Yaba v State [2008] FJSC 33; CAV0003.2006 (25 February 2008)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0003 OF 2006
(Fiji Court of Criminal Appeal No AAU 44 of 2005)

BETWEEN:

VIDALI YABA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Tuesday, 19th February 2008, Suva

Counsel: Petitioner in Person
W Kurisagila for the Respondent

Date of Judgment: Monday, 25th February 2008, Suva

JUDGMENT OF THE COURT

At the conclusion of the hearing the Court announced that this petition would be dismissed and that reasons would be given in writing in due course. Those reasons are now given.

1. The petitioner was tried and convicted in the High Court at Lautoka, on one count of murder and one count of robbery with violence. He was sentenced on 16 September 1997 to life imprisonment on the count of murder, and to seven years imprisonment on the count of robbery with violence.
   
2. On 24 November 2003as granted lead leave to appeal, out of time, against conviction.
   
3. The petitioner was not legally represented before the Court of Appeal. On 15 November 2005, thurt dismisismissed his appeal against conviction. The petitioner then sought special leave to appeal from that judgment.
   

Factual Background

4. The evidence established that at about 10pm on 27 July 1996, a number of intruders broke into the home of the deceased, an elderly lady, and brutally assaulted her. She was repeatedly struck with a knife to the head, punched and kicked. She sustained horrific injuries from which she died several days later.
   
5. On 31 July 1996, before the deceased succumbed to her injuries, the police, acting on intelligence received, arrested the petitioner together with his older brother, and two other young men. They were all taken to Tavua Police Station. The petitioner was interviewed and, according to the police, confessed to robbery. He was, at that stage, charged with robbery with violence.
   
6. Some days later, after the deceased had died, the petitioner was charged with her murder. The police did not interview him again in relation to that offence.
   
7. At their trial, the petitioner and his co-accused all objected to the tender of their records of interview. It was submitted, on behalf of the petitioner, that in the course of that interview, he had been repeatedly assaulted. Accordingly, so it was said, his confession was involuntary and inadmissible. It was submitted, in the alternative, that the record of interview should be excluded in the exercise of the trial judge’s discretion.
   
8. The trial judge conducted a lengthy voir dire. Some seventeen prosecution witnesses were called. The petitioner and each of his co-accused also gave evidence. At the conclusion of the voir dire, the trial judge ruled that the records of interview of two of the accused should be excluded. However, his Lordship ruled that the records of interview of the petitioner, and of his brother, should be admitted.
   

The Judgment of the Court of Appeal

9. In challenging his conviction before the Court of Appeal the petitioner relied upon two grounds. These were (a) that the trial judge had erred in admitting his record of interview, and (b) that the assessors should have been told of the possibility that they might bring in a verdict of manslaughter.
   
10. In addition, the petitioner argued before the Court of Appeal that the trial judge had erred in failing to consider whether the record of interview had been conducted in breach of his rights under the Fiji Constitution.
    
11. The Court of Appeal assumed, in regard to that last matter, that the petitioner was seeking to invoke s 27 of onstitution. That sect section sets out in some detail the rights of persons arrested or detained. These include the right to be informed of the reasons for arrest or detention, pursuant to s 27(1) (a). They also include the right to consult with a legal practitioner of the person’s choice in the place where he or she is detained, to be providethe State, if necessary, pursuant to s 27(1) (c).
    
The Court of Appeal disposed of the constitutional argument summarily. As their Lordships observed, the Constitution only came inte into force on 27 July 1998. Any rights conferred under the Constitution could not avail the petitioner whose arrest, trial and conviction all took place well before that date.

13. That left for consideration only the challenge to the record of interview, and the complaint regarding the trial judge’s failure to leave manslaughter as a possible alternative to the count of murder.
    
14. The Court of Appeal concluded that the trial judge had been entitled to reject the petitioner’s account of having been severely beaten by the police during the course of the interview. Their Lordships noted that the petitioner had been examined by a doctor on the day after the interview took place, and that the doctor saw no signs of any injury.
    
15. The Court of Appeal further noted that the trial judge had given careful consideration to whether the interview itself had been conducted fairly. He found no impropriety on the part of the police. He rejected the petitioner’s claim that the police themselves had supplied the answers to their own questions. He found that the details provided in the answers given made it highly unlikely that anyone other than the petitioner could have had knowledge of those matters. Put simply, he preferred the evidence of the prosecution witnesses to that of the petitioner.
    
16. The Court of Appeal stated that questions of credibility on a voir dire are primarily matters for a trial judge to assess. An appellate court should not disturb a trial judge’s finding of fact, based on findings as to credit, unless that Court was satisfied that an entirely wrong assessment of the evidence had been made. Their Lordships referred to Jai Ram v The State (AAU 17/2004), and several other cases as authority for that proposition. It was on that basis that their Lordships rejected the petitioner’s first ground of appeal.
    
17. In relation to the trial judge’s failure to leave manslaughter, the Court of Appeal noted that this ground had been included in the grounds of appeal, but that the petitioner had no idea what it meant. Plainly, it had been suggested to him by someone else.
    
18. Their Lordships dealt with the matter briefly. They noted that it was the petitioner’s claim that he was not present at the break-in, and had nothing to do with the assault or the robbery. Given the nature of that defence there was no real scope, in the circumstances of this case, for manslaughter to be left to the assessors. The deceased sustained appalling injuries. Whoever took part in inflicting those injuries must have intended, at the very least, to cause really serious injury, or have been reckless thereto. There was no evidential foundation for any possible verdict of manslaughter. Their Lordships referred to R v Thorpe (1925) 18 Cr App R 189 and R v Malcolm [1950] NZGazLawRp 146; [1951] NZLR 470 in that regard. This second ground of appeal was rejected. Accordingly, the appeal was dismissed.
    

The application for special leave

19. The petitioner was not legally represented before this Court. His petition (which was styled "an application for leave for judicial review") was filed on 21 July 2006, some eionths afts after the Court of Appeal delivered judgment. The petition was amended on 8 August 20t was therefore sure substantially out of time.
    
20. In his written submissions the petitioner relied, in substance, upon the same arguments as had been advanced before the Court of Appeal. However, he added one additional ground. He submitted that his trial had been a nullity because of what described as his improper "committal" on a charge of murder. He claimed that the failure of the police to question him again, after the death of the deceased, specifically in relation to her murder, in some way vitiated his conviction.
    
21. We gave consideration to each of the petitioner’s submissions. We concluded that they were without substance.
    
22. The Court of Appeal dealt correctly with the two grounds of appeal that were raised before it. The trial judge was entitled to prefer the evidence of the prosecution witnesses to that of the petitioner when ruling upon the voir dire. He was entitled to conclude, as he did, that the petitioner’s confession was voluntary and admissible. He was also entitled to find that it should be admitted in the exercise of discretion.
    
23. There may be cases where the failure of a trial judge to direct the assessors as to the possibility of an alternative verdict of manslaughter will give rise to a miscarriage of justice. That is particularly so if the accused’s case is that he lacked the requisite mental state for murder. This is not such a case. Realistically speaking, the savage beating inflicted upon the deceased had to be regarded as murder. Any one involved in this brutal assault must at least have known that the injuries inflicted would probably cause grievous harm to an elderly woman, and must at least have been indifferent to whether such harm was caused or not. See generally s 202(b) of the PCode Cap 17.p 17.
    
24. In effect, ttitioner had to be convicted of murder, or acquitted entirely. There was no room, on the evhe evidence, for a verdict of manslaughter.
    
25. There is nothing further to say regarding the constitutional point. The trial judge can hardly be criticised for not applying a law that was not yet in force.
    
26. That left for consideration only the new ground, arising out of the failure to interview the petitioner specifically in relation to the murder of the deceased. In support of that ground, and the petitioner’s claim that there had been "no proper committal" on a charge of murder (to which he could plead), the petitioner referred to R Newland (1988) 87 Cr App R 118; R v Lombardi (1989) 88 Cr App R 179 and R v O’Reilly (1990) 90 Cr App R. 40.
    
27. R v Newland involved a breach of the Indictment Rules whereby two unrelated groups of counts were joined in the same indictment. Before arraignment, the prosecution conceded that the indictment was invalid because of the misjoinder of disparate offences. However, it invited the recorder, against the objection of counsel for the accused, to order separate trials of the two groups of counts. The recorder acceded to that submission. The accused then pleaded guilty to a number of the counts and was sentenced to separate terms of imprisonment. He appealed against conviction on the ground that the indictment had been invalid by reason of the misjoinder of the counts. The Court of Appeal held that the power to sever an indictment could only be applied to a valid indictment. As there had been no valid trial, the pleas of guilty should be set aside, and the convictions quashed.
    
28. In R v Lombardi the accused was committed for trial on four charges of counterfeiting, contrary to the Forgery and Counterfeiting Act 1981 (UK). At his trial two indictments were filed, the first on the counterfeiting charges, and the second in relation to bankruptcy offences in respect of which there was ample evidence before the justices, but no charge and no committal. The bankruptcy offences could not be joined in the same indictment as the counterfeiting offences pursuant to r 9 of the Indictment Ruleis This was because they were offences of a different character. The trial judge rejected a submission that the second indictment did not comply with s 2(2) of b>Administrationation ofice (Miscellaneous Provisiovisions) Act 1933 (UK). That section required a person charged on indictment to have been committe trial for the particular offence alleged, or the indictmenctment to have been preferred by direction or with the consent of the judge. On appeal, the Court of Appeal held that the second indictment was invalid and should have been quashed.
    
29. R v O’Reilly was also a case involving misjoinder of counts in an indictment. The Court of Appeal held that the misjoinder of a count of burglary on an indictment alleging various counts of forgery meant that the pleas of guilty entered by the accused were a nullity, and that a new trial should be ordered.
    
30. It goes without saying that none of these cases had any bearing upon the petitioner’s particular grievance. His complaint was not one of misjoinder, but simply that he was not interviewed again by the police after the deceased had died. There was no question of his having been "committed" to stand trial on a lesser count than murder. He was committed on the two counts for which he ultimately stood trial.
    
31. It was for these reasons that the Court concluded that the petitioner had not established any basis for the grant of special leave to appeal, and ordered that the petition be dismissed.
    

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

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