Rosi v Reginam [1979] FJSC 33; Criminal Appeal No. 27 OF 1979 (23 October 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Appellate Jurisdiction

Criminal Appeal No. 27 of 1979

BETWEEN

KUSITINO ROSI & 2 ORS.
(Appellants)

AND

REGINAM
(Respondent)

Mr. S. Verma for Messrs G.P. Shankar & Co.,
for the Appellants
Mr. D. Williams, for the Respondent

JUDGMENT

The three appellants were charged with two counts of arson contrary to Section 353(a) of the Penal Code. They pleaded not guilty, but after hearing evidence, including evidence from the three appellants the magistrate found them guilty on both counts and sentenced them each to 4 years imprisonment on count 1 and 18 months imprisonment on count 2, the sentences to run concurrently. They now appeal both against their conviction and the sentences passed on them.

The case against the appellants depended very heavily on confessions made by each of them during the course of interviews and interrogation conducted by the police. There was other evidence pointing the finger of suspicion against
them, but it is indisputable that without the confessions there would have been insufficient evidence to support the convictions.

The admissibility of these confessions was challenged during the course of a trial within a trial, but subject to a fairly minor qualification and excision they were admitted. Once they were admitted and accepted as having been freely and voluntarily made then the conviction of the three appellants on both charges followed almost inevitably.

The grounds of appeal are as follows -

a) The magistrate erred in law in disbelieving the appellants in the trial within a trial on the basis of impressions.

b) The magistrate failed to properly evaluate the evidence of the police officers in view of serious contradictions therein.

c) The magistrate wrongly admitted the evidence of the confessions and erred in relying on there when it was proved that unauthorised additions were made to them.

d) That there was in law no evidence of the ownership of the two houses.

e) That the verdict is against the weight of evidence considering all the circumstances.

Ground d) was not argued, not really surprisingly in view of the evidence of the complainant P.W.1.

Ground a) was based on the fact that in the trial within a trial the magistrate believed the evidence of the police officers and rejected the evidence given by the appellants, and in dealing with the evidence of A.2 said "I appreciate that A.1 may, as his counsel suggests be a man of limited education, but his prevaricative attitude in answering questions put to him both in evidence in chief and in cross examination failed to impress me as to his truthfulness." Later he said, "As I have said above A.2 did not make a creditworthy witness, his prevarication when asked questions, the inconsistencies in his relation of events as well as his failure to take such reasonable steps on his own behalf as I have referred to above, satisfy me that he is not telling the truth. I accept the evidence of the prosecution witnesses as truthful."

The "reasonable steps" the magistrate referred to are related to the fact that the accused did not complain to his counsel about the alleged assault by the police when he saw him 2 days later, nor did he raise any complaint when he was later taken before a magistrate.

These were the only points raised by counsel in support of the first ground of appeal and on this I am asked to find that the magistrate erred in rejecting the appellant's evidence in the trial within a trial, and also that the magistrate failed properly to evaluate the evidence. But even if I thought that these two quotations were rather meagre reasons for rejecting the appellant's evidence, it is impossible to ignore the fact that the magistrate's ruling on the admissibility of the confessions ran to 11 full pages, whilst his judgment in the case ran to a further 6 full pages. Whilst I accept that length does not necessarily imply correctness, accuracy or even completeness, it is not possible to read the ruling or the final judgment without being aware of the very careful consideration given by the magistrate to every aspect of the case. It is not correct that he disbelieved the appellants only because of impressions. He dealt at length with the evidence given by all the witnesses including the appellant. He dealt with the improbabilities in the evidence of the appellants, especially in their accounts of assault by the police, and it is abundantly clear that he did not arrive at his conclusions without the most careful consideration and evaluation of all the evidence.

With regard to the contradictions in the evidence of the police officers the magistrate had this to say (and the contradictions, such as they were only became apparent in the main trial, not in the voir dire)

"-------subsequent cross-examination revealed inconsistencies in the evidence of PW 3 and PW 4 but then it would be singular if it did not. One must draw a distinction between direct contradictions which are of a highly pertinent nature and which go to the root of the matter and minor inconsistencies which, if anything, tend to show that the witnesses in question have not conspired to give fabricated evidence. That is to say that if PW 3 and PW 4 gave evidence identical in all respects, notwithstanding the fact that the event of which they speak happened 6 months ago, it might lead to a belief that they had collaborated in preparing their testimonies."

So there is no doubt that in reaching his conclusions the magistrate did take into account inconsistencies or contradictions in the evidence given by the police witnesses, he did properly evaluated their evidence and all the other evidence, and on this ground I don't think his judgment can be faulted.

The third ground of appeal was that since there were unauthorised additions to the confessions they should not have been admitted in evidence.

There was evidence by police witnesses that after A3 had finished his interview and had signed the record, a further question was asked and the answer recorded, the question and answer being inserted above the signature.

The question was the same as had been asked of one of the other appellants, it raised a significant point but was not of great importance in indication the appellants' guilt.

It would have been better if the question and answer had been shown as additional on the record when there could have been no serious objection to it. The magistrate, quite properly in the exercise of his discretion, decided that this part of the record should be treated as inadmissible but refused argument that the whole record of the interview should be rejected. No authority was quoted for this ground of appeal and I am not persuaded that the magistrate erred in the view he took.

Although this was not one of the written grounds of appeal counsel for the appellants argued that for the purpose of the interviews the police followed Judges Rules II but did not follow Judges Rules IV which says that where written statements are taken after caution the suspect should if he doesn't wish to write the statement himself be asked to sign a certificate in the following terms-

"I .........wish to make a statement. I want someone to write down what I say. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence."

This argument was not raised in the court below, although another objection under the Judges Rules was raised and dealt with. It was there pointed out by the magistrate that the Rules is not necessarily fatal to the prosecution case. This applies equally well to the argument now raised by the defence counsel and I would also point out that Judges Rule IV hardly seems to apply to a situation where a suspect is being interviewed and a record being made of questions and answers. The suspect can hardly be expected to record the whole of the interview and this surely must be done by the interviewing officer. I can see no merit in this ground of appeal.

It is clear from the record that the magistrate dealt properly and fully with the evidence before him, and there was ample evidence in the confessions taken together with other pieces of evidence that dovetail neatly with what the appellants said, to support the convictions of all three appellants.

With regard to sentence the remarks recorded by the magistrate fully justify the sentence he passed on the appellants. Arson is a nasty, cowardly way to take revenge and fully justifies a deterrent sentence.

The appeal is therefore dismissed both as to conviction and sentence.

(G.O.L. Dyke)
JUDGE

Lautoka,
23rd October, 1979.