Rokoua v The State [2006] FJSC 16; CAV0001U.2006S (19 October 2006)

IN THE SUPREME COURT OF the FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0001 OF 2006S
(Fiji Court of Appeal No. AAU0020 of 2005S)

BETWEEN:

JONETANI ROKOUA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Robert French, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice David Andrew Ipp, Judge of the Supreme Court

Hearing: Tuesday, 10th October 2006, Suva

Counsel: Petitioner in Person
R Gibson for the Respondent

Date of Judgment: Thursday, 19th October 2006, Suva

JUDGMENT OF THE COURT

1 The Court: This is an application for special leave to appeal against the petitioner’s conviction on one count of robbery with violence contrary to s 293 of the Penal Code and one count of unlawful use of a motor vehicle contrary to s 292 of the Code. Govind J and three assessors constituted the trial court that convicted the petitioner.

2 The State alleged that on 20 November 2001 the petitioner and another man went to the premises of a motor vehicle dealer. Two Indian salesmen (the sales manager, Ashwin Mani, and one Nizam) were in the office at the time. The men said that they would like to test drive a four-wheel-drive vehicle. Mr Mani selected a brown four-wheel-drive and took the two men for a drive. One of the men took over driving and Mr Mani moved to the front passenger seat. In an apparently planned move, the driver stopped the car and the other man put a knife to Mr Mani’s throat. The men took Mani’s purse containing five dollars. Mr Mani was ejected from the vehicle and the two men drove off in it.

3 At the trial Mr Mani testified that, a few days after the robbery, he took part in an identity parade where he identified the petitioner, from a group of ten other men, as one of the robbers. In cross-examination, the petitioner put to Mr Mani that, at the identity parade, he identified two other men, in addition to the petitioner, but Mr Mani said that he "positively" denied having done so.

4 A police officer, Detective Maciu Vava, testified that on the afternoon of the robbery he recognised the petitioner, whom he knew, sitting in a brown four-wheel drive with altered licence plates at the Lautoka hospital. He was unmoved in cross-examination.

5 The petitioner, when testifying, denied any involvement in the robbery. He contended that Detective Vava was lying in saying that he had seen the petitioner in a brown four-wheel-drive after the robbery. He denied that this had occurred.

6 In his defence, the petitioner called Joseph King and Josateki Labalaba to testify.

7 Mr King said that in November 2001 he and Mr Labalaba had been arrested on a charge of unlawful use of a motor vehicle. Mr King said that an Indian man identified Mr Labalaba and himself as having participated in the robbery. The investigating officer told Mr King that the Indian man was a salesman from the car dealer. According to Mr King, the salesman said that he and Mr Labalaba had test driven the vehicle and had robbed him. Mr King said that he was released the day after he was arrested.

8 Mr Labalaba testified that a motor vehicle salesman identified Mr King and himself as having been involved in the robbery. He said that, later, the salesman returned to the gaol and said that Mr King and Mr Labalaba had not been involved. Mr Labalaba was then released.

9 The petitioner denied that he had been involved in the robbery and contended that the prosecution case was based on an erroneous identification.

10 Thus, the trial was squarely a credibility contest. The assessors were called upon to decide whether the prosecution had proved beyond reasonable doubt that the evidence given by Mr Mani and Detective Vava was to be believed in preference to that given by the petitioner, Mr King and Mr Labalaba. The trial judge's charge on this particular issue is not now challenged. The Court of Appeal described it as "clear and faultless".

11 The assessors found against the petitioner, and he was convicted as charged. He appealed to the Court of Appeal, but his appeal was dismissed.
12 The petitioner's first ground of appeal in his application for special leave to appeal to this Court was based on the proposition that Mr Mani had been lying when he testified that he had not identified anyone else as having been involved in the robbery. He submitted that Detective Vava, too had been lying. He argued that he had been convicted on perjured evidence.

13 After the High Court had passed sentence, and apparently at the request of a single judge made in interlocutory proceedings, counsel for the prosecution at the trial, Mr Qica, provided an affidavit dealing with, amongst other things, the order in which the petitioner had called his witnesses and the question whether Mr King and Mr Labalaba had been arrested for the offence for which the petitioner had been convicted.
14 The order in which the defence witnesses testified is relevant by reason of a ground raised by the petitioner with which we deal below. In regard to whether Mr King and Mr Labalaba were arrested for the offence for which the petitioner had been convicted, Mr Qica said:

"To my recollection, Joseph King was questioned and released by the police for the same offence as the appellant. I cannot recall why Josateki Labalaba was arrested and the police released him after questioning."

15 The petitioner submitted to this Court that the affidavit of Mr Qica proved that Mr King and Mr Labalaba had, indeed, been arrested for the offence in question. He submitted that they were arrested because they had been identified as having been involved in the robbery. He put his case on the basis that the person who had identified them was Mr Mani, and not Mr Nizam. He argued that the affidavit of Mr Qica showed that Mr Mani had lied and that he was not a credible witness.

16 Three points must be made about these submissions.

17 Firstly, Mr Qica’s affidavit is equivocal. When he says, "to my recollection ...", it is not clear whether he is remembering the evidence that King and Labalaba gave at the trial, or whether he is testifying as to what actually occurred. If the latter, his evidence is hearsay. Moreover, his affidavit does not reveal the source of his information.

18 There is nothing to establish that Mr Qica was present when Mr King and Mr Labalaba were arrested and it is probable that he was not. It is not possible to determine the reliability of his hearsay statement as to the arrest and release of Mr King and Mr Labalaba. Thus, his affidavit does not satisfactorily establish that Mr King and Mr Labalaba had been arrested for the same offences, as the petitioner contended.

19 Secondly, it seems that, before the Court of Appeal, the petitioner contended that Mr Nizam, and not Mr Mani, identified Mr King and Mr Labalaba. As we explain below, he based his argument that he had been prejudiced by the delay in the hearing of the trial on the fact that Mr Nizam had left Fiji and was not available to testify. It is not clear from the record whether, at trial, he contended that Mr Mani and the Indian man who had wrongly identified Mr King and Mr Labalaba were one and the same person, or whether his case was that, while Mr Mani had identified him, Mr Nizam had identified Mr King and Mr Labalaba. It is, however, clear that, whatever the changes in the way in which, over time, the petitioner has put his case in this respect, the issue of his identification was put in unequivocal and appropriate terms to the assessors.

20 Thirdly, even were it the case that Mr King and Mr Labalaba were arrested, that would not falsify the evidence of Mr Mani, whose testimony was to the effect that he identified only one person and that was the petitioner. It may be that, contrary to the evidence of the investigating officer, Mr Nizam identified Mr King and Mr Labalaba, but that would not assist the petitioner in discrediting Mr Mani. The petitioner, as mentioned, asserted before this Court that Mr Mani had identified Mr King and Mr Labalaba but there is no evidence that supports this submission.

21 The petitioner was afforded a fair trial on the credibility issue and we are not persuaded that the trial court erred in regard to this issue. Nor is there anything to suggest that the Court of Appeal erred in this connection. Mr Qica’s affidavit, for the reasons stated, is not helpful. There is nothing in the petitioner's challenge to the credibility finding that justifies special leave to appeal.
22 The next ground of appeal is that there was a substantial delay (18 months) between the time of the petitioner's committal and his trial. The petitioner contended that this was in contravention of section 29(3) of the Constitution which provides:

Every person charged with an offence... has the right to have the case determined within a reasonable time.

23 We have mentioned that, at the time of the trial, Mr Nizam was not living in Fiji. The petitioner argued that, but for the delay, Mr Nizam would have supported his argument that Mr King and Mr Labalaba had been identified as having participated in the robbery. The Court of Appeal, however, correctly pointed out:

The question, however, for the assessors was not why [Nizam] had not picked out the appellant, but whether they were satisfied beyond reasonable doubt that the identification by Ashwin Mani and the police officer Maciu were [sic] correct."

24 The Court of Appeal found that, in view of the clear directions given by the judge as to the relevance of Mr Nizam’s absence from the trial and his apparent failure to identify the petitioner at the identity parade, the petitioner was not prejudiced by Mr Nizam’s unavailability. The Court of Appeal stated:

Although in total the lapse of time between the appellant's first appearance and his trial was unsatisfactory and at least partly the result of dilatoriness in the Magistrates Court, we are not satisfied that it was so inordinate as to be unconstitutional. We note that part of the delay was caused by the appellant’s own several failures to appear.

25 Apart from that part of the delay for which the petitioner himself was responsible, the principal reason for the overall delay was that, during 2002 to 2004, the High Court at Lautoka was faced with a large number of trials involving persons remanded in custody who were charged with serious offences. Priority was given to disposal of those cases. The petitioner was charged with a less serious offence and was remanded on bail; this caused much of the delay.

26 The petitioner relied on Zimmerman and Steiner v Switzerland [1983] ECHR 9; 6 EHRR 17 where it was held that the European Convention places a duty on contracting parties, regardless of cost, "to organise their legal systems so as to allow the courts to comply with the requirements of Article 6 (1)".
27 The principle expressed in Zimmerman and Steiner v Switzerland was based on a construction of the European Convention. Fiji, of course, is not a party to that convention. The Fiji Constitution must be construed in the context of all the factors that make up the country and the Fijian nation. Without being exhaustive, these include the history of Fiji, its geographic position, its size and resources, the fact that it is a developing country, and the makeup of its population. Fiji is not comparable to a Western European country such as Switzerland, and the Constitution is a very different instrument to the European Convention. While decisions construing the Convention may in some instances aid in construing the Constitution, they can never do more than that.

28 Section 29(3) of the Constitution expressly imports the criterion of reasonableness. Regard must be had, in construing the word "reasonableness", to the resources available in this country to the administration of justice. Otherwise, the consequences may be chaotic and the harm to the general community incalculable.

29 The delay in this case has not been shown to be unreasonable. The petitioner's ground of appeal based on delay must therefore fail.
30 The next ground on which the petitioner relies is that one of the assessors, Manueli Turagaivelu, knew of the petitioner’s prior convictions and should have been stood aside.

31 Mr Turagaivelu greeted the petitioner outside the court before the trial started. When the assessors were sworn in, however, the petitioner did not mention that he knew Mr Turagaivelu.

32 The petitioner himself introduced evidence of his prior convictions. He did so in the course of telling the assessors that he was being victimised by the police. The Court of Appeal found that there was nothing to suggest that the petitioner’s trial was in any way prejudiced by Mr Turagaivelu’s acquaintanceship with him. There is no substance in this ground.
33 Finally, the petitioner asserted that the trial judge was biased. In this regard, he made two points. Firstly, he asserted that the judge refused to allow him to call one Mrs Fong as an alibi witness because the judge had been friendly with Mrs Fong’s late husband and had attended his funeral. Secondly, the petitioner asserted that his Lordship had falsified the record of the evidence in order to conceal the fact that, after refusing to allow Mrs Fong to be called the following day, another alibi witness was called (the other alibi witness, in fact, was called on the day that the petitioner requested leave to call Mrs Fong).
34 When the petitioner asked the judge to disqualify himself on the grounds stated, his Lordship stated that he had been to the funeral of Mrs Fong's husband but said that that was not a ground for him to disqualify himself. The Court of Appeal came to the same conclusion. We are not persuaded that the trial judge and the Court of Appeal were wrong in this regard.
35 In regard to the petitioner's allegation that the judge falsified the record, the petitioner relied on the affidavit of Mr Qica. In his affidavit, Mr Qica set out the order of the witnesses called by the petitioner. This order differed from the order that appears in the record.

36 Mr Qica’s recollection in this respect, however, does not appear to be reliable. This is apparent from Mr Qica’s contemporaneous notes of the evidence given in the course of the petitioner's case, made at the trial, A copy of these notes was part of his affidavit. The order of witnesses disclosed by his notes differs from the order to which he testified in his affidavit.

37 All in all, no foundation has been established for the allegation of bias on the part of the judge. This was the conclusion of the Court of Appeal, and we agree. This ground has no prospect of success.

38 Accordingly, the application for special leave to appeal is dismissed.

Hon Justice Robert French
President of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice David Andrew Ipp
Judge of the Supreme Court

Solicitors:

Petitioner in Person
Office of the Director of Public Prosecutions, Suva for the Respondent

CAV0001U.06S