questions, in my view, lies in examining what the Fiji Court of Appeal said in Sakiusa Rokonabete v The State (supra), and I quote as follows:

"...20. Under the common law, a court faced with a challenge to the admissibility of a confession was under a duty to ascertain that issue separately from the remainder of the prosecution evidence and the court had a discretion to decide, in the particular circumstances of the case, whether a trial within a trial was necessary. However, unless the defence sought not to have one, it became an almost invariable practice to do so. Since the passing of the Police and Criminal Evidence Act, the English magistrates' courts have been obliged to hold a trial within a trial whenever there is a challenge to the admissibility of the statement. The Australia and New Zealand Courts have followed a similar practice for many years...

22. Clearly the position is different from a trial by judge and jury. In most common law jurisdictions, challenges in jury trials to the voluntariness and admissibility of a confession result in a trial within a trial in the absence of the jurors. We note that the High Court follows the practice of jury trials and holds a trial within a trial in the absence generally of the assessors. However, the procedure in a trial with assessors under our law is in reality closer to that in the Magistrates' Court than it is to that of a court holding a jury trial. In the latter, the jury is the sole judge of fact and the judge is the judge of law.

23. The purpose of excluding the jurors in to allow the judge to determine the admissibility as a question of law without the risk that the jurors will hear matters which may be inadmissible. In Fiji, the assessors are not the sole judges of fact. The judge is the sole judge of fact in respect of guilt and the assessors are there only to offer their opinions based on their views of the facts. It is sensible to exclude them, as is done for jurors and for similar reasons, whilst evidence which may be excluded from the trial of the case is led. However, the judge is in a similar position to a magistrate. He hears the evidence in the trial within a trial and if he concludes that it is inadmissible and must be excluded, he will have to continue with the trial having put it out of his mind. We see no sensible reason why the magistrates should not follow the same procedure.

24. Whenever the court it advised that there is challenge to the confession, it must hold a trial within a trial on the issue of admissibility unless counsel for the defence specifically declines such a hearing. When the accused is not represented, a trial within a trial must always be held. At the conclusion of the trial within a trial, a ruling must be given before the principal trial proceeds further. Where the confession is so crucial to the prosecution case that its exclusion will result in there being no case to answer, the trial within a trial should be held at the outset of the trial. In other cases, the court may decide to wait until the evidence of the disputed confession is to be led.

25. It would seem likely, when the accused is represented by counsel, that the court will be advised early in the hearing that there is a challenge to the confession. When that is the case, the court should ask defence counsel if a trial within a trial is required and then hear counsel on the best time at which to hold it. If the accused is not represented, the court should ask the accused if he is challenging the confession and explain the grounds upon which that can be done.

26. We are conscious of the time that such a procedure will consume and we consider that there is scope for one variation from the procedure followed in trials with assessors. If the magistrate allows the statement to be admitted it will not be necessary to rehear the evidence on the matters already raised in the trial within a trial. However, even in such a case, it will necessary to call at least some of the witnesses from the trial within a trial to read the contents of the hitherto challenged document..."

9. The above comments by the Court of Appeal are binding on the High Court and Magistrate Courts of Fiji. In examining the court record in this case, five pre-trial proceedings were done before the trial proper commenced on 12 June 2010. All pre-trial issues and preparation must be done before the trial proper starts. The court dealt with the right to counsel, disclosures and bail issues, in the pre-trial proceedings. In fact, there is no reason why the Magistrate court cannot adopt the pre-trial conference procedure that is employed in the High Court. With the supremacy of the 2013 Fiji Constitution, section 13, 14 and 15 should be treated as a checklist for all criminal courts.

10. Since the prosecution bears the burden to prove the accused's guilt beyond reasonable doubt throughout the trial, the court did not ask the prosecution what evidence it was relying on to ground a possible conviction. This is part and parcel of the accused's right to a fair trial, and is now mandatory under the 2013 Constitution [see section 14(2)(b), (c), (e), (k) and (l)]. Asking this question will alert the court and the defence to the evidential issues that will come up in the trial proper. In this case, the prosecution relied mainly on the applicants' alleged confessions in their police caution interview statements. Furthermore, when reading the court record, two of the State witnesses (ie. PW1 and PW4) said they identified one of the accused during the crime. If the prosecution was relying also on identification evidence, it should also say so. The evidential issues concerning identification evidence must also be tackled, for example, the R v Turnbull [1976] 3 All E. R. 549 tests.

11. So, in this case, a proper application of the pre-trial conference procedures would reveal that, the prosecution relies primarily on the applicants' alleged confessions and identification evidence, to ground a possible conviction. Given that the accuseds are unrepresented, it was therefore mandatory for the Magistrate Court to follow the Court of Appeal's directions in Sakiusa Rokonabete v The State (supra) visa vi paragraphs 24 and 25. No "trial within a trial" was held in this case to test the admissibility of the applicants' alleged confessions to the police. Consequently, the learned Magistrate's judgment on 7 October 2011 was invalid. It was invalid in the sense that, the unrepresented applicants' right to a fair trial in the form of the activation of the voir dire procedure to test the voluntariness of their alleged confessions, was not carried out. Consequently, the learned Magistrate's judgment of 7 October 2011 was tainted, because of the above oversight.

12. In my view, the answer to the questions posed in paragraph 6(i), (ii) and (iii) hereof, would be as follows:

(i) Question 6(i) – Answer would be "yes".

(ii) Question 6(ii) – Answer would be "yes".

(iii) Question 6(iii) – My answer to this question would be "yes". This was a serious home invasion offence. The alleged complainants' complaints need to be ventilated in court. The justice of this case required that it be done according to law. Likewise, the three applicants (accuseds) need to be tried according to law. Not holding a "trial within a trial" was a denial of the accuseds' right to a fair trial.

13. I have decided to treat the "leave to appeal out of time application" and the "appeal proper" together, because they are inter-related. The applicants need to show "good cause" to be given permission to appeal out of time. "Good Cause" included the merits of their appeal. In my view, given what is mentioned above, the three applicants have shown "good cause" for permission to be granted leave to appeal out of time, and I give them permission accordingly.

14. On the "appeal proper", I make the following orders:

(i) The three applicants' convictions on 7 October 2011 in Suva Magistrate Court Criminal Case No. 1055 of 2009 are quashed and set aside;

(ii) A re-trial in the Suva Magistrate Court is to be done, as soon as possible, not later than 6 months from today;

(iii) All applicants (accuseds) are to be remanded in custody pending trial, subject to the learned trial Magistrate's orders;

(iv) Case is remitted to the Chief Magistrate's Court to decide which Magistrate to try this case, as soon as possible, according to law;

(v) All accuseds' right to counsel to be re-put to them;

(vi) The prosecution to uplift their exhibits from the court file, and prepare for trial, as soon as possible;

(vii) Adjourned to the Chief Magistrate's Court on 3 April 2014 at 9.30am, for re-trial proceeding to commence.

15. Before I leave this case, I would ask the learned trial Magistrate who will deal with this case not to repeat what occurred in this case. The first call was on 24 August 2009. The first day of the trial proper was on 12 June 2010. The second day of trial was on 3 July 2010. Judgment was delivered on 7 October 2011, and sentence done on 29 May 2012. This case could be resolved within 5 to 8 working days at the least.

Salesi Temo
JUDGE

Solicitor for All Applicants : In Person
Solicitor for the State : Office of the Director of Public Prosecution, Suva.