PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Fiji

You are here:  PacLII >> Databases >> Supreme Court of Fiji >> 2011 >> [2011] FJSC 11

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Kean v State [2011] FJSC 11; CAV0015.2010 (12 August 2011)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA


CRIMINAL APPEAL NO: CAV0015/2010


BETWEEN:


GUSTON FREDRICK KEAN
Petitioner


AND:


THE STATE
Respondent


Coram: Hon. Justice Saleem Marsoof, Justice of the Supreme Court
Hon. Justice Sathyaa Hettige, Justice of the Supreme Court
Hon. Justice Daniel Goundar, Justice of the Supreme Court


Counsel: Petitioner in person
Ms N. Wickramasekera for the Respondent


Date of Hearing: Tuesday 2nd August 2011
Date of Judgment: Friday 12th August 2011


JUDGMENT


Background


[1] On 15 April 2008, after a trial, the petitioner was convicted of robbery with violence in the High Court at Suva. On 16 April 2008, he was sentenced to 11 years imprisonment with a minimum term of 9 years to serve. This sentence was made concurrent with a pre-existing sentence of 8½ years imprisonment imposed on 7 February 2008 by the High Court at Lautoka for two counts of robbery with violence and one count of shop breaking.
[2] The petitioner appealed against conviction and sentence to the Court of Appeal. On 25 November 2010, that appeal was dismissed.


Grounds for Special Leave


[3] The petitioner now seeks special leave from this Court to appeal against conviction and sentence. In the initial petition dated 29 December 2010, the petitioner advanced the following grounds:


1. The trial judge erred in law in directing the assessors on the proceedings and outcome of the voir dire regarding admissibility of the caution interview, and by doing so, prejudiced the petitioner.


2. The trial judge erred in law in failing to direct the assessors on Turnbull warning on identification evidence against the petitioner.


3. The minimum term imposed on the petitioner created disparity between the sentences imposed on the co-offenders.


4. The time spent in custody on remand was not taken into account by the trial judge.


[4] Later, the petitioner raised further grounds in his written submissions:


  1. The post charge delay breached the petitioner's constitutional right to be tried within a reasonable time.
  2. The trial judge was biased in proceeding with the trial after refusing to stay the prosecution.
  3. The trial judge erred in law in considering violence used in the commission of the robbery as an aggravating factor.

Facts


[5] The facts were that on the early hours of 12 September 2005, the petitioner forced his way into the home of the victim with a group of men after cutting the padlock on the burglar grill and smashing the door. The intruders were masked and armed with pinch bar, knife and gun. The victim, his wife and two sons, aged 12 and 13 years respectively, were threatened by the intruders. One intruder grabbed the victim's neck to prevent him from raising alarm. Another intruder suggested that they kidnap one of the victim's sons. The intruders ransacked the house and fled with $12,000 cash and other valuable items. The victim and his wife gave evidence that they were traumatized by the incident. The stolen items were not recovered.


Jurisdiction


[6] The jurisdiction of this Court is conferred by the Supreme Court Act 1998 (the Act). The jurisdiction is invoked by applying for special leave to appeal pursuant to section 7(1) of the Act. Subsection (2) provides that in criminal appeals, special leave must not be granted unless –


(a) a question of general legal importance is involved;


(b) a substantial question of principle affecting the administration of criminal justice is involved; or


(c) substantial and grave injustice may otherwise occur.


[7] Further, section 8 of the Administration of Justice Decree 2009 that mirrors section 122 of the Constitution provides:


(1) The Supreme Court has exclusive jurisdiction, subject to such requirements as prescribed by law, to hear and determine appeals from all final judgments of the Court of Appeal.


Final Judgment of the Court of Appeal


[8] The petitioner was represented by counsel in the Court of Appeal. The appeal to that court was confined to the grounds relating to voir dire, identification and disparity of sentence. The remaining grounds upon which the petitioner seeks special leave were not raised in the Court of Appeal and are new matters.


[9] The petitioner informs us that he had received inadequate assistance from his counsel at the hearing of his appeal in the Court of Appeal and that he was handicapped from raising these issues because his counsel did not visit him in prison to receive instructions from him.


[10] We are not convinced that the petitioner's reasons for not raising the new matters in the Court of Appeal are justified. Counsel would not have appeared in the Court of Appeal without his instruction. The petitioner was present during the hearing in the Court of Appeal. The petitioner appeared before us as an intelligent and well informed litigant. He must have known that his grounds of appeal in the Court of Appeal were limited and matters relating to delay and bias were not raised.


[11] It is not that the petitioner is now precluded from raising new matters that were not raised, but it is only in rare cases that the court will grant special leave on new grounds on which the petitioner has not sought the Court of Appeal's judgment. This Court pointed out in Josateki Solinakoroi v. The State CAV0005/2005S (8 June 2006), that the new grounds must carry a risk of serious injustice.


Delay


[12] When the petitioner was tried in the High Court in 2008, the right to be tried within a reasonable time was his constitutional right. The right to be tried within a reasonable time is also recognized by the International Covenant on Civil and Political Rights, Article 9(3). The right is enforced using reasonable standard.


[13] In Tevita Nalawa v. The State CAV0002/09 (13 August 2010) this Court pointed out that the enforcement of the right to be tried within a reasonable time will depend upon factors such as:


(a) The length of the delay;

(b) The reasons for the delay (including on the part of the accused, the judiciary, the prosecution or legal aid);

(c) The inherent time requirements of the case;

(d) The limitations on institutional resources (including the judiciary, the prosecution and legal aid);

(e) Any waiver by an accused of his rights;

(f) Acquiescence to delay by an accused;

(g) The effect of delay on the fairness of a trial;

(h) Any prejudice to the accused caused by the delay.


[14] When an accused alleges breach of his or her right to be tried within a reasonable time and applies for a stay of prosecution on the ground of delay, the trial court must first determine whether the delay is unreasonable, by taking into account various factors outlined in Nalawa's case. If the court finds the delay to be unreasonable, the court must then determine an appropriate remedy for the delay. A stay of prosecution on the ground of delay should not be granted unless the delay is an impediment for a fair trial.


[15] The petitioner seeks to supplement the court record by including the ruling of the trial judge refusing stay of the prosecution. He has erroneously labelled his application as an application for fresh evidence. The ruling of the trial judge on stay has already been included as part of the court record. Since the petitioner is unrepresented and raising delay as a ground of appeal, we will consider the ruling of the trial judge on stay.


[16] The petitioner was caution interviewed on the allegation on 6 October 2005. On the same day, he was charged with the offence of robbery with violence. However, the formal charge was not filed in the Magistrates' Court until 1 October 2007.


[17] On 1 October 2007, the petitioner appeared in the Magistrates' Court and elected a High Court trial. The learned Magistrate immediately transferred the case to the High Court. The Information by the Director of Public Prosecutions was filed on 19 October 2007.


[18] Numerous adjournments were granted by the High Court to allow the petitioner and his co-accused to secure legal representation. Eventually, on 20 March 2008, the case was set for trial on 7 April 2008. The petitioner immediately applied for a stay of prosecution on the ground of delay. The application was heard on 4 April 2008.


[19] From the date the petitioner was charged to the date he was tried, the delay was two years and six months. The trial judge for reasons not clear in his ruling calculated the delay commencing from 21 November 2005 and not 6 October 2005 the date on which the petitioner was charged. According to the trial judge's calculation, the delay was two years and four months. We find the difference of two months to be insignificant.


[20] The learned trial judge found that the petitioner was the author of the delay as he was granted bail by the police to appear in court on a subsequent date to answer the charge, but instead, the petitioner failed to appear in court and he gave the police an incorrect residential address. The petitioner was at large for almost two years before he was arrested on a bench warrant. The learned trial judge further found that the petitioner's broad assertion that his witnesses have migrated overseas and one has died was not substantiated with evidence.


[21] The learned trial judge considered the principles for stay of prosecution on the ground of delay and concluded that the delay was not unreasonable and that there was no prejudice to the petitioner in having a fair trial. The application for stay was refused by the learned trial judge and the trial commenced on 7 April 2008 as scheduled.


Bias


[22] The petitioner argues that bias arose from the learned trial judge's decision to refuse stay of the prosecution. In support of this ground, the petitioner submits that the learned trial judge failed to recognize breach of his constitutional right to be tried within a reasonable time and that he was prejudiced in having a fair trial due to unavailable witnesses.


[23] After the learned trial judge gave his ruling on stay, the petitioner did not apply for his disqualification. Even if the petitioner had applied for the learned trial judge's disqualification, the application would not have succeeded. The decision on stay was a pre-trial matter. The substantive matter was pending before the court and there is nothing in the ruling to suggest that the learned trial judge had pre-judged the charge against the petitioner. Nor is there any suggestion that the proceedings including the trial of the petitioner were not conducted fairly by the learned trial judge. In these circumstances, the petitioner is precluded from raising bias for the time in this Court.


Voir dire ruling


[24] At the trial, the prosecution led evidence of a confession made by the petitioner under caution to the police, after the learned trial judge had ruled the confession admissible in a voir dire. In his summing up, the learned trial judge directed the assessors that he had ruled the confession admissible. The petitioner contends that the learned trial judge erred in law by directing the assessors on his decision to admit the confession in evidence.


[25] We accept that the learned trial judge erred in law by directing the assessors on his decision to admit the confession in evidence, which he had made in the absence of the assessors in a voir dire. However, we agree with the conclusion reached by the Court of Appeal that the error has not caused miscarriage of justice. In his summing up, the learned trial judge quite correctly left the truth of the confession to the assessors after determining admissibility. The truth and weight of the confession was a matter for the assessors to consider after taking into account all the evidence.


Identification


[26] Apart from the confession, there was no direct evidence of identification linking the petitioner to the offence. However, there was circumstantial evidence led by the prosecution from witness, Vikash Ritesh Pal, that the petitioner and his co-accused persons came to his home on the morning of the alleged robbery with a bag of money and they used his house to share the money among themselves. One co-accused was Pal's cousin. Pal said the petitioner and his co-accused were in his house for about 15 minutes and that he was also given $40.00 by them.


[27] The circumstances under which Pal identified the petitioner were not fleeting glimpse. The petitioner was inside the house for about 15 minutes and Pal obviously knew the petitioner by his name. In these circumstances, the Court of Appeal concluded that there was no need to direct the assessors on Turnbull guidelines and in any event, Pal's identification evidence did not directly link the petitioner to the alleged offence. We agree with the conclusion reached by the Court of Appeal on this ground.


Disparity of sentence


[28] The petitioner was sentenced to 11 years imprisonment while his co-offenders were sentenced to 4 and 9 years imprisonment, respectively. In the case of the petitioner, an order was made that he serves a minimum of 9 years imprisonment. No minimum term was set for the co-offenders. The petitioner contends that the minimum term offends the parity principle as he is deprived of one-third remission under the Prisons Act while his co-offenders are entitled to such remissions.


[29] The fixing of a minimum term under section 33 of the Penal Code (now repealed) at the time the sentence was imposed was within the discretion of the learned trial judge. Unlike the co-offenders, the petitioner was already serving a sentence of 8 ½ years imprisonment for two similar home invasion robberies. To arrive at a sentence that reflected the criminality involved, the learned trial judge ordered the sentences to be served concurrently but with a minimum term of 9 years to serve. In effect, the petitioner received 11 years imprisonment with a minimum term of 9 years to serve for three separate episodes of home invasion robberies.


[30] The Court of Appeal concluded that the disparity between the sentences of the petitioner and the co-offenders arose from their different roles in the commission of the robbery and the different subjective features that were present in relation to each offender. We have considered the sentencing remarks of the learned trial judge and we agree with the conclusion of the Court of Appeal that the disparity was justified.


Remand period


[31] The time spent in custody while on remand is matter that is taken into account in sentence. While there is no reference made to the remand period in the sentencing remarks of the learned trial judge, we have concluded that the error cannot give rise to substantial and grave injustice in this case. The petitioner was involved in several cases and he has not provided any information to indicate the actual remand period that applied to this particular case. The remand period is a matter that may have been taken into account in other cases involving the petitioner.


Violence as an aggravating factor


[32] The use of violence in the commission of robbery is an element of the offence. We accept that elements of an offence ought not to be used as a matter of aggravation to enhance the sentence. In his sentencing remarks, the learned trial judge considered the use of actual violence on the victim as an aggravating factor. While there was an error in treating the use of violence on the victim as an aggravating factor, in our judgment, the error has not made significant difference to the sentence of 11 years imprisonment that was imposed on the petitioner.


Result


[33] For the reasons given, the petitioner has not established any ground to grant special leave to appeal.


[34] The petition is dismissed.


____________________________________
Hon. Justice Saleem Marsoof
Justice of the Supreme Court


____________________________________
Hon. Justice Sathyaa Hettige
Justice of the Supreme Court


____________________________________
Hon. Justice Daniel Goundar
Justice of the Supreme Court


Solicitors:
Petitioner in person
Office of the Director of Public Prosecutions, for Respondent


PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJSC/2011/11.html