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Nagalu v State [2011] FJCA 12; AAU0003.2010 (21 February 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS

Criminal Appeal No.AAU0003 of 2010
(High Court Criminal Action No.177 of 2008)

BETWEEN:

EPARAMA NAGALU
Appellant

AND:

THE STATE
Respondent

Date of Hearing: Thursday, 10th February 2011

Counsel: Appellant in Person
Mr L Fotofili for the Respondent

Date of Ruling: Monday, 21st February 2011

RULING

1. On 9th February 2011 I heard an application for leave to appeal against conviction by Eparama Nagalu who appeared before me in person. Nagalu was convicted before Justice Temo and assessors on 2nd November 2009 of two counts of robbery and one count of unlawful use of a motor vehicle. Justice Temo on 18th December 2009 sentenced Nagalu to serve six years imprisonment. Nagalu no longer seeks leave to appeal against sentence.
   
2. The events in respect of Eparama Nagalu took place on the early morning of 20th September 2008. Three men purported to hire a seven seater hire vehicle and then hijacked the vehicle. The relief driver Anand Chand was asleep in the back. An individual member of this group held a screwdriver to the driver's neck and warned him not to resist. He did not resist; then the group stole his wallet and $33 cash. The driver was tied up and placed in the back of the van.
   
3. The group then turned their attention to the sleeping relief driver Anand Chand. They stole from them $133 cash and, which item became crucial in the evidence against Eparama Nagalu, his Alcatel mobile phone.
   
4. Eparama Nagalu gave evidence on oath. He was number 2 on the indictment. He was tried with Lote Serutalatala who faced seven charges only three of which were related to the events of 20th September 2008. Lote Serutalatala was acquitted.
   
5. It seems that there was no identification evidence of Eparama Nagalu being one of the three. When interviewed he made no admissions. An Alcatel phone had been seized from his home. He claimed in his caution interview that it belonged to him and that he had bought it from a genuine supplier. Later he had lost it.
   
6. So on the facts the only strand of evidence linking Eparama Nagalu to the robberies and unlawful issue of a vehicle on 20th September 2008 was the Alcatel Mobile Phone which was identified by Anand Chand as being the one stolen from him. In a second statement Chand said he identified the phone from a scratch.
   
7. The proposed grounds of appeal are that there should have been ordered separate trials, that the identification of a common make of mobile phone by Chand was unreliable. Also that Justice Salesi Temo did not give sufficiently clear and extensive directions in his summing up on the facts.
   
8. In my opinion there is an arguable case that there was a lack of evidence to justify a conviction of Eparama Nagalu. I believe that his individual grounds are also arguable. Mr Fotofili for the State conceded that there being an arguable case against conviction he was not opposing leave being granted.
   

The Orders

9. (1) The Appellant, Eparama Nagalu, is given leave to appeal against his convictions.
   

William Marshall
Resident Justice of Appeal