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Rokopeta v State [2016] FJSC 33; CAV0009, 0016, 0018, 0019.2016 (26 August 2016)

IN THE SUPREME COURT OF FIJI AT SUVA

CRIMINAL APPELLATE JURISDICTION


CASE NUMBERS: CRIMINAL APPEAL NUMBERS:

CAV 0009 of 2016/CAV 0016 of 2016/

CAV 0018 of 2016/ and CAV 0019 of 2016

(Court of Appeal No.’s: AAU 0088/11 and AAU 0096/2011; AAU 0057 /2011)

(Suva High Court Criminal Case Number: HAC 0091 of 2010S)


BETWEEN: SAMUELA ROKOPETA

SEREVI VANANALAGI

IOWANE SALACAKAU

ROPATE NAISUA

PETITIONERS

AND: THE STATE

RESPONDENT

Coram: Hon. Justice Suresh Chandra, Justice of the Supreme Court.

Hon. Madam Justice Chandra Ekanayake, Justice of the Supreme Court.

Hon. Madam Justice Anjala Wati, Justice of the Supreme Court.


Appearances: 1st and 3rd Petitioners in Person.

Mr. J. Savou for the 2nd Petitioner.

Mr. Waqanibete for the 4th Petitioner.

Mr. S. Vodokisolomone for the Respondent.

Date of Hearing: Friday 12 August 2016.

Date of Judgment: Friday 26 August 2016.

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_____________________________________________________

JUDGMENT OF THE COURT


Chandra, J

  1. I have read the draft judgment of Wati, J and I agree with her reasons and conclusions that the petitions for special leave must be dismissed. The grounds that the Petitioners were allowed to raise do not meet the s. 7(2) threshold of the Supreme Court Act 1998 (“SCA”) for leave to be granted.
  2. The Petitioners were at the outset not allowed to argue new grounds. They all proposed to do so, on the basis that the Court has previously allowed other Petitioners to introduce new grounds in the Supreme Court. It is important that the issue of finality of litigation is respected. If a strict procedure is not followed, there will never be an end to matters in the final appellate Court.
  3. The Petitions for special leave must be dismissed.

Ekanayake, J

  1. I agree with the reasons and conclusions of Wati, J that the Petitions for Special Leave must be dismissed.

Wati, J

Background

  1. The petitioners were all charged in one indictment for various offences. Between the Petitioners there were five counts.
  2. The first Petitioner Samuela Rokopeta was charged for Counts 3 and 4. The second Petitioner Serevi Vananalagi was charged for all counts. The third Petitioner Iowane Salacakau was charged for Counts 1 to 4. The fourth Petitioner Ropate Naisua was also charged for Counts 1 to 4.
  3. The first count was robbery with violence contrary to s. 293(1) (b) of the Penal Code Cap. 17 (“PC”). It was alleged that on 6 January 2010, at Waimanu Road, Samabula the three Petitioners Serevi Vananalagi, Ropate Naisua and Iowane Salacakau robbed one Stephen John Paul of Toshiba laptob valued at $600, a Seiko wrist watch valued at $800, 2 x Men’s watches valued at $160, a Sony digital camera valued at $800, a GPS Receiver valued at $600, gold chain valued at $1000, all to the total value of $5960 and that immediately before and after such robbery did use personal violence on the victim.
  4. The second count was unlawful use of motor vehicle contrary to s. 292 of the PC. It was alleged that on the same day of 6 January 201o at Waimanu Road Suva, the Petitioners Serevi Vananalagi, Ropate Naisua and Iowane Salacakau unlawfully and without color of right but not so as to be guilty of stealing took to their own use a motor vehicle registration number DP 748 which belonged to Stephen John Paul.
  5. The third count was again robbery with violence. It was alleged that on the next day of 7 January 2010 at Niranjans Service Station at Walu Bay, all four robbed one Amit Prasad of cash $146, 7 x lighters valued at $23.25, assorted cigarettes valued at $189.75, a Digicel phone valued at $50, assorted recharge cards valued at $160, and a cash till valued at $65 all to the total value of $634.40 and immediately before and after such robbery did use personal violence on Amit Prasad.
  6. The fourth count was another robbery with violence. It was alleged that on the same day of 7 January 2010, the four Petitioners at Total Service Station, Vivrass Plaza robbed one Sanjiwan Sami of cash in the sum of $399 and immediately before and after such robbery used personal violence on him.
  7. The final count was only against Serevi Vananalagi. It was alleged that on 7 January 2010 at Korovou, after being lawfully arrested by police officers Samisoni Madigi and Joeli Rokorasei in due execution of their duty, Serevi Vananalagi resisted arrest.
  8. The 3rd Petitioner Iowane Salacakau pleaded guilty to all four counts for which he was charged. He was sentenced to 7 years imprisonment each for Counts 1, 3 and 4. He was also sentenced to 3 months imprisonment for Count 2. The sentences were ordered to run concurrently. The total sentence that Iowane Salacakau had to serve was 7 years. The trial judge also ordered a non-parole period of 6 years.
  9. The other Petitioners went to trial. All assessors unanimously found the Petitioners not guilty. The trial judge did not accept the opinion of the assessors and found them guilty and convicted them on the counts as charged.
  10. The first Petitioner Samuela Rokopeta was sentenced to 10 years imprisonment each for counts 3 and 4. The sentences were to be served concurrently. It was further ordered that he will not eligible for parole until he has served 8 years imprisonment.
  11. The 2nd Petitioner Serevi Vananalagi was sentenced to 13 years imprisonment for Count 1, 4 months’ imprisonment for Count 2, 10 months’ imprisonment for Counts 3 and 4, and 3 months imprisonment for Count 5. The sentences were to be served concurrently. It was further ordered that he will not eligible for parole until he has served 11 years imprisonment.
  12. The 4th Petitioner Ropate Naisua was sentenced to 13 years imprisonment for Count 1, 4 months’ imprisonment for Count 2, 10 years imprisonment for Count 3, and 10 years imprisonment for Count 4. The sentences were to be served concurrently. It was further ordered that he will not eligible for parole until he has served 11 years imprisonment.
  13. All the Petitioners who were convicted after the trial sought leave to appeal against their conviction to the Court of Appeal. The 3rd Petitioner who had pleaded guilty sought leave to appeal out of time against his sentence.

Prosecution’s Case

  1. The facts of the prosecution case are identified by his Lordship the trial Judge in paragraphs 15 to 19 of the summing up. I shall repeat that.
  2. On 6 January 2010, Stephen John Paul was at his home at 437 Waimanu Road. At about 9 pm, he was busy with his laptop in his sitting room. Suddenly Serevi Vananalagi, Ropate Naisua and another broke into his house. They threatened Stephen with a pinch bar and warned him not to resist. They tied Stephen up with electrical cords, and ransacked his house. They stole his properties itemized in Count 1. Before leaving his house, they took his car keys.
  3. They started his dark blue Subaru vehicle registration number DP 748 which was parked outside. They drove away in the same vehicle without Stephen’s permission. They shared the properties they stole from Stephen.
  4. On the next day, that is, 7 January 2010, Serevi Vananalagi, Ropate Naisua and another were driving around Lami in Stephen’s car. Samuela Rokopeta joined them. He sat with another in the backseat whilst Ropate Naisua sat in the front passenger seat. Serevi Vananalagi did the driving. They drove through Walu Bay towards Suva.
  5. They decided to rob Niranjan’s Service Station. Mr. Amit Prasad, a bowser attendant, was at the time manning the counter. Serevi Vananalagi drove DP 748 to the front door of the service station. Ropate Naisua and Samuela Rokopeta jumped out of the car and took their positions. Ropate Naisua and another went into the service station. They threatened Mr. Prasad with a pinch bar and stole the properties itemized in Count No. 3. They later fled in DP 748.
  6. They went up Edinburg Drive, up Princess Road, then Mead Road and then to the Bailey bridge. They then decided to rob Vivrass Total Service Station. At that time, Sanjiwan Sami, was working as a cashier, at the service station. Serevi Vananalagi drove the vehicle to the service station. Ropate Naisua, Samuela Rokopeta and another jumped out of the car. They took their positions. Ropate Naisua and another went into the shop, threatened Sanjiwan Sami with a pinch bar and stole $399 cash.
  7. They later fled in the vehicle. They went to Sawani to share the loot. They then went through Nausori towards Korovou, Tailevu. At Korovou town, the driver failed to stop when requested by traffic police officers.
  8. They were pursued by police to Waitoa settlement. At Waitoa, the vehicle DP 748 ran off the road. They fled the scene thereafter. Ropate Naisua, Samuela Rokopeta and another fled into the bush. Serevi Vananalagi fled on the road and boarded a bus towards Korovou. The bus was stopped by the police. The police boarded the bus and asked him to come out. He refused and resisted arrest. The police then took him out of the bus and took him to Korovou police station and locked him up in the cell.
  9. Ropate Naisua and Samuela Rokopeta were later captured by the police and locked at Korovou Police Station cell. They were later taken to Samabula Police Station. They were each caution interviewed by police. All three accused persons confessed to the crimes alleged against them. According to police, they voluntarily confessed to the crimes.

Proceedings in Court of Appeal


  1. The 1st, 2nd, and 4th Petitioners sought leave to appeal against their conviction. They raised two grounds of appeal before the single Judge. Leave was only granted in respect of the second ground which was:
  2. Hon. Justice Goundar granted the Petitioners leave on the ground that from the summing up and the judgment it was clear that the judge did not consider the truth of the confessions before acting on it.
  3. The third Petitioner had applied before the single judge for extension of time to appeal against his sentence. The 3rd Petitioner’s complaint was that his sentence was harsh and excessive for the reasons that he had entered an early guilty plea; he was a juvenile at the time he committed the offence; he was a first time offender; and that he had been in remand for 10 months.
  4. The single Judge found that although the issue of whether the Petitioner was a juvenile at the point of offending and how the judge dealt with some mitigating factors were arguable, that was not sufficient to grant leave. His Lordship said that the grounds must be such as to give rise to grave injustice if the appeal was not heard. Even if the grounds of appeal were upheld, it was not necessary that the sentence be reduced.
  5. His Lordship found that the Court has power to dismiss an appeal if satisfied that a proper exercise of discretion would have yielded the same result as that reached by the sentence. It was found that the community needs to be protected by such offences like robbery with violence and the sentence properly reflected the criminality involved.
  6. The Petitioners who were granted leave argued their matter before the Full Court. Their appeal was dismissed. The 3rd Petitioner renewed his application for leave before the Full Court which was dismissed on the grounds that there was no merits in his argument that he was a juvenile at the time of offending.

Application for Special Leave: The Grounds of Appeal

  1. Dissatisfied with the decision of the Full Court, the Petitioners filed a timely application for special leave against the said decision. For reasons of clarity I will indicate the grounds of appeal raised by each Petitioner.
  2. At the outset, I must say that none of the Petitioners who raised new grounds of appeal in this Court have been permitted to pursue the same. This Court has taken a strict approach in not allowing new grounds to be introduced unless it can be shown that:
  3. The Petitioners have not established the second and third limb of the above requirement although there are no issues about the availability of records to argue the case. The Court will thus concentrate only on the grounds which were raised in the Court of Appeal.
    1. Samuela Rokopeta
  4. Samuela Rokopeta filed his appeal on 2 March 2016. This was filed in time within the period prescribed for filing the appeal. He raised two grounds of appeal. Subsequently he filed his submissions on 9 August 2016 and raised two further grounds, one being a repetition of the ground in the first petition.
  5. The grounds collectively are as follows:
    1. “That the learned trial judge and the appellate court erred in failing to give astute cogent reasons in differing from the position of the assessors pursuant to s. 237 of the Crimes Decree.
    2. The learned trial judge and the appellate court erred in law in ruling the confession statement as admissible in Voir Dire ruling when:
      • (a) he failed to ascertain that the prosecution had failed to discharge the burden of proof to the injuries sustained whilst in the police station.
      • (b) insufficient weight and analysis were given to the medical evidence.
      • (c) he failed to satisfy that there were no general grounds of unfairness existed before and after the recording of the caution interview.
    3. That the learned trial judge failed to apply the correct legal test in determining the voluntariness of the caution statement in his voir dire”.
  6. Grounds 1 and 3 above were argued as one ground before the single Judge in respect of which leave was given. Leave was refused for ground 2. The Petitioner had however raised ground 2 before the Full Court again.
  7. This Court will therefore deal with all the grounds since the same was raised in the Court of Appeal.
    1. Serevi Vananalagi
  8. Serevi Vananalagi filed his petition on 3 March 2016. In that he raised 4 grounds of appeal against conviction.
  9. He subsequently through his submissions on 4 July 2016 raised some more grounds of appeal against conviction and sentence.
  10. Most of the grounds that the Petitioner raised were not raised before the single Judge and the Full Court. An attempt was also made in this Court to introduce the ground in respect of which the single Judge had refused leave. The Petitioner had the opportunity under the Court of Appeal Act to renew that ground before the Full Court. He failed to use that opportunity and he is therefore not permitted to raise those grounds in the second –tier appellate court.
  11. Leave was not sought for appeal against sentence either before the single Judge or the Full Court. This Court will therefore not allow any ground of appeal against the sentence.
  12. The Petitioner and his counsel Mr. Savou were informed that they will not be allowed to raise any new ground unless they could show cogent reasons why they chose not to address those grounds in the Court below and unless the grounds were very compelling on the special leave criteria.
  13. It could not be established to the satisfaction of this Court that there were proper reasons not to raise the grounds in the Full Court. A cursory glance of all the grounds indicate that they do not have any impact on the special leave criteria let alone it being compelling.
  14. The only grounds that the Petitioner was allowed to raise were that:
    1. Ropate Naisua
  15. Ropate Naisua filed his Petition on 8 March 2015. Subsequently his counsel Mr. Waqanibete raised two additional grounds of appeal. Most of the grounds raised by Ropate Naisua are also new grounds and not permitted to be raised.
  16. The only grounds in respect of which this Court will allow the Petitioner to argue his appeal are:
    1. “That the learned trial judge erred in law when he misdirected the assessors to consider and decide on the issue of voluntariness instead of the truth of the confession.
    2. That the learned trial judge erred in overturning the verdict of the assessors without giving cogent reasons”.
  17. I must say that Mr. Waqanibete also sought to introduce in this Court a ground which was that “the learned trial judge erred in law and in facts when he found the confession of all the appellants admissible despite some evidence of police brutality while they were in police custody”. The single Judge had refused leave on this ground and it is apparent from the judgment of the Full Court at paragraph 13 that the issue was not renewed.
    1. Iowane Salacakau
  18. The ground of appeal in respect of Iowane Salacakau is whether the Court of Appeal erred in law in not granting him leave to appeal out of time against his sentence on the ground that he ought to have been considered a Juvenile by the trial Judge under the Corrections and Service Act 2006 (“CSA”) when this legislation was not in force at the time of sentencing.

Analysis

  1. There are some common grounds amongst the Petitioners which I will address first. It will then remain for me to analyse one additional ground of appeal for the 1st Petitioner. The ground of appeal for the 3rd petitioner is unique from the rest and will be dealt with later.
  2. All the grounds of appeal have to be addressed in reference to s. 7 (2) of the Supreme Court Act 1998 (“SCA”) in that special leave will not be granted unless the grounds raise a question of general importance, a question of principle affecting the administration of justice, or a question which, if not dealt with, will cause substantial or grave injustice to the Petitioners.

(i). Powers to Differ from Assessors/Duty to provide cogent reasons

(ii). Directions on Confession


  1. The first common ground is that the trial Judge did not have powers to differ from the opinion of the assessors and when he did, he failed to give any cogent reasons.
  2. The first limb of the complaint by the Petitioners is that the Judge does not have powers to reject the opinion of the assessors. The second limb of the complaint is that the Judge did not provide cogent reasons why he rejected the opinion of the assessors.
  3. In respect of the first limb of the complaint, I direct my attention to s. 237 of the Criminal Procedure Decree 2009 (“CPD”). This provision of the CPD makes it clear that the Judge is not bound by the opinions of the assessors. It also states that if the Judge does not agree with the opinion of the assessors, the Judge shall give the reasons for differing with the majority opinion. The provision further says that the reasons shall be written down and pronounced in open court.
  4. The Summing Up in this case was delivered on 17 August 2011. The same day the assessors gave their opinions that all the accused persons are not guilty on all counts. The Judge then considered the view of the assessors in two days’ time and resumed Court on 19 August 2011. He wrote his reasons for differing with the assessors and pronounced his reasons in open court.
  5. The Court minutes of 19 August 2011 indicates “judgment read and given to parties”. The judgment of his Lordship contained the reasons for differing with the assessors. Whether those are cogent or not will be examined later save to say that there was full compliance with s. 237 of the CPD. In that regard the Petitioners complaint that the Judge lacked powers to reject the opinion of the assessors is bald.
  6. In Noa Maya v. The State [2015] FJSC 30; CAV 009. 2015 (23 October 2015] his Lordship Sir Keith, J said at paragraph 21:

“...in Fiji...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”.


  1. The observation of the Court of Appeal on an equivalent provision in Ram Dulare, Chandar Bhan and Permal Naidu v. Reginam [1956-1957] 5 FLR 1 (21 January 196) is pertinent:

“...It is clear that the legislature has given a trial judge the widest powers to accept or reject the opinions of the assessors sitting with him. These powers are discretionary. From the terms of the judgment, the learned trial judge made it quite clear why he came to his decision in this case and why he was unable to accept the opinion of the assessors...


In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a Jury in a trial. In the case of the King v. Joseph 1948, Appeal Cases 215 the Privy Council pointed out that the assessors have no power to try or convict and their duty is to offer opinions which might help the trial judge. The responsibility of arriving at a decision and of giving judgment in a trial by the Supreme Court sitting with assessors is that of the trial Judge and the trial Judge alone and in the terms of the Criminal Procedure Code, section 308, he is not bound to follow the opinion of the assessors...”.


  1. I think the determination on whether the trial judge gave cogent reasons for differing from the opinion of the assessors is important to examine. This requires me to examine the findings of the Full Court on its analysis of the decision of 19 August 2011.
  2. In the Judgment, the Judge acknowledged that he had the powers to differ from the opinion of the assessors and the requirements imposed on him by the statute when he so does. He notes that it his duty to decide the guilt of the accused persons and that should be based on the evidence. When his Lordship makes that statement at paragraph 7 of the summing up, he meant the totality of evidence which is the correct principle in law.
  3. After the voir dire hearing, if the trial judge is satisfied beyond reasonable doubt that the confessions were made voluntarily he may admit the same in evidence. In the trial proper, the defence is again entitled to raise the issue of voluntariness to see if the assessors in their turn are satisfied as to the voluntariness of the confessions. If the issue of voluntariness is a live issue, and at the end of the trial, the Judge changes his view on the issue of voluntariness, then he will have to direct the assessors to find whether the accused persons made the statements voluntarily. If they have not, then they must be told to disregard the caution interview: See Noa Maya (supra).
  4. I find that it is proper for the assessors to be directed that if they find that the statements were made voluntarily, they must then find whether the admissions are true.
  5. The Petitioners are vehemently complaining that the judge did not direct the assessors to consider whether the admissions are true and as a result the directions were improper. They invited the Court to paragraph 37 of the summing up.
  6. Paragraph 37 does indicate that the trial Judge did not direct the assessors to consider whether the admissions were in fact true. However, in view of the fact that the assessors returned a verdict of not guilty, the issue of misdirection does not arise. The Petitioners would have been entitled to raise this issue if the assessors returned an opinion of guilty on any count.
  7. The only issue that arises from the directions that his Lordship gave is: did he properly direct himself to consider whether the admissions were true and whether in fact he considered the admissions to be true?
  8. In the judgment his Lordship makes it very clear at paragraph 11 that he will direct himself in accordance with paragraphs 37 and 52 of the summing up. He also makes it very clear that the different positions taken up by the prosecution and the defence will have to be resolved by examining the credibility of each party’s witness. At paragraph 52 of the summing up, his Lordship also says that he will assess the credibility of each witness and make a finding on whose evidence is reliable.
  9. I find that although the judge does not specifically say that he will consider the truth of the matter, words to the like effect in his judgment makes it very clear that his Lordship did consider whether the admissions are true. He also considers other evidence that existed apart from the caution interview that assisted him to arrive at the decision.
  10. I will take each petitioner in turn and identify the reasons why he did not accept the opinion of the assessors. In respect of the first Petitioner Samuela Rokopeta, his Lordship made it very clear in paragraphs 19 to 21 of the judgment that it was for him to either accept the evidence of the prosecution witnesses being his arresting officer, interviewing officer and the charging officer or the evidence of Samuela Rokopeta and his witness.
  11. His Lordship made it clear that he did not believe the evidence of Samuela Rokopeta. In arriving at that conclusion his Lordship found that Samuela Rokopeta did not mention the names or the numbers of the Officers who beat him. He also did not inform the doctors what he said in the Court that his eyes were sprayed or he was kicked in the chest and fell on the floor. He was also found to be giving mixed versions when he was being cross-examined. He once said in his evidence that he was not assaulted at Korovou Police Station and when he was shown a letter he had written to the Court he changed his statement and said that he was assaulted at the police station. He did not complain to the Magistrate or the Judge about the assault.
  12. On the issue of credibility, the trial Judge found Samuela Rokopeta to be an evasive witness who was not forthright. The trial Judge found the prosecution witnesses credible.
  13. The Full Court of Appeal correctly stated that their duty was to analyse whether there was sufficient evidence to make a finding that the admissions made were true.
  14. Samuela Rokopeta had admitted in his caution interview that on 7 January 2010 he was in the vehicle when the robbery at two service stations had taken place. He admitted that the vehicle was chased by the police. The vehicle went off the road and all of them took to their heels. They had run into the bush in various directions and that he was later apprehended by the police from the bush with the help of the villagers.
  15. This evidence, as the Full Court found, was substantiated by the evidence of PW PC 2749 Taniela Yabakidrau and PW PC 2254 Alipate Rayasi. They testified how Samuela Rokopeta was arrested. This evidence of how he was arrested was not challenged by Rokopeta.
  16. PW PC 2749 testified that on 7 January 2010, he had arrested Samuela Rokopeta and Iowane Salacakau. Iowane Salacakau had pleaded guilty to the charges before the trial took place.
  17. PW PC 2749 testified that Samuela Rokopeta was arrested with the help of the civilians after the civilians warned him that he was trying to escape. The Officer said that he was searching the bush where the vehicle had been abandoned after it went off the road. PW PC 2254 gave evidence substantiating the version of PW PC 2749.
  18. The Full Court found that based on the evidence of the two police officers, it was open to the Court to find that the admissions made by Samuela Rokopeta in his caution interview were true. I do not find that the Full Court made any errors when it came to that conclusion.
  19. I now come to the 2nd Petitioner Mr. Serevi Vananalagi. In respect of Mr. Serevi Vananalagi, the trial Judge at paragraph 12 of the judgment said that he either had to accept the evidence of the prosecution witnesses who were his arresting and charging officers and Doctor Danford or the evidence of Serevi Vananalagi. He accepted the evidence of the prosecution witnesses.
  20. His Lordship said very specifically that he did not accept the evidence of Serevi Vananalagi as he was not forthright and very evasive. He said that he found that Serevi Vananalgi was not telling the truth.
  21. The Court of Appeal correctly, in my view, found that there was enough evidence from other witnesses who substantiated the confessions made by Serevi Vananalagi and based on that it was open to the trial Court to make a finding that the confessions were true in fact.
  22. Serevi Vanalagi had admitted that after the loot as described in the facts of the prosecution case, he was travelling in a car when the car was chased by the police. There was a change of drivers. At one stage they stopped the vehicle and ran away. He boarded a bus coming to Suva. The police had stopped the bus, boarded it and arrested him. He was taken to Korovou police station.
  23. PW SC 906 Mr. Joeli Rokorasei of Korovou police station testified in Court that on 7 January 2010 at 11 am, he was on traffic duty at Nawaiata Korovou along with others. He came across a vehicle registration number DP 748 which was travelling at a high speed to Korovou Town. They waived for the driver to slow down but he did not.
  24. The Officer gave further evidence that the driver drove towards them and they jumped to the other side of the road to avoid being hit by the vehicle. Following them was a Vinod Patel vehicle. They stopped his vehicle and requested for assistance. He looked at the occupants. He recognized Serevi Vananalagi and Ropate Naisua inside the vehicle. At that time Ropate Naisua was driving the vehicle and Serevi Vananalagi was sitting at the front passenger seat. He said that he knew them for the past 7 years when he was serving at Valelevu Police Station.
  25. When they reached Korovou Town, they saw DP 748 parked at Total Service Station. There was a change in the driver. Ropate Naisua who was in the front passenger seat came to the driver’s seat and Serevi Vananalagi went to the front passenger seat.
  26. They went and parked beside DP 748 and he approached the driver and told him not to move the vehicle. Despite that he drove towards Rakiraki. They phoned for police assistance. They called for an officer nearby to assist them. They followed them through Kings Road. The vehicle went off the road at Waito. The occupants jumped off the vehicle and fled. One occupant fled to the road. They followed him. He had boarded a Sunbeam bus. They stopped the bus and asked the driver whether anyone got in. The driver pointed at one boy sitting at the checker’s seat.
  27. The Officer said that he recognized Serevi Vananalagi. They tried to take him out of the vehicle but he resisted and tried to escape. They used reasonable force to arrest him. He was handcuffed and taken to Korovou Police Station. The search continued and Samuela Rokopeta was found hiding in the bush. The villagers handed him over to them.
  28. The evidence of SC 906 had been corroborated by PW SC 2243 Samisoni Madigi.
  29. Serevi Vananalagi did not challenge the evidence of the police witnesses as to how he was arrested in the bus.
  30. Given the evidence of the police officers, the Full Court correctly found that it was open to the Judge to accept that Serevi Vananalagi’s admissions were true.
  31. In respect of Ropate Naisua there was evidence of SC 906 as summarized above. He had seen Ropate Naisua in the vehicle when he was driving it and later when it was parked at Total Service Station when there was a change in the driver. PC 906 knows Ropate Naisua for seven years.
  32. Ropate Naisua was arrested by Waitoa villagers in the morning at 1 am. He was hiding in the bush. He was escorted to Korovou Police Station by DC 4226 Epeli. He was instructed to drive to Waito at 1am. He did with other police officers. He brought Ropate Naisua to Korovou police Station.
  33. The trial Judge found Ropate Naisua and his alibi witness being his defacto partner to be incredible witnesses. He was found to be evasive and not forthright in his evidence. His wife was also found to be a non- convincing witness and inconsistent in her version.
  34. I find that the Full Court was correct in analyzing that there existed other evidence based on which it was open to the Judge to make a finding that the admissions made by the Petitioner were true.
  35. The Full Court found that the trial judge had assessed the credibility of the witnesses and found the prosecution witnesses more reliable. The Petitioners were found to be unreliable and therefore their evidence was not believed. The Full Court found that this was a cogent reason to differ from the assessors.
  36. On the issue of directions on the truth of the admissions, although there were no specific directions given, there is no miscarriage of justice as there is ample evidence from the prosecution witnesses based on which it was open to the Court to make a finding that the admissions were true. Even if the Court had given the specific directions to consider the truth of the admissions, it would have reasonably come to the same conclusion.
  37. I find that the trial Judge had given cogent reasons based on credibility of witnesses which justified why he differed from the opinions of the assessors.
  38. I also find that although the Judge had not specifically said that he had to consider whether the admissions made in the caution interview were true, he did undertake that exercise. There was sufficient evidence from the prosecution to substantiate that the admissions were true and it was open to the trial judge to reject the opinions of the assessors.
  39. The grounds raised by the Petitioners are not issues that involve questions of general importance; or ones where a substantial question of principle affecting the administration of criminal justice is involved; or ones which need to be considered as substantial or grave injustice may otherwise occur”.
  40. The Petitioners are not in a position to satisfy the threshold in s. 7(2) of the Supreme Court Act to qualify for special leave on these grounds.

(iii). Admitting the Caution Interview in Voir Dire


  1. At the outset, I must say that the single judge had refused to grant any Petitioner leave on this ground. The first Petitioner had however renewed this ground in the Court of Appeal and the others had not.
  2. The singe Judge found that the Petitioners had given evidence of brutal assaults by the police. They had said to Dr. Danford that they were assaulted by the police but they did not say that it so happened whilst they were in police custody and during the interrogations. The Single Judge found that the nature of the injuries found by the trial Judge were bruises and swellings. The trial Judge said that the injuries were insignificant and that he could not find any evidence of brutal assault as complained by the Petitioners.
  3. The prosecutions explanation of the injuries were that they were sustained whilst they ran in the bush, tried to escape and resist arrest. The single judge found that it was available to the trial judge to make a finding not to accept the evidence of the Petitioners.
  4. The Full Court also found that the medical evidence given by Dr. Danford contradicted the evidence of the brutal assault they say they received at the hands of the police. The Full Court found that the medical evidence proved beyond reasonable doubt that the Petitioner’s had lied about the manner in which they were assaulted and it was open to the trial Judge to reject their evidence that they were assaulted.
  5. The medical evidence given by Dr. Danford in respect of Samuela Rokopeta in the voir dire hearing was that when the Petitioner came to him, he was calm, walked in normally and it could not be seen that he was in pain. The doctor said that Samuela had said that he was assaulted by police. Samuela Rokopeta had said that he was beaten on the sole by police. He said that he saw swelling on the Petitioner. He said that there were some injuries on the chest. It could be possible that it was as a result of the kick on the chest.
  6. The Petitioner at no point in time said to the doctor that he was beaten by the police whilst in their custody or interrogation.
  7. At the voir dire hearing, the Court found that the Petitioners version could not be accepted as they had stated that they were being brutally assaulted. The medical report did not reflect of any brutal assault. On the question of credibility, the prosecution evidence was accepted. The trial judge said:

“I have also carefully considered the prosecution’s witness evidence. I have looked to the three accused’s medical reports to find confirmation of the parties’ different position on the issue of whether or not the accuseds gave their statements to the police voluntarily. In my view, all accuseds described being seriously assaulted by the police, while they were in their custody. One would expect evidence of serious injuries on their bodies when they were medically examined. However the medical reports, in my view, described nothing serious. The medical reports themselves challenge the credibility of all the accuseds’ evidence, because it did not support what they were saying. ..”


  1. In my view too, the trial Judge had given sufficient explanation why he refused to accept the evidence of the Petitioner. In light of the inconsistency regarding the injuries sustained by him, it was open to the Judge to make a finding to the effect that the prosecution witnesses were telling the truth. The Supreme Court cannot disturb a trial judges’ findings on his assessment of credibility unless a completely wrong assessment was made.
  2. The ground does not satisfy the special leave criteria.

(iv). Was the third Petitioner a Juvenile?

  1. I now arrive at the issue of the 3rd Petitioners complaint that he is a juvenile under the CSA and therefore entitled to less severe punishment.
  2. The Full Court refused the application for leave to appeal on the grounds that Iowane Salacakau was not a juvenile when he committed the offence and when he was sentenced. The Court found that the new definition of Juvenile cannot apply to those who have been sentenced before 18 March 2011.
  3. Iowane Salacakau was born on 13 July 1992. He committed the offences charged for on 7 January 2010. He pleaded guilty on 10 September 2010. He was convicted on the same day and sentenced on 11 November 2010.
  4. The Petitioner was therefore 17 years 6 months old at the time of the offending and 18 years 4 months at the time he was being sentenced. The question is whether he was a juvenile when he committed the offence and when he was sentenced.
  5. The only competent law under which the trial Judge could consider this question was s. 2 of the Juveniles Act Cap. 56. S. 2 of the Juveniles Act stated that a juvenile meant a person who had not attained the age of 17 years and included a child and young person.
  6. Under the law applicable at the time of the sentencing, the trial Judge took into account the relevant law. Iowane Salacakau did not raise any appeal on this point that he was wrongly not considered a juvenile until 31 May 2011. He then had accepted the decision of the Court.
  7. He only decided to appeal when the CSA was declared by the Minister by a notice to come into force. The CSA had been passed by the House of Representative on 23 February 2006 and by the Senate on 17 March 2006.
  8. S. 1(2) of the CSA stated that the Act was to come into force on a date appointed by the Minister, by a notice in the Gazette. In accordance with his powers enshrined in s. 1(2) of the CSA, the Minister on 18 March 2011 by a gazette backdated the commencement to 27 June 2008.
  9. Two months after, seeing that the commencement date had been backdated, Iowane Salacakau lodged an appeal saying that since the Act has been backdated, that made him a juvenile when he committed the offence. He argued that he is therefore entitled to a less severe punishment under the 2013 Constitution of the Republic of Fiji.
  10. The Full Court arrived at a finding that the Petitioner was not entitled to the benefit of the new definition as he was sentenced before 18 March 2011. If he was not and his case was pending, the new definition would apply to him.
  11. The Full Court further found that if the legislature meant that all the cases which were determined should also be caught by the provisions, then the legislature would have said that in no uncertain terms.
  12. In arriving at its finding the Full Court relied on s. 18(3) of the Interpretation Act Cap. 7 which states that:

“Where a written law repeals...in part any other written law, then, unless a contrary intention appears, the repeal shall not: (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any written law so repealed or anything duly done...under any written law so repealed; or (c) affect any right, privilege,...accrued...under any written law so repealed; or (d) affect any penalty, ... or punishment incurred in respect of an offence committed against any written law so repealed; or (e) affect any...legal proceedings...in respect of any such...punishment...and any such legal proceeding...maybe...enforced..., as if the repeating written law had not been made”.


  1. The Court also emphasized that if such an interpretation were not upheld then a fundamental principle of justice would be affected in that there will not be finality to decisions.
  2. The Full Court then considered the submissions of the Petitioner when he relied on s. 14(2) (n) of the 2013 Constitution of the Republic of Fiji. S. 14(2)(n) states that “ every person charged with an offence has the right to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentencing...” Underlining is Mine
  3. The Full Court found that the definition of Juvenile had not been changed since the time of the offending and sentencing and so the Petitioner cannot have the benefit of the change in the law.
  4. The Full Court also stated that at the time of the sentencing, the Court could not grant a sentence which was not competent. It would not have been competent to pass a sentence which did not exist at the time.
  5. I find that the Petitioner has failed to establish that the Full Court was wrong in arriving at the finding in law. I find that the Court was correct in making a finding that if the Petitioner was not sentenced before 18 March 2011, he would be entitled to the benefit of the new definition of “juvenile”. I will add one more aspect which is that even the Petitioner’s appeal was not pending as at 18 March 2011 to make his case even an arguable one.
  6. The trial judge did not have jurisdiction to sentence the Petitioner with reference to a law which was not competent and existing at the time.
  7. I quote with approval Rabie JA’s dicta in S v.Crawford 1979 (2) SA 48 (A) (at 56B-C). His Lordship discussed whether the appeal Court had jurisdiction to grant the accused the benefit of the new law which not in existence at the time he was sentenced by the trial Court.

“...whether the amending provision is applicable to the present case. It seems to be clear, however, that the provision is not of application to the present case, and this Court cannot on appeal impose a sentence which would at the time of the respondent’s conviction not have been a competent sentence for the Magistrate to impose”.


  1. The Petitioner’s grounds of appeal does not meet the special leave criteria as a result his application for special leave must be dismissed.

Conclusion

  1. None of the grounds raised by the Petitioners meet the special leave criteria. The petitions for special leave must be dismissed.

ORDERS OF THE COURT


  1. The orders of the Court are:

(1). The petitions for special leave are dismissed.


.......................................................

Hon. Justice Suresh Chandra

Justice of the Supreme Court


.......................................................

Hon. Madam Justice C. Ekanayake

Justice of the Supreme Court


.......................................................

Hon. Madam Justice Anjala Wati

Justice of the Supreme Court


Solicitors

  1. 1st Petitioner in Person.
  2. Legal Aid Commission for 2nd Petitioner.
  3. 3rd Petitioner in Person.
  4. Legal Aid Commission for the 4th Petitioner.
  5. Office of the Director of Public Prosecutions.

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