Maya v State [2015] FJSC 30; CAV009.2015 (23 October 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA

[CRIMINAL APPELLATE JURISDICTION]

Criminal Petition No.CAV 009 of 2015
(Criminal Appeal No. AAU 0053/2011)

BETWEEN:

NOA MAYA
PETITIONER

AND:

THE STATE
RESPONDENT

CORAM : Hon. Chief Justice Anthony Gates, President of the Supreme Court
Hon. Mr. Justice Brian Keith, Justice of the Supreme Court
Hon. Mr. Justice Priyasath Dep, Justice of the Supreme Court

COUNSEL : Mr. J. Savou for the Petitioner
Mr. L. Burney for the Respondent

Date of Hearing : 9 and 12 October 2015
Date of Judgment : 23 October 2015

JUDGMENT OF THE COURT

Gates, P

1. I have had the advantage of reading in draft the judgment of Keith J. I agree with his lordship's judgment, its reasons and conclusions.

2. For my part, I reach the view that the assessors should be directed by the judge in his summing up that if they are not satisfied that the confession was given voluntarily, in the sense that it was obtained without oppression, ill-treatment or inducements, or conclude that it may not have been given voluntarily, they should disregard it altogether.

3. In Fiji the judge may admit the confession into evidence after the voir dire, and yet subsequently at the conclusion of the trial proper he or she may arrive at a different opinion. The defence may pursue in cross-examination in the trial proper the same issues of involuntariness in order to persuade the judge as well as the assessors of the rightfulness of such an allegation. The prosecution however bears the burden in the trial proper, as in the voir dire of proving that the confession was voluntary, and must do so to the standard beyond reasonable doubt, as with all other elements of proof required to prove the charge. The position in Mushtaq [2005] UKHC 25 is to be preferred to that of Chan Wei Keung v The Queen [1966] UKPC 25; [1967] 2 AC 160.

4. Where such litigation issues continue and remain alive into the trial proper, the judge's opinion on this important matter should be referred to in the judge's judgment following the tendering of the opinions of the assessors, irrespective of whether the judge conforms with those opinions or not [section 237(2) Criminal Procedure Decree]. In this way the decision of the trial judge on a crucial litigation issue can be known and understood by the appellate courts. This is another example of why it is highly desirable for a judge to write a short judgment explaining the basis for his concurrence or disagreement with the opinions of the assessors. At the end of the day, in Fiji the decision on guilt or innocence is entrusted to the presiding judge. The role of the assessors is to tender opinions to assist the judge. But they are not deciders of fact or ultimately of the verdict.

Keith, J

Introduction

5. The proper directions to be given to assessors when a defendant claims that a confession attributed to him by the police was extracted from him by ill-treatment has troubled the courts for a number of years. As long ago as 1967, the Privy Council held that it was not appropriate for a jury to be directed that if the jury thought that the defendant may have confessed his guilt as a result of such ill-treatment, the jury should disregard the confession altogether. Instead, the jury should take that into account in deciding what weight to attach to the confession. More recently, the House of Lords felt unable to go along with that. One of the issues which this appeal raises is what the law of Fiji should be on the topic given that trials take place in Fiji with assessors, not juries.
   

The course of the proceedings

6. The trial. The petitioner is Noa Maya. I trust that I shall be forgiven for referring to him from now on by his family name for convenience. He was charged with two other men with robbery contrary to section 293(1)(a) of the Penal Code. The prosecution's case was that at about 10.15 pm on 11 September 2007, three or four masked men broke into a private residence in Lautoka. At least one of them had a pinch bar. The occupants were asked where the safe was. When they said that there was not one, the men ripped the earings from the ears of a woman who was there, and took a number of other items worth over $9,000 in all before making their getaway.
   
7. Maya's two co-defendants pleaded guilty. Maya pleaded not guilty and his trial took place in the High Court. He was not legally represented. The evidence against him consisted substantially, if not exclusively, on the confession he was supposed to have made to the police. He challenged the admissibility of his alleged confession, and since its admissibility depended on facts which were in dispute, the trial judge held a voir dire. At the conclusion of the voir dire, the judge ruled that Maya's confession was admissible. The trial then proceeded in the presence of the assessors. In due course, the assessors unanimously expressed the view that Maya was guilty. The judge agreed, and gave judgment convicting him. On 12 May 2011, Maya was sentenced to 11 years and three months' imprisonment. The judge fixed the non-parole period which Maya had to serve before he could be released at 9 years. His appeal against both his conviction and sentence was dismissed by the Court of Appeal (Calanchini P, Waidyaratne JA and Jayasuriya JA) on 27 February 2015. He had been represented on the hearing of the appeal by Mr Jeremaia Savou.
   
8. The petition for special leave. Maya's petition for special leave to appeal to the Supreme Court was lodged with the Registry within time on 10 April 2015. It was not drafted as crisply as a lawyer would have drafted it, but three grounds of appeal against conviction were identified: (i) he had been denied his right to elect trial in the magistrates' court; (ii) he had been prejudiced at his trial by the fact that he had not been legally represented; and (iii) the judge had erred in the directions he had given the assessors about the way they should approach the evidence of his confession. The fact that he had been denied his right to elect trial in the magistrates' court was the only basis on which he was asking for special leave to appeal against his sentence: if he should have been tried in the magistrates' court, the High Court had had no power to sentence him.
   
9. Other documents lodged by Maya. A number of other documents were subsequently lodged with the Registry. One was lodged on 28 April 2015. Another which was dated 31 May 2015 was lodged on a date which is indecipherable. Another was lodged on 18 August 2015. And yet another was lodged on 24 August 2015. Mr Savou who represented Maya on the hearing of the petition for special leave told us that Maya was not relying on the contents of the document lodged on 28 April 2015, but that he was relying on the contents of the other three documents. They included a new ground of appeal against conviction, namely that the judge had erred in ruling that the alleged confession was admissible, and they included a number of new grounds of appeal against sentence. We propose to address each of those grounds.
   

The grounds of appeal against conviction

10. Ground 1: The venue of the trial. Section 3 of the Electable Offences Decree 1988 provided:
    

"No person charged with an offence under the Penal Code shall be entitled to elect to be tried before the High Court unless the offence with which he has been charged is an electable offence."

Maya claims that this provision entitled him to elect to be tried in the magistates' court. Since he did elect to be tried in the magistrates' court, the transfer of his case to the High Court on 11 February 2008 was a nullity.

11. This argument is misconceived. This provision did not give Maya the right to elect to be tried in the magistrates' court. It was about defendants having the right to elect to be tried in the High Court, and it limited that right to those who had been charged with an electable offence. Robbery contrary to section 293(1) of the Penal Code was such an electable offence. So section 3 gave Maya the right to be tried in the High Court. It said nothing about any right on his part to be tried in the magistrates' court. That was what the Supreme Court held in Segran Murti v The State [2009] FJSC at [10].
    
12. Moreover, at the time of the transfer of Maya's case to the High Court, the governing provision was section 220 of the Criminal Procedure Code. That provided:
    

"If before or during the course of a trial before a magistrate's court it appears to the magistrate that the case is one which ought to be tried by the [High] Court or if before the calling of evidence at a trial an application in that behalf is made by a public prosecutor that it shall be so tried, the magistrate shall not proceed with the trial but shall transfer the case to the High Court under Part VII."

The police officer who appeared for the prosecution on 11 February 2008 asked for the case to be tried in the High Court. On that basis, any election by Maya to be tried in the magistrates' court would have been ineffective.

13. Ground 2: Lack of legal representation. The fact that Maya was not legally represented at his trial was not a ground of appeal in the Court of Appeal, and the argument has never been developed. Presumably, the contention is that Maya had a constitutional right to legal representation, and that right was denied to him. That constitutional right at the time of his trial was contained in section 28(1)(d) of the 1997 Constitution which provided:
    

"Every person charged with an offence has the right:

....

(d) to defend himself or herself in person or to be represented, at his or her own expense, by a legal practitioner of his or her choice or, if the interests of justice so require, to be given the services of a legal practitioner under a scheme for legal aid."

14. This provision does not amount to an absolute right in every case to legal representation. The right to representation on legal aid only arises "if the interests of justice so require". In Waisake Navunigasau v The State [1997] FJCA 52, the Court of Appeal said that the availability of legal aid to persons charged with criminal offences, while most desirable, must ultimately depend on the ability of Fiji's economy to make adequate financial provision for such representation. I agree with that. Funds were limited at the time of Maya's trial, and the Legal aid Commission assessed both the defendant's means and the merits of his defence when considering whether to grant legal aid in a particular case. I share the Court of Appeal's misgivings about someone facing serious criminal charges not being represented, but the proviso about the requirements of the interests of justice is sufficiently wide for us to take into account the lack of public resources to fund a system of legal aid which gives legal aid to anyone who applies for it irrespective of the merits of their case. In these circumstances, Maya's constitutional right to representation was not infringed.
    
15. Ground 3: The admissibility of the confession. The prosecution's case in the voir dire was that Maya had voluntarily confessed to his participation in the robbery, both when he had been interviewed under caution and when he had been charged. He had willingly signed both the record of the interview and of what he had said when he had been charged to acknowledge that the contents of those records were correct. Maya's case was that he had not confessed to anything, that the accounts of what he was supposed to have said had been fabricated, that he had been beaten up and otherwise ill-treated by the police, and it had been that which had caused him to acknowledge that the records were accurate when they were not. That, at any rate, was the case which Maya put to the police officers when they gave evidence in the voir dire. However, he elected not to give evidence in the voir dire himself, and so there was no evidence from him to undermine or contradict the accounts given by the police. In those circumstances, it was not altogether surprising that the judge found that Maya had indeed confessed to his participation in the robbery, and that he had done so voluntarily.
    
16. The document in which Maya set out his challenge to the judge's ruling is the one lodged on 24 August 2015. It was not drafted as crisply as a lawyer would have drafted it, and it takes a little time to see what Maya was driving at. He contended, though, that there was no evidence supporting the evidence of the single officer who interviewed him, and that there was no evidence independent of the police which corroborated their accounts. He also referred to what he claims were inconsistencies in those accounts. These were issues for the trial judge to address and resolve, and although he did not refer to them in his ruling, there is no reason to suppose that he did not take them into account. The judge is not required to address every topic in a ruling of this kind.
    
17. In addition, Maya repeated an argument which the Court of Appeal rejected based on the fact that he had not been brought before a court within 48 hours of his arrest in breach of his constitutional rights. The problem with this argument is twofold. First, the trial judge did not find that there had been any link between the length of time Maya had been detained for and the making of the confession. Secondly, the right to be brought before a court within 48 hours of one's arrest is not an absolute one. If it is not reasonably possible to do so, he may be brought before a court as soon as possible thereafter.
    
18. Ground 4: The judge's directions to the assessors about the confession.

The directions which the judge gave to the assessors about the confession were as follows:

"[14] I direct you as a matter of law that if you believe that the Police did fabricate this interview and that none of the answers are his then you are to discard it and then find him not guilty. If you are not sure you will still find him not guilty.

[15] If, on the other hand, you find that he did give the answers contained in the record of interview and that he gave those answers willingly then the interview is evidence for you to consider in the normal way.

[16] If you find that they are his answers, but that they were given as a result of assaults or fear of further assaults then you will consider the interview but it is up to you how much weight you put on it according to the degree of assaults. It is all a matter for you."

There is nothing objectionable about what the judge said in paras 14 and 15. The problem relates to para 16. What is the appropriate direction to give to the assessors about how they should treat a confession which they are not sure was made voluntarily?

19. There have been two schools of thought in the common law world about this topic in the context of trial by jury. One is that jurors should be told that they should disregard the confession altogether if they are not sure that it was made voluntarily. After all, what weight can be placed at all on a confession which may have been made as a result of ill-treatment or oppression, or which may have been induced by a promise of some kind, and which made the suspect confess when he might otherwise not have done so? He may have been confessing his guilt, not because he was guilty, but, for example, because he wanted the ill-treatment to stop. The other school of thought takes as its starting point the fact that questions of admissibility of evidence are for the judge to decide, whereas the evaluation of such evidence as has been ruled admissible is for the jurors to make. If the judge is required to direct the jurors to disregard the confession if they are not sure that it was made voluntarily, that would be tantamount to the judge usurping the jurors' function of evaluating the evidence for themselves. On this school of thought, the appropriate direction is to tell the jurors that the weight which they should give to the confession is for them to decide. That is the school of thought which the Privy Council adopted in Chan Wei Keung v The Queen [1966] UKPC 25; [1967] 2 AC 160.
    
20. A different view has been taken relatively recently in England by the House of Lords. In R v Mushtaq [2005] UKHL 25, a majority of the House of Lords held that jurors should be directed to disregard a confession if they think that the confession may have been made involuntarily. However, two things informed their view. One was the terms of section 76(2) of the Police and Criminal Evidence Act 1984. The other was the right against self-incrimination implied in the right to a fair trial embodied in Art 6(1) of the European Convention on Human Rights. The right against self-incrimination is enshrined in section 14(2)(j) of the Constitution of Fiji, but there is no statutory provision in Fiji equivalent to section 76(2) of the Police and Criminal Evidence Act 1984. To that extent, the reasoning of the majority in Mushtaq does not apply to Fiji.
    
21. Which of these two schools of thought is to be preferred is less important in Fiji where the opinion of the equivalent of the jurors – the assessors – is not decisive. In Fiji, although the judge will obviously want to take into account the considered view of the assessors, it is the judge who ultimately decides whether the defendant is guilty or not. By then, of course, the judge will have ruled the confession to have been admissible. He will therefore have already found beyond reasonable doubt that it had been made voluntarily. If he remains of that view by the end of the case, the terms of the direction he gave to the assessors if they thought that the confession may have been made involuntarily is irrelevant. The problem will only arise if, in the course of the trial, the judge himself changes his original view about the voluntariness of the confession. Should he direct himself to disregard the confession altogether? Or should he direct himself merely to take the possibility that it may have been made voluntarily into account in the context of the case as a whole?
    
22. That problem does not arise in this case. Although the judge did not give reasons why he agreed with the opinion of the assessors, he would unquestionably have said something if had had changed his mind about the voluntariness of the confession in the course of the trial. So the correctness or otherwise of his direction to the assessors in para 16 of his summing-up could have had no impact on the eventual outcome of the case. Since it is unnecessary to decide in this particular case which of the two schools of thought should be adopted in Fiji, I would prefer not to do so, leaving it to be decided in a case in which it needs to be addressed, ie a case in which the judge changes his mind about the voluntariness of the confession in the course of the trial.
    
23. That does not give much help to judges about how to direct the assessors in the meantime. They are entitled to look to the Supreme Court for guidance. If that guidance can only be given by the Court expressing its provisional view on which school of thought should be adopted in Fiji, it seems to me that the Court should not shrink from expressing its provisional view on the topic. In my opinion, the school of thought adopted in Chan Wei Keung puts too much emphasis on the need to maintain clear demarcation lines between the respective functions of judge and jury, and we should adopt the position which says that a confession should be treated as valueless if it may be been made involuntarily. Judges should for the time being, therefore, tell the assessors that even if they are sure that the defendant said what the police attributed to him, they should nevertheless disregard the confession if they think that it may have been made involuntarily. I am not unmindful of the irony here. The judge will have to direct himself on these lines if he changes his mind about the voluntariness of the confession in the course of the trial. If he does that, there will never be case in which the issue which we have identified will come up for final determination. But that is sometimes the way things go.
    

The grounds of appeal against sentence

24. The only ground of appeal against sentence in the petition – namely that Maya was denied his right to elect trial in the magistrates' court – must fail in the light of what I have already said. That leaves the grounds of appeal against sentence referred to in the documents which Maya subsequently lodged. Two of those grounds can be disposed of relatively summarily. First, Maya contends that some of the features of the case which the judge treated as aggravating factors were not aggravating factors at all but elements of the offence. The judge treated four features of the case as aggravating factors: "(i) group invasion; (ii) brandishing (but not use of) pinch bars; (iii) an act of violence on the ears of a female in the house; (iv) invasion at night". The Court of Appeal agreed (as I do) that the first two of these factors were elements of the offence in section 293(1)(a) of the Penal Code, but took the view that the overall sentence which Maya got was not too long for what a man with Maya's record had done. I agree.
    
25. Secondly, it is contended that the judge did not give Maya sufficient credit for his time on remand. This point was not taken in the Court of Appeal. If it was, it did not feature in the Court of Appeal's judgment. The fact is, though, that for much of the time during which Maya was on remand for this robbery, he was on remand for another robbery. We cannot tell whether the judge was told how much time that was, and no-one provided that information to us. In the circumstances, we cannot say that the judge was wrong to apportion half of the time during which Maya was on remand to his time on remand for this robbery.
    
26. Maya's final ground relates to the non-parole period which the judge fixed. It is a little difficult to follow what he is saying, but we think it was this. On 11 September 2007 when Maya committed this offence of robbery, the court's power to fix a non-parole period under section 18 of the Sentencing and Penalties Decree during which the offender was not eligible to be released on parole had not been enacted. However, it had been enacted by 12 May 2011, which was the date on which Maya was sentenced, and the judge was, on the face of it, entitled to fix a non-parole period because section 61(1) of the Sentencing and Penalties Decree provides:
    

"A court hearing any proceedings for an offence which was commenced prior to the commencement of this Decree shall apply the provisions of this Decree if no sentence has been imposed on the offender prior to the commencement of this Decree."

Maya's point is that this course was not permitted because of section 3(2) of the Crimes Decree, which provides:

"If a person does an act which is punishable under this Decree and is also punishable under another Act or Decree or Promulgation or any other law of the kinds mentioned in sub-section (1), he or she shall not be punished for that act both under that Act or Decree and also under this Decree."

Since Maya was sentenced to a term of imprisonment for an offence of robbery under the Penal Code, he could not, he claims, also have had a non-parole period fixed in his case under the Sentencing and Penalties Decree.

27. One can admire the ingenuity of the argument. It suggests that some productive work goes on in prison. But the argument was not advanced in the Court of Appeal. Indeed, although it is in Maya's submissions to the Supreme Court, it was not addressed by the State in its written submissions. We would have liked to have had some assistance on the issue, but in my view the answer is that the fixing of a non-parole period did not amount to additional punishment of the kind which section 3(2) of the Crimes Decree sought to outlaw. It was the court's attempt to ensure that Maya would not be released from prison earlier than the court thought appropriate, whether on parole or by the operation of any practice relating to remission. Indeed, the court had had a similar power prior to the Sentencing and Penalties Decree: section 33 of the Penal Code had given judges the power to fix a minimum period of imprisonment which the offender had to serve, provided that the maximum term which the offender could be sentenced to was 10 years' imprisonment or more. The maximum term for an offence of robbery under section 293(1)(a) of the Penal Code was life imprisonment.
    

Conclusion

28. In my view, ground 4 of the grounds of appeal against conviction and the last of the three grounds of appeal against sentence raised questions of general legal importance which were sufficient to justify the grant of special leave to appeal on those grounds. In accordance with the Supreme Court's usual practice, I would treat the hearing of the petition for special leave as the hearing of the appeal, but for the reasons I have endeavoured to give, I would dismiss the appeal.

Dep, J

29. I agree with the findings and conclusions of Keith J.

Hon. Chief Justice Anthony Gates
President of the Supreme Court

Hon. Mr. Justice Brian Keith
Justice of the Supreme Court

Hon. Mr. Justice Priyasath Dep
Justice of the Supreme Court

Solicitors:

Office of the Legal Aid Commission for the Petitioner
Office of the Director of Public Prosecutions for the Respondent.