Rokete v State [2022] FJSC 11; CAV002.2019, CAV003.2019, CAV004.2019 (29 April 2022)

IN THE SUPREME COURT OF FIJI
[CRIMINAL APPELLATE JURISDICTION]

CRIMINAL PETITION Nos: CAV 002; CAV 003 & CAV 004 of 2019
[On Appeal from Court of Appeal Nos: AAU 008/14;AAU 0035/14 & AAU 009/2014]

BETWEEN:

1. JOJI ROKETE

1^st Petitioner

2. JONETANI ROKOUA
2^nd Petitioner

3. JOSUA WAKA
3^rd Petitioner

AND:

THE STATE
Respondent

Coram: Hon. Mr. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Mr. Buwaneka Aluwihare, Judge of the Supreme Court
Hon. Mr. Justice Brian Keith, Judge of the Supreme Court

Counsel: Mr. J. Rabuku for the 1^st Petitioner
Ms. S. Ratu and Ms. T. Kean for the 2^nd Petitioner
Mr. M. Fesaitu for the 3^rd Petitioner

Mr. S. Babitu for the Respondent

Date of Hearing : 19 April 2022
Date of Judgment : 29 April 2022

JUDGMENT

Marsoof, J

1. I have had the advantage of reading the judgment of Aluwihare J in draft and the concurring judgment of Keith J in draft. I agree with the reasoning and conclusions of both judgments and the orders proposed by Aluwihare J.
   

Aluwihare, J

2. The petitioners, Joshua Waka [hereinafter Waka] Jonetani Rokoua [hereinafter Rokoua] and Joji Rokete [hereinafter Rokete] were convicted after trial in the High Court on counts of murder, robbery with violence and unlawful use of motor vehicle and were accordingly sentenced to terms imprisonment. All three petitioners challenged the convictions in the Court of Appeal without success. Aggrieved, all petitioners now seek special leave to appeal from this court through three separate applications.
   
3. Germane to these applications is a single incident on which the charges were framed. The petitioners jointly faced one trial before the High Court. In the circumstances, all three applications were taken up before this court in a single hearing and the court decided to deliver a common judgement. The grounds of appeal urged by the respective petitioners, however, will be considered and dealt with separately.
   

Jurisdiction of the court

1. Section 98 (3) (b) of the Constitution of the Republic of Fiji lays down that:
2. “The Supreme Court has exclusive jurisdiction, subject to such requirements as prescribed by written law, to hear and determine appeals from all final judgments of the Court of Appeal”.

100. Further, section 98 (4) of the Constitution stipulates that “an appeal may not be brought before the Supreme Court from a final judgment of the Court of Appeal unless the Supreme Court grants leave to appeal”.
     

4. Section 7 (2) of the Supreme Court Act (cap13) sets down the threshold, a party seeking special leave in a criminal matter has to meet. Section 7 (2) of the Supreme Court Act reads thus;
   1. “In relation to a criminal matter, the Supreme Court must not grant special leave to appeal unless;
      1. a question of general legal importance is involved.
      2. a substantial question of principle affecting the administration of criminal justice is involved.
      3. substantial and grave injustice may otherwise occur”.
         
5. The Supreme Court in Livia Lila Matalulu and another v. The Director of Public Prosecutions [2003] FJSC 2; (2003) 4 LRC 712 (2003) and Aminiasi Kotonivualiku [2003] FJSC 17; (2003) CAV 001/1999 [2003] has confirmed that the Court’s jurisdiction to grant special Leave ought not be invoked lightly. In the case of Matalulu [supra] the court held that; “The Supreme Court of Fiji is not a court in which decisions of the Court of Appeal will be routinely reviewed. The requirement for special leave is to be taken seriously. It will not be granted lightly. Too low a standard for its grant would undermines the authority of the Court of Appeal and distract this court from its role as the final appellate body by burdening it with appeals that do not raise matters of general importance or principle or in the criminal jurisdiction, substantial and grave injustice,”
   
6. In Aminiasi [supra] the court, in reference to section 7(2) of the Supreme Court Act has observed; “ It is plain from this provision that the Supreme Court is not a Court of criminal appeal or general review nor is there an appeal to the Court as a matter of right and, whilst we accept that in an application for special leave some elaboration on the grounds of appeal may have to be entertained, the Court is necessarily confined within the legal parameters set out above, to an appeal against the judgement of the Court of Appeal.”
   

BACKGROUND FACTS

7. The case for the prosecution was that four [accused] persons were part of a joint enterprise to rob the victim Vinod Dutt Sharma. On the night in question, 7^th September 2009 witness Tasvinder Singh [hereinafter also referred to as Singh] who happened to be a ‘carrier driver’ had driven the four persons to the vicinity of the house of the victim and had dropped them off. He had testified that it was Rokoua who arranged for the four of them to go to the location of the victim's house and that, at the point he dropped them off, one of them borrowed a shifter from him. After dropping them, Singh had returned to his base. The following day, Rokoua had approached Singh and offered to pay $200.00 as the hire. Witness Singh has testified that when Rokoua met him with the promise to pay the van hire, he had told the witness that the victim died when they tied a cloth around his neck.
   
8. The evidence revealed that the intruders had ransacked the house of the victim. In the process, it appears that the intruders had caused the death of the victim Sharma by suffocation.
   
9. At the trial before the High Court, Rokete, Waka and Rokoua stood as 1^st, 2^nd and 4^th accused respectively. Rokete testified and admitted the crime in his testimony, and the other accused Sanjeev Mohan, [3^rd accused], was acquitted on all counts.
   
10. At the conclusion of the trial, the three assessors returned a unanimous opinion that all the Petitioners, along with the accused that was acquitted, were guilty of robbery with violence and unlawful use of the motor vehicle. On the count of murder, however, two assessors returned an opinion that all the Petitioners plus the acquitted accused were guilty, while the remaining assessor found all four accused guilty of manslaughter.
    
11. The learned Trial Judge delivering the judgment convicted all three Petitioners on all three counts, however, acquitted the remaining accused of all counts against him.
    
12. Aggrieved by the judgment of the High Court, the three Petitioners appealed to the Court of Appeal. The Court of Appeal by its judgement dated 7^th March 2019 affirmed the convictions and the sentences imposed by the High Court.
    
13. The present Petitions for special leave to appeal arise from the judgement of the Court of Appeal referred to above.
    

The ground of appeal raised by the Petition of Josua Waka [CAV 004/19]

14. Waka had filed his initial grounds [of appeal] on 1^st April 2019. He filed amended grounds of appeal on 23^rd November 2019. Waka’s counsel informed the Court at the hearing that he would be relying only on the 1^st ground of appeal referred to in the amended grounds of appeal, filed on 23^rd November 2019 and grounds of appeal referred to in the submissions filed on behalf of Waka on 5^th August 2020.
    
15. The Grounds of appeal are;

[1] That the learned trial judge and the Court of Appeal failed in their duties to independently approach and asses the caution interview statement which had been obtained unfairly under authoritative circumstances.

[2] The Court of Appeal erred in not adequately and/or independently assessing the evidence in its totality in relation to the admissibility of Waka’s confession, having done so, the Appellate judges would have been satisfied that the learned trial judge had erred in admitting the Waka’s confession into evidence at the vior dire.

[3] The Court of Appeal erred in not carrying out an independent and/or adequate assessment on the finding of the trial judge in admitting Waka’s admission into evidence, considering the non-availability of the voir dire transcripts, thereby has caused a substantial miscarriage of justice to the petitioner.

[4] The Court of Appeal erred in not independently assessing the inconsistencies in the confessions, in determining the truthfulness of the material statements in the Waka’s caution interview statement that implicates Waka to the crime thereby causing a substantial miscarriage of justice to Waka.

16. I find the grounds of appeal (1) and (2) to be inter woven. I also note that they are fresh grounds of appeal that had not been raised before the Court of Appeal. Thus, those grounds would be dealt with together.
    

Appeal Grounds (1) and (2)

17. At the hearing of this application, it was contended on behalf of Waka that Wak had made clear allegations that he was assaulted by the police. He had also complained that he developed a chest pain as a result. The learned counsel pointed out that the failure on the part of the prosecution to explain the reason for calling a doctor to examine Waka, substantiates Waka’s position.
    
18. The learned counsel also pointed out certain discrepancies with regard to the visit of the medical officer. He pointed out that according to the police record, Dr. Joyce had visited the station to examine Waka at 12.11 pm and had left at 12.20 pm. The examination of the Petitioner by the medical officer, however, was absent from the record of interview.
    
19. What is significant however is that, Dr, Joyce had said in her evidence that she examined Waka on the 12^th September 2009, during her lunch break at Ba police station? He had complained of a chest pain. Her findings were that Waka had no visible injuries, he was normal and therefore she recommended that Waka was fit to be interviewed.
    
20. In my view it was open for the trial judge to conclude that the lapses or the inaccuracies of the police records with regard to the visit of the medical officer had no significant bearing on the issue of voluntariness. He was entitled to regard the medical evidence as negating the assertion by Waka that he had been assaulted.
    
21. Three days later, i.e. on 15th September, Waka had been examined by Dr. Dragon, who said in his evidence that Waka had no visible injuries. At pages 20 and 21[paragraph53] of his summing up, the learned trial judge had placed the version given b Waka before the assessors and had proceeded to remind the assessors that Waka did not have to prove anything and if the assessors thought what he had said was true or may be true, they would have to discard the caution interview and its confession.
    
22. In the case of D.P.P v Ping Lin [1975] 3 A.E.R 175, their lordships expressed the view that the court should not interfere with the trial judge’s ruling on the admission in evidence of the statement unless satisfied that the assessment of the evidence by judge was completely wrong or had failed to apply the correct principles.
23. I am of the view that Waka has failed to satisfy this court that the trial judge had failed to independently approach and asses the caution interview statement, or that the court wrongly assessed the evidence.
    
24. Considering the matters referred to above, I am of the view that Waka has failed to satisfy this court that any miscarriage of justice had occasioned based on grounds 1 and 2 referred to above.
    
25. The 3^rd ground of appeal is that, a substantial miscarriage of justice has been caused to Waka due to the non-availability of the voir dire transcripts.
    
26. The thrust of the learned counsel’s argument was that the Court of Appeal would not have been in a position to analyse the correctness of the ruling of the learned judge who held the voir dire, without the transcripts.
    
27. It was the contention of the learned counsel for Waka, that the Court of Appeal erred when it held that the voir dire ruling of the learned trial judge had not been wrong in assessment of the evidence led at the voir dire, and that the trial Judge had applied the correct principles when admitting Waka’s record of caution and charge interview statements as evidence.
    
28. The learned counsel further contended that, in the interests of justice, it is critical to carry out an adequate and independent assessment of the voir dire ruling and that the Court of Appeal was not in a position to meet this requirement due to the non-availability of the transcripts.
    
29. In support of this argument, the learned counsel relied on the observation made in the case of Sate v. Mototabua [2012] FJSC 14; “To decide the question as to whether there had been a correct exercise of the magisterial discretion, it would be necessary to have before any appeals court the full record of the proceedings in the trial court. Unfortunately, the only material from such proceedings submitted was the ruling of the magistrate. The record therefore was incomplete and inadequate. It would appear, the court officer of the Magistrates Court did not provide the record of the proceedings. Surprisingly, this was not referred to before”.
    
30. Although the court in the case of Mototabua [supra] made the observation referred to above, the court did not consider the impact of the absence of the record. That fact was also not taken into consideration when deciding the issues before the court.
    
31. This court observes that Waka has not pointed out any defects in the impugned voir dire ruling, including any misapplication of principles of law or procedural irregularities, relating to the admission of the confessions either in the course of the oral submissions or in the written submissions tendered to this court.
    
32. The voluntariness of the caution and charge interview statements went through the rigours of a second test at the main trial, independent to that of the vior dire. It is evident from the proceedings that during cross examination, Waka had made an endeavour to assail the evidence of the witnesses who testified on behalf of the prosecution, to establish his caution and charge interview statements were involuntary. Scrutiny of the voir dire ruling reflects that the same witnesses had testified at the trial and at the voir dire.
    
33. The learned trial judge in his summing up had directed the assessors to this effect; Mr Niudamu [counsel for the State] told you in his closing speech that I had already ruled these statements to be admissible. He had no right to say that. Those were different proceedings before this trial started. It is a matter for you to decide and not me. Whether the accused were assaulted or not can only be decided by you. If you find they were assaulted and oppressed you will discard the interviews and their evidence, if you find that you prefer the Police evidence that everything was done properly then you can regard the interviews as evidence and if you find the answers true you may act on them. [emphasis added]
    
34. From the above passage, it is clear that the learned trial judge had given clear and proper directions to the assessors that it is incumbent on them to decide as to whether the interviews were voluntary. From the opinions returned by the assessors, it appears that they in fact had held them to be voluntary.
    
35. There is, however, no complaint that the learned trial judge had committed any misdirection when directing the assessors regarding the admissibility of the caution and charge interview statements.
    
36. Taking into account the totality of the circumstances referred to above, I conclude that the non-availability of the transcript of the voir dire proceedings had not occasioned a substantial miscarriage of justice.
    
37. The 4^th ground of appeal raised by Waka was that the Court of Appeal erred in not independently assessing the inconsistencies in the confessions, in determining the truthfulness of the material statements in Waka’s caution interview statement.
    
38. This ground of appeal is also a fresh ground which was not raised before the Court of Appeal.
    
39. The learned counsel for Waka contended that there are several contradictions inter se when one considers the narrations given by the Petitioners in their respective interview statements. As far as the main incident is concerned, there does not appear to be any major differences in their respective narrations.
    
40. The discrepancies referred to by the learned counsel are not referable to any significant events but are trivial in nature, which can naturally occur when several people narrate an incident. One certainly cannot expect all person to have eidetic memory. When several persons are attending to a task, inconsistencies in accounts are inevitable and natural.
    
41. I am of the view that the 4th ground of appeal is bereft of merit and hold that no substantial miscarriage of justice has been caused to Waka.
    
42. For the reasons enumerated above I am of the view that r Waka has not established that any of the grounds of appeal urged in his application to this court has caused any substantial and grave injustice to him and accordingly special leave to appeal is refused.
    

The ground of appeal raised by the Petition of Jonetani Rokoua [CAV 003/19]

43. Nine grounds of appeal were raised on behalf of Rokoua which are as follows;
    

[1] That the Learned Judges of the Court of Appeal erred in law and fact in finding that the absence of a propensity/bad character warning had not resulted in a substantial miscarriage of justice together with its finding that the Petitioner’s character evidence could not have played a crucial role in light of the Petitioner’s alibi evidence which was not properly directed, that these findings lacked the consideration of the danger of bad character evidence and its detrimental impact towards the Petitioner’s right to a fair trial which in turn caused a grave injustice to the Petitioner.

[2] That the Learned Judges of the Court of Appeal erred in law and fact in not properly assessing the evidence of Tasvinder Singh and its belief given that the evidence at the trial stage warranted an accomplice warning to the Assessors or a warning/caution to the assessors in treating his evidence without any corroboration, as such hindered the Petitioners right to a fair trial which in turn cause a grave injustice to the Petitioner.

[3] That the Learned Judges of the Court of Appeal erred in law and fact in failing to properly consider the evidence of Tasvinder Singh and the allowance of his dock identification by the Learned trial Judge in the absence of a proper prior identification parade or proper foundation in terms of recognition during the trial and this, in turn, resulted in an unfair trial towards the Petitioner which in turn caused a grave injustice to the Petitioner.

[4] That the Learned Judges of the Court of Appeal erred in fact and law in failing to consider the Trial Judge’s failure to properly assess the evidence of Tasvinder Singh in stating that the Petitioner had said “... we tied a cloth around his neck” which is contrary to the evidence of Doctor Litia Tudravu (PW 24) as to the cause of death of the deceased and also the Trial Judge’s failure in considering this evidence by Tasvinder Singh as a reasonable finding to link the Petitioner to the offending which causes a grave injustice to the Petitioner.

[5] That the Learned Judges of The Court of Appeal erred in fact and law in

failing to properly consider the Trial Judge’s misdirection at Trial in stating in his Summing Up that “...if you accept the caution interviews of the 1^st, 2^nd, and 3^rd Accused, then you will know that the job was done by four people” which is contrary to the Common Law of holding admissions only admissible against its maker and consequently this raises a substantial question of principle affecting the administration of criminal justice and also caused a grave injustice to the Petitioner.

[6] That the Learned Judges of the Court of Appeal erred in fact and law in failing to properly consider the Trial Judge’s misdirection at Trial in stating in his Summing Up “to examine with care the evidence of Subashni Lata” and in doing so gave a warning to the Assessors on how to treat her evidence which unfairly placed the Petitioner’s case to the assessors which in turn resulted in the trial Judge failing to properly consider that her evidence affirmed the Petitioner’s contention that Tasvinder Singh had a motive in giving evidence against the Petitioner, which results in grave injustice to the Petitioner.

[7] That the Learned Judges of the Court of Appeal erred in fact and law in failing to properly consider the merits of each of the grounds of appeal argued above which was also argued at the lower Court and in their failure to do so raised the issue of the Counsel for the Petitioner’s failure to seek redirections after Summing Up, this, in turn, should not be a bar to considering the merits of the Petitioner’s appeal and holding it as a bar, resulted in a grave injustice to the Petitioner.

[8] That the Learned Judges of the Court of Appeal erred in fact and law in failing to properly consider the Learned Trial Judges failure in accepting foreseeability to the offence of Murder as being equivalent to having satisfied the mens rea towards the said offence when in fact foreseeability and having the mental element to satisfy intention are two completely different issues.

[9] That the Learned Trial Judge erred in law and in fact by misstating Subashni Lata’s evidence at paragraph 63 of the Summing UP when he gave the said direction, “He once told her that he had been asked by police to point out a person who was involved in the robbery and he had pointed out the fourth accused”. Such direction was factually contrary to Ms. Lata’s original evidence where she spoke of Mr. Singh, hatching a deal with the police to implicate the petitioner for non-prosecutions on drugs that was found on Mr. Singh’s vehicle and such misstatement of the evidence of Ms. Lata’s evidence caused a substantial miscarriage of justice.

44. Regarding the 1^st ground of appeal, it was contended on behalf of the Petitioner that the Court of Appeal erred in holding that the absence of propensity / bad character warning, had not resulted in a substantial miscarriage of justice.
    
45. (46) It was pointed out that bad character evidence was elicited in the course of the cross examination of Rokoua’s mother (Inise Naisua) who testified on behalf of the Rokoua. The learned counsel argued that paragraphs (a), (b), (c) of sub-section 7 of section 126 of the Criminal Procedure Act qualify the allowance of bad character evidence..
    
46. (47) I do not think that sub-section 7 of section 126 of the Criminal Procedure Act has any bearing on the instant case. The subsection is a general prohibition against directing questions to the ‘person charged’ or husband or wife tending to show that he or she has committed or been convicted of or been charged with any offence.
    
47. (48) Paragraph (b) of Subsection 7 of Section 126 of the Criminal Procedure Act relaxes this prohibition when a prosecution witness is subjected to cross examination to establish that the ‘person charged’ is of a good character.
    
48. In the case before us, witness Naisua was a witness for the defence (Petitioner). The purpose for which the said witness was summoned was to establish that Rokoua is her eldest son and that Bulou is the mother of the Petitioner’s 3 children and nothing more.
    
49. Under cross examination, the witness described Rokoua as a good person, who helped people and loved her and his siblings. It was at this point the State had questioned her about his previous convictions.
    
50. In all probability, the defence may have summoned witness Naisua to strengthen the presumption of innocence of Rokoua by establishing the improbability of the Rokoua engaging in the crimes alleged. As such, permitting the prosecution to demolish that evidence, in my view, cannot be held to have occasioned a miscarriage of justice.
    
51. As Cockburn C.J observed in the case of R v. Rownton 1865 C.L.W.C, 520: “Evidence of bad character is relevant if an accused person chooses to bring forward evidence of his previous good character and therefore it is not unfair that the prosecution should be allowed to demolish the evidence.”
    
52. It must be said that Rokoua chose to have evidence of his good character led or risked such evidence being elicited through a witness summoned to testify on his behalf. Considering the above, I see is no merit in the 1^st ground of appeal.
    
53. It was also argued on behalf of Rokoua that the laxity in the alibi direction, along with the allowance of the bad character evidence caused a miscarriage of justice towards Rokoua.
    
54. As I have already addressed the issues regarding the character evidence, I wish to consider whether there were directions given by the Learned High Court Judge regarding the ‘alibi’.
    
55. The learned trial judge had directed the assessors on the following lines regarding the alibi evidence “As with the third accused his alibi evidence is for you to consider in his defence. Jonetani [Rokoua] doesn’t have to prove anything to you but if you don’t believe the alibi then that does not necessarily make him guilty. But bear in mind that Jonetani has been consistent in his alibi ever since he was arrested”[emphasis added]
    
56. Rokoua in his evidence has stated that on the day in question, he had taken a bus from Vatulaulau and had come to visit his girlfriend at Nailaga. His evidence was that, after dinner, he spent the night on a settee. Further, his presence at Nailaga on the 7^th September was confirmed by his own witness Lusiana Sivo, who lives in Nailaga. She had said in her evidence that she met Rokoua at 7.00 pm. According to witness Tasvinder Singh, he had received the call that night from Nailaga, and in his own words “It was night, I am to come to pick job from Nailaga to drop them in Yalalevu”.
    
57. Rokoua’s girlfriend [de facto] Bulou Rabulu in her evidence had said that the Rokoua came to her place on the 7^th September, and around 11 pm they went to bed. Her evidence, however, was that between 12 midnight and 6 am the following day, she did not move around the house. Ironically, in the testimony of the Petitioner Rokete, who admitted the crime, has said that he left home and went to Yalalevu around midnight.
    
58. An alibi is not an exception to penal liability, but an evidentiary fact that has to be weighed in the balance with the prosecution evidence. If the evidence of alibi is not believed, it fails. If it is believed, it succeeds and the accused is entitled to an acquittal. If it is neither believed nor disbelieved, the accused would be entitled to an acquittal.
    
59. The purpose of placing evidence of an alibi is to make the coexistence of two facts physically impossible. In the case before us, the prosecution case is that the Rokoua was at the scene of crime [at the victim’s house at Nailaga] whereas the Rokoua asserts that he was sleeping at his girlfriend’s house which was also in Nailaga.
    
60. Upon consideration of all the evidence led at the trial it was open to the judge to conclude that Rokoua had been present at the house of the victim at the time the crime was committed.
    
61. It was also argued on behalf of Rokoua that the Learned Judges of the Court of Appeal erred in law and fact in not properly assessing the evidence of Tasvinder Singh and that his testimony warranted an accomplice warning to the Assessors.
    
62. Tasvinder Singh, had been engaged in driving a ‘carrier’ since 2008.As far as the incident in question is concerned, his role had been to pick four people and transport them from Nailaga to Yalalevu—a common occurrence for a professional carrier driver. There is no evidence whatsoever to say that he had had any complicity in the commission of the crimes that took place at the residence of the deceased.
    
63. According to his evidence he had dropped the four persons including Rokoua at the location requested by the passengers and returned to his base. His evidence is that he got to know about the death when a call came from Yalalevu.
    
64. The learned counsel for Rokoua pointed out that Tasvinder Singh was arrested by the police and was treated as a suspect. It was further submitted that the witness did not convey his suspicion to the police nor of the admission of the Petitioner Rokoua relating to the incident.
    
65. I find it difficult to agree with the learned Counsel for Rokoua. The matters raised by the learned counsel do not have the potency to convert a witness into an accomplice.
    
66. There is no material to suggest that Tasvinder Singh had any reason to falsely implicate Rokoua or that he entertained any animosity towards him. From the account given by the witness, it appears that Rokoua had been an acquaintance of the witness. That may have been the reason for his reluctance to reach out to the law enforcement, even if he had his suspicions regarding the conduct of Rokoua.
    
67. Accordingly, I reject the 2^nd ground of appeal.
    
68. As the 3^rd ground of appeal, Rokoua complains that the Court of Appeal erred in not giving due consideration to the dock identification of Rokoua. It was submitted that the Court of Appeal has failed to properly consider the evidence of Tasvinder Singh, particularly the dock identification of Rokoua by the Witness, sans an identification parade.
    
69. It is quite clear from the evidence of Tasvinder Singh that Rokoua was known to him. He had seen Rokoua on a regular basis for a considerable period of time. It is their acquaintanceship that would have prompted the Petitioner to contact Singh to have the transportation arranged.
    
70. Witness Tasvinder Singh had also said that, during the journey, Rokoua was seated in the front seat of the vehicle. Furthermore, the fact that he visited Singh on the 9^th September establishes without any doubt that both the Petitioner and the witness were known to each other. Tasvinder Singh’s evidence regarding the identification of Rokoua was never challenged under cross examination.
    
71. In the circumstances, this is not a fit case to apply Turnbull principles [R.V. Turnbull [1977] QB 224], I am also of the view that the facts did not warrant the holding of an identification parade. Therefore, I hold that there is no merit in the 3^rd ground of appeal.
    
72. As the 4^th ground of appeal, Rokoua complains that the learned Trial Judge failed to properly asses the evidence of Tasvinder Singh: In particular, what was told by Rokoua to Tasvinder. According to Tasvinder Singh, Rokoua had told him; “we tied a cloth around his neck”, which Rokoua asserts, is contrary to the cause of death of the deceased.
    
73. The argument of Rokoua is that the deceased died of suffocation and not due to strangulation. The statement of Rokoua referred to above appears to be a spontaneous response by Rokoua, when Tasvinder Singh queried from him as to how the man was killed. At this juncture Rokoua had reacted by saying, “he is a sick person. We tied a cloth around his neck and he died”.
    
74. It is unreasonable, to expect a Trial Judge to give directions to the assessors on every item of evidence that is led at the trial. The learned trial judge had given sufficient directions to impress upon the assessors that they are the sole judges of fact. Thus, the absence of a specific direction on the item of evidence referred to above, cannot be said to have resulted in any prejudice to Rokoua. I see no merit in the 4^th ground of appeal as well.
    
75. The Petitioner complained that the Court of Appeal erred when it failed to take into account misdirections on the part of the trial Judge. [5^th ground of appeal] The attention of this court was drawn to a passage in the summing up of the learned Trial Judge where he had directed the assessors: “If you accept the caution interview of the 1^st, 2^nd and 3^rd Accused then you will know that the job was done by four people.”
    
76. The point raised on behalf of Rokoua is that the admissions can be used only against the maker, and that the contents of a record of caution cannot be used against other co-accused. As such, it was argued that the issue raises a substantial question of principle affecting administration of justice.
    
77. It appears that Rokoua has taken that portion of the direction out of context. The Learned trial Judge, at the tail end of his summing up had reminded the assessors of the evidence led at the trial and had summarized the evidence.. The portion of the direction relied on by Rokoua is a part of that summary. The learned trial Judge, however, had given clear directions on how the contents of each accused’s confessions could be used.
    
78. At paragraph 44, the learned Trial Judge had directed the assessors in the following terms:

“I remind you in the strongest possible terms of something I said to you during the trial. The contents of each accused’s interview can only be used against that accused alone or not against any other accused that he might be talking about...”

79. The above direction in my view is the proper direction on the issue and would have left no ambiguity in the minds of the assessors as to how the record of caution should be evaluated and acted upon.
    
80. The 6^th and the 9^th grounds of appeal are alleged misdirections relating to the testimony of the witness Subashini Lata. As such I wish to address both grounds together.
    
81. It was contended on behalf of Rokoua, that the learned Trial Judge misdirected the assessors and himself when he stated in his summing up: “to examine with care the evidence of Subashini Lata”. The point the Petitioner appears to be raising is that: such a warning as to how to treat her evidence, might have caused the assessors to doubt her evidence, especially where no such warning was given by Singh’s evidence. [6^th ground of appeal] It was also pointed out that the learned trial judge misstated her evidence, when he said in reference to Lata’s evidence “He (Singh) once told her that he had been asked by the police to point out the fourth accused”, and the direction to this effect was factually contrary to her evidence.[ 9^th ground of appeal]
    
82. The Petitioner alleges that Singh had a motive to implicate Rokoua, and that Lata was summoned to testify to draw out the defence theory, that a plan was hatched by the Police to get Singh to implicate Rokoua.
    
83. When one considers the totality of the evidence led at the trial, it appears to me that the theory of “concocting a story” to implicate the Petitioner is a mere after thought.
    
84. As referred to earlier, there is no evidence of any animosity between the two. Although it had been suggested to Tasvinder Singh that he has an arrangement with the Police to give information and not charge protected by the Police, the witness had flatly denied this allegation.
    
85. Although witness Tasvinder was cross examined at length by the Counsel for the Petitioner Rokoua, the only question that was put to him was that the witness had an arrangement with the Police to give information, which the witness has denied.
    
86. At the hearing of this application, the attention of this court was drawn to the fact that witness Tasvinder had admitted that when one of them asked if he had drugs, he offered some and they smoked marijuana.
    
87. The witness did not shy away from the fact that he is an occasional smoker of the drug. He, however, refuted the suggestion that he deals in the drug or that he had ever been charged for a drug offence. As the learned trial Judge had correctly pointed out at paragraph 36 of the Summing Up; “the matters put to a witness which are denied are not evidence”, which is the correct law relating to suggestions.
    
88. It is not clear as to the objective of summoning Subashini Lata to testify on behalf of the Petitioner. She happened to be the ex-girlfriend of Tasvinder. Even in her evidence she said that he smoked [Marijuana] 4 times a week. As far as this witness was concerned, the only item of evidence she gave which might be compatible with the defence theory was that she had seen police officers talking to Tasvinder on many occasions.
    
89. Assuming that the direction complained of is improper, the evidence of Subashini Lata had made no contribution to establish the defence theory of “concoction”. As such I am unable to appreciate how the direction of the learned High Court judge would have prejudiced the case for the Petitioner.
    
90. What the witness Lata had stated in her evidence is that, Rokoua told her that, he [Tasvinder] had to point out one ‘Fijian guy’ from Nailaga and one year later he pointed out the 4^th accused [Rokoua] as the person police asked him to point out. [Emphasis added]. I must add that the manner in which the evidence had been led does not appear to be desirable. The parts of her testimony I have referred to here is scattered in her evidence but is the sum total on this point.
    
91. I have not dealt with the 8^th ground of appeal raised on behalf of Rokoua here. I have read the concurring judgement of Keith J in which his Lordship has comprehensively dealt with the issue raised in the said ground of appeal with which I fully concur. In the circumstances, I do not see the necessity to revisit the issue.
    
92. For the foregoing reasons I am of the view that the Petitioner Rokoua has not been successful in establishing that any of the grounds of appeal urged in this application has caused any substantial and grave injustice to him and accordingly special leave to appeal is refused.
    

The ground of appeal raised by the Petitioner Joji Rokete [CAV 002/19]

93. Rokete elected to give evidence at the trial and his evidence was that on the night in question, he entered the house of the deceased Vinod Sharma through a louvre and after entering the house he had looked inside and found money. In one of the rooms, he had seen the deceased lying on a bed. He had then placed a cloth soaked in chloroform on the nose of the deceased until the deceased became motionless. Then he had proceeded to tie a piece of cloth around his mouth. According to Rokete, after searching the house, he had driven off in the deceased’s car and had abandoned it at Waiyavi. He also said in his evidence that he removed the cloth that he had tied around the deceased’s mouth before he left. The medical officer who conducted the post mortem examination on the deceased’s body had observed a piece of cloth with a knot, around the neck of the body.
    
94. At the hearing of the Special leave to appeal application, the learned counsel submitted that he would focus only on the 3^rd and 4^th grounds in the submissions filed on 24^th July 2020.
    
95. The 3^rd and 4^th grounds of appeal are as follows;
    

Ground 3. The Court of Appeal erred in not carrying out an independent and/or adequate assessment on the finding of the trial judge in admitting the Rokete’s admission into evidence, considering the non-availability of the voir dire transcripts, thereby has caused a substantial miscarriage of justice to the petitioner.

Ground 4. The Court of Appeal erred in not independently assessing the totality of evidence, in doing so, would have held that the Petitioner is not guilty of murder.

96. The ‘Ground 3’ above is identical to the ground of appeal raised on behalf of Waka which I have dealt under paragraphs 26 to 37 of this judgment and as such I do not see any reason to address this issue again as those observations are applicable to the ground of appeal raised on behalf of Rokete.
    
97. The other ground of appeal canvassed on behalf of Rokete, was that the Court of Appeal erred in failing to assess the totality of evidence and if it had done so, would not have found Rokete guilty of murder.
    
98. Rokete’s position before this court was that he did not dispute the charge of stealing and driving away; however, he cannot be held guilty of murder for the reason that the evidence placed before the court did not warrant a conviction for murder but only for manslaughter.
    
99. The learned counsel for Rokete drew the attention of the court to his testimony where he had said “I put a cloth on his nose, did not do that to kill him, did it to make him sleep.”
    
100. The evidence of the pathologist, Litia Tudravu who performed the post mortem examination had said that she observed bruises, around the mouth, on his cheeks, left flank and bruises on the abdomen. In addition, she had also observed haemorrhages on the right eye. Thus, it appears that a certain amount of force might have been used to subdue the deceased. It was therefore open to the Judge to reject Rokete’s evidence that he had not intended to kill the deceased.
     
101. The 12^th and 13^th grounds of appeal raised in the Court of Appeal are the only grounds that touch this issue. They read as follows;
     

Ground 12 - That the learned Trial Judge erred in law and in fact by misdirecting the assessors on the elements of murder, causing a substantial miscarriage of justice to the appellant.

Ground 13 - That the learned Trial Judge erred in law in failing to give any direction to the assessors on the issue of malice aforethought causing a substantial miscarriage of justice to the Appellant.

102. In addressing these issues, the Court of Appeal had considered as to whether the learned trial judge had given sufficient directions to the assessors on the matters raised and referred to paragraphs. 25, 26, 27 and 28 of the summing-up of the learned trial judge which are as follows.
     

‘[25] Murder is committed when:

(i) The accused did an unlawful act;
(ii) That the act caused the death of the deceased;
(iii) That at the time of the act the accused:
(iv) Intended to kill the deceased; or
(v) Intended to cause him very serious harm, or
(vi) That he knew what he was doing would cause death OR

very serious harm, but went on to do it regardless.’

[26] An unlawful act is simply an act not justified in law, for example, punching, stabbing, strangling, suffocating are all unlawful acts.

[27] The second element the State must prove is that the unlawful act caused the death. In our case the pathologist has said that Vinod died from asphyxiation and suffocation and it would almost certainly have been caused by the gag around his nose and mouth. You might find that this cloth gag and the pressing of his mouth caused the death.

[28] The third element of murder to be proved by the State concerns the accused's intentions at the time of doing the unlawful act. As a matter of common sense, nobody can look into a person's brain to ascertain his intentions, however, intentions can be inferred from his physical actions and the surrounding circumstances’.

‘[30] If, however, you find that there was no intention to kill then you are entitled to find the accused persons guilty of manslaughter. Manslaughter is a lesser offence than murder. There must still be an unlawful act which causes death, but without the third element of intention to kill [emphasis added]

103. The Court of Appeal observed that, this is not an opportunistic robbery, but a well-planned robbery. It is clear from the caution interview of the appellant how he planned to rob the deceased. He may not have intended to kill the deceased, but it cannot be argued that it was not open to the Judge to conclude that contemplated and foresaw the probability of death or infliction of serious harm on the deceased in the execution of the robbery.
     
104. Considering the nature of the ground of appeal raised before the Court of Appeal and the manner in which it had approached the same, I cannot see the Court of Appeal falling into any error on this issue, as asserted by the learned counsel for the Petitioner.
     
105. Thus, I hold that the ground of appeal referred to, is bereft of any merit. As for the question malice aforethought, I have read Keith J’s judgment in draft, and I agree with what he has said on this topic.
     
106. For the reasons enumerated above I am of the view that Rokete has not established that any of the grounds of appeal urged in this application has caused any substantial and grave injustice to him and accordingly special leave to appeal is refused.
     

Keith, J:

107. I agree that these applications for leave to appeal should be refused for the reasons given by Aluwihare J, but I add a few words of my own (a) about a topic which has given rise to some confusion and (b) to explain my own approach to three of Rokoua’s grounds of appeal.
     
108. One of the complaints which all the petitioners make, albeit in different ways, is that the Court of Appeal erred in not independently assessing the totality of the evidence. That is a complaint one sees often in grounds of appeal. I am afraid that the complaint is based on a misunderstanding of what Marsoof J was saying in para 80 of the Supreme Court’s judgment in Ram v The State [2012] FJSC 12:
     

“A trial judge’s decision to differ from, or affirm, the opinion of the assessors necessarily involves an evaluation of the entirety of the evidence led at the trial including the agreed facts, and so does the decision of the Court of Appeal where the soundness of the trial judge’s decision is challenged by way of appeal as in the instant case. In independently assessing the evidence in the case, it is necessary for a trial judge or appellate court to be satisfied that the ultimate verdict is supported by the evidence and is not perverse. The function of the Court of Appeal or even this Court in evaluating the evidence and making an independent assessment thereof, is essentially of a supervisory nature, and an appellate court will not set aside a verdict of a lower court unless the verdict is unsafe and dangerous having regard to the totality of evidence in the case.”

109. Marsoof J’s observation about the appellate court having to evaluate the evidence and independently assess it has to be seen in its context. He was explaining what the appellate court has to do in its “supervisory” role. When the appellate court is independently assessing the evidence, it is doing so to satisfy itself, to use Marsoof J’s own words, “that the ultimate verdict is supported by the evidence and is not perverse”. In other words, the function of the Court of Appeal is to look at the totality of the evidence, and assess whether it was reasonably open on the totality of the evidence for the trial judge to conclude beyond reasonable doubt that the accused was guilty of the charge he faced. It is not part of the Court of Appeal’s function to consider for itself whether on the totality of the evidence the accused is guilty. That would be to usurp the function of the trial judge who saw the witnesses and was the person solely entrusted with determining the guilt or innocence of the accused.
     
110. I turn to the three topics in Rokoua’s case which I want to address. The first relates to the evidence of Rokoua’s bad character. The issue arose in this way. His mother was called to give evidence on his behalf. She said what a good person he was and how he helped people. I doubt whether that would have been sufficient to justify the prosecution applying to put the fact that Rokoua had previous convictions to her. What undoubtedly did justify the prosecution doing that was the suggestion made on behalf of Rokoua that one of the reasons why the court should find that Singh had been lying about him was because Singh was a drug dealer and was implicating Rokoua in the murder because he had agreed with the police to do that in return for the police not prosecuting him. In those circumstances, it would have been entirely appropriate for the court to know the character of the man making those allegations. For that reason, it was legitimate for the prosecution to ask Rokoua’s mother whether she knew whether Rokoua had previous convictions. It looks from the judge’s note of the evidence that she then volunteered that he had been to prison.
     
111. The only question then would be whether the judge gave the assessors, and therefore himself, an appropriate direction on how the assessors were to treat that evidence. The judge did not give the standard bad character direction that the evidence only went to Rokoua’s credibility and not to his propensity to commit murder. If the ultimate decision had been that of the assessors, that may well have been a problem, but the ultimate decision was that of the judge. He would have known that the fact that Rokoua had been to prison was not relevant to his propensity to commit murder, and was relevant only to the credibility of the attack he made on Singh’s credibility. In the circumstances, I would not regard the absence of the standard bad character direction as a sufficient reason for quashing Rokoua’s conviction.
     
112. The next topic relates to whether the judge should have given the assessors, and therefore himself, an accomplice warning. The police had originally arrested Singh on suspicion of robbery (though not of murder). They therefore suspected that he had driven the petitioners to the deceased’s home knowing that they were going to rob him. Indeed, although Singh was never charged, that suggestion was put to him in the course of the trial. Moreover, there was the allegation that Singh had done a deal with the police that he would give evidence implicating Rokoua in return for not being prosecuted himself. In those circumstances, I think that the judge should have warned the assessors to be cautious about Singh’s evidence bearing in mind that, on the defence case, he had his own interests to serve. But even though the law undoubtedly is that such a warning should be given when non-professional lawyers are the fact-finders, it is less plain that such a direction has expressly to be given by a professional judge to himself when he is the ultimate finder of the facts. First, the judge would have known of the need to give himself such a warning. Secondly, what he would be warning himself about would be no more than a statement of the obvious. The judge should have given such a warning to the assessors, and it would have been better if the judge had given this warning to himself, but his omission to do so was not fatal.
     

113. The final topic relates to one aspect of the judge’s summing-up on what the prosecution has to prove when the charge is murder. Aluwihare J has set out in his judgment the directions which the judge gave. One of those directions was that the petitioner whose case the assessors were considering had to have known that what he was doing would cause death or very serious harm, but went on to do it regardless. That direction amounted to a direction that, even if the petitioner did not intend to cause death or very serious harm, it would be sufficient to convict him of murder if he knew that death or very serious harm was a forseeable consequence of what he was doing. By making foreseeability of death or very serious harm an alternative to intending to cause either of those things, the trial judge was said by Rokoua’s counsel to have given a direction inconsistent with the well-known decision of the Supreme Court in the UK in R v Jogee [2016] UKSC 8. In Jogee, it was held that the courts had taken a wrong turn when they had equated intention with foreseeability. The test was still intention, with forseeabilty of death or very serious harm merely being of evidential value, albeit very considerable evidential value, in determining what the defendant’s intention had really been.

114. The correctness of Jogee has been widely debated in the common law world. It has not been followed in some jurisdictions. Unquestionably, the issue will arise at some stage for consideration by the Supreme Court in Fiji. We were told that the issue has already arisen in the Court of Appeal. But the issue does not arise in this case. The killing of the deceased took place while the Penal Code was in force, and the Penal Code required malice aforethought to be proved for a defendant to be convicted of murder. Section 202 provided that malice aforethought would be deemed as established if the defendant intended to kill or cause the deceased very serious harm, or if the defendant knew

“that the act or omission causing death would probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether grievous bodily harm is caused or not, or by a wish that it may not be caused.”

In other words, the Penal Code itself gave foreseeability of death or very serious harm as an alternative to intending to kill or cause very serious harm as the mens rea for murder. It follows that the judge’s direction was correct on the state of the law as it was at the time of the killing of the deceased.

Orders of the Court:

(i) Joji Rokete – CAV002/2019

1. Special leave to appeal is refused.
2. The judgment of the Court of Appeal dated 07^th March 2019 is affirmed.
3. The conviction and sentence imposed by the High Court will stand.
   

(ii) Jonetani Rokoua – CAV003/2019

1. Special leave to appeal is refused.
2. The judgment of the Court of Appeal dated 07^th March 2019 is affirmed.
3. The conviction and sentence imposed by the High Court will stand.
   

(iii) Josua Waka – CAV004/2019

1. Special leave to appeal is refused.
2. The judgment of the Court of Appeal dated 07^th March 2019 is affirmed.
3. The conviction and sentence imposed by the High Court will stand.
   

Hon. Mr. Justice Saleem Marsoof

Judge of the Supreme Court

Hon. Mr. Justice Buwaneka Aluwihare

Judge of the Supreme Court

Hon. Mr. Justice Brian Keith

Judge of the Supreme Court