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Delaibatiki v State [2011] FJCA 44; AAU0018.2007 (16 September 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.AAU0018 OF 2007 AND AAU0029 OF 2006
[High Court Criminal Action No. 10/05S]

BETWEEN:

1. PAULIASI DELAIBATIKI
2. ITOKO METUI
Appellants

AND:

THE STATE
Respondent

CORAM: Hon. Justice Daniel Goundar, Justice of Appeal
Hon. Justice Salesi Temo, Justice of Appeal
Hon. Justice Paul Madigan, Justice of Appeal

COUNSEL: Appellant & Applicant both in Person
Ms. N. Wickramasekera for the State

Date of Hearing: Friday, 2nd September 2011

Date of Judgment: 16th September, 2011

JUDGMENT OF THE COURT

[1] On the 3rd April 2006 the first appellant and the applicant were found guilty after trial in the High Court at Suva of one count of murder and were sentenced to the mandatory term of life imprisonment.

[2] The first appellant made a timely appeal against both conviction and sentence although an appeal against sentence cannot lie, it being a sentence fixed by law.

[3] The applicant appealed against conviction and sentence some nine months out of time and he was refused leave to appeal by the single Judge on the 4th November 2008.

[4] The applicant seeks to renew his application to appeal out of time before this court. The reasons he gives for being late to appeal are unsatisfactory, but as both he and the first appellant were convicted co-accused and given that they rely on virtually the same grounds of appeal, it is only fair that those grounds of appeal be considered and we therefore grant him leave to appeal out of time and he is now referred to henceforth as the second appellant.

[5] These two appellants were charged with three others with murder of Ashok Kumar on the 7th day of January 2003 at Samabula. One of their co-accused pleaded guilty to Robbery with Violence and was given immunity for murder in return for giving evidence at the trial.

[6] The facts elicited at trial were that the victim was a shopkeeper at Fulaga Street, Samabula. He lived with his wife and family nearby in the same street. On the 7th January he went as usual to the shop at 4.45am. His wife watched him enter the shop and then returned to bed. At 5.30am the bread delivery boy found his body lying on the shop floor with a pink scarf tied tightly around his neck and his legs tied. The wife was alerted and she went to the scene and tried to effect CPR to no avail. The shop had been ransacked with items including 14 DVDs and a DVD player missing. There was no dispute at trial that the shopkeeper had in fact died during the robbery, nor was it disputed that there was a robbery at the shop sometime between 4.45am and 5.30am.

[7] It was the unanimous opinion of the three assessors at trial that the first, second and third accused were guilty of murder (These appellants being the third and second accused respectively) and they were unanimous that the fourth accused was not guilty. The judgment of the court reflected this position and the 1st, 2nd, 3rd, accused were convicted, the fourth accused acquitted. The mandatory term of life imprisonment was handed down with no minimum term stipulated.

[8] The first appellant filed 8 grounds of appeal, with the assistance of experienced counsel appearing for him then on an application for bail pending appeal. The eighth ground relating to harsh and excessive sentence is discounted, the sentence not being appealable in law. His remaining grounds can be distilled into three grounds, namely;

(i) his alibi evidence was not properly dealt with either by the prosecution or the Judge, especially when it was in direct contradiction of the admissions in his caution interview.

(ii) Because the 4th accused was acquitted, the court should have also acquitted him because both he and the fourth accused had provided alibis.

(iii) The evidence of the immunity witness which implicated him was totally unreliable and inconsistent.

Alibi

[9] At trial the first appellant gave alibi evidence that at the time of the offence he was with his wife at her village of Nukui, Rewa.

He called his wife in support of the alibi. He had complied with all time limits in filing notice of his alibi evidence.

[10] In his written and oral submissions to the court the first appellant appears to be of the perception that once an alibi is raised, it is incumbent on the State to disprove it, and if they do not do so, then the trial Judge should direct the assessors that it is alibi evidence on which they can rely.

[11] The reason for Magistrates giving alibi warnings to accused persons and requiring them to file notice of alibi in advance is to give the prosecution time before trial to take whatever steps they wish to check the alibi. There is certainly no legal compulsion on the prosecution to rebut any alibi raised. When the alibi is a very general one, such as it is here ("I was at the village") it will not usually be possible to adduce evidence in rebuttal. It becomes yet another piece of evidence for the assessors to make a finding of credibility.

[12] The defence having been raised, and admittedly not rebutted, the Judge very fairly summed up the evidence of alibi and left it to the panel to evaluate. She said this:

"The 3rd accused said he knew nothing about the offence, and that on the 6th and 7th of January he was at this wife's village at Rewa where he had gone for Christmas and New Year....

.....The 3rd accused called an alibi witness, his wife Elenoa Turaganilevu. She said that on the 7th January 2005, the 3rd accused was with her at her village in Rewa. He therefore could not have been in Suva at that time".

She then further said

"In law all accused persons are given what is called an alibi warning in the Magistrates Court when they are first charged. They are warned that if they wish to raise an alibi, that they were somewhere else at the time of the offence, they should within 21 days of the warning, give the State the names, addresses and details of their alibi. This allows the State to conduct its own investigations into the alibi".

Towards the end of her Summing Up she said

"The question for you is firstly, do you accept his interview as being reliable? He has called an alibi witness to suggest that he could not have been at the scene on the 7th January and in his case alibi notice was given to the prosecution. Obviously, if he was not at the scene, his interview cannot be relied upon. But if his alibi is a false one, as the State alleges, you still need to ask yourselves if the interview contains a reliable version of the incident".

[13] It is difficult to imagine how the learned Judge could have left the issue more fairly to both the accused and the prosecution. Quite properly, it was entirely a matter for the assessors to make a finding on.

Mixed Verdict

[14] The first appellant submits that both he and the fourth accused raised alibis at trial; the fourth accused was found not guilty and acquitted and he therefore is aggrieved that he was in contrast found guilty. He says their defences were the same (both having admissions to Police and both raising alibis) and the verdicts should therefore have been the same.

[15] In actual fact, the defences of the first appellant and the fourth accused were not the same. The alibi raised by this appellant was a very general one, and that raised by the fourth accused was quite specific. The fourth accused said that he went with 2 friends to stay in a room at a hostel in Flagstaff. The 2 friends gave evidence in support, even to the extent of saying that he could not have left the hostel during the night because the main door was locked and the windows were barred.

[16] It was quite within the rights of the assessors to make different credibility evaluations of the two alibis and without knowing whether they did this or not, they have for reasons only known to themselves come to different opinions on the case of the first appellant and the fourth accused. In the final Judgment of the Court the learned Judge stated:

"This opinion (of not guilty) is possible on the basis that they place no reliance on his interview with the Police and reject the final version of the evidence of (the accomplice)"

[17] There was no reason whatsoever why the Judge would interfere with the two conflicting verdicts delivered up by the assessors.

[18] The first accused feels aggrieved that the fourth accused did not comply with the time frame for alibi notice (he providing details only three days before trial) whereas he did, yet the opinions were in his view inconsistent. The Judge quite fairly told the assessors this, advising them they had to, as a consequence, decide how much weight to put on the 4th accused's alibi evidence. She said

"In deciding what weight to put on the evidence of alibi, you are entitled to take into account the failure to give details of such alibi when the 4th accused was required to do so".

[19] The assessors then were appraised of the lack of proper procedure on the part of the 4th accused and were directed to take that into account when assessing weight.

The Accomplice Witness

[20] One of the first appellant's original co-accused was given immunity from prosecution for murder after he had pleaded guilty to Robbery with Violence. He gave evidence in the trial, evidence which can only be described as totally unsatisfactory. It was so inconsistent with his pre-trial statements that the learned Judge declared him hostile to the State. Therefore, not only was the witness hostile, he came with all the intrinsic impediments pertaining to any accomplice witness. Whereas he had named the first appellant and others in pre-trial statements, he refused to do so in court, and he even absconded during the course of his evidence.

[21] The Judge gave the assessors the strongest possible warnings on how to approach the evidence of a hostile accomplice. She said

"accomplices are persons involved in the crime with the accused.....For that reason, you must approach his evidence with the greatest care. This is because accomplices often have their own reasons for implicating or exonerating their fellows".

and later;

"as I have said, Are Amae was an accomplice and it is dangerous to convict on the evidence of an accomplice alone".

and finally

"When a witness turns hostile as this witness did, his evidence can be of very little weight because he is proven to have given inconsistent versions of the event before trial".

[22] It is quite clear that the assessors were given little option but to reject the evidence of the accomplice. They were properly directed nevertheless to look for corroboration evidence to support the accomplice's evidence, should they accept his evidence.

[23] As a final ground regarding the accomplice, the first appellant claims that the accomplice had met him some three years after trial in the presence of a Justice of Peace and a Senior Prison Officer. At that meeting, the accomplice is said to have confessed that he had only implicated the first appellant out of fear of being prosecuted for murder himself. The appellant also seeks to rely on an affidavit of the accomplice filed to support his application for bail pending appeal. In his affidavit he maintains that he implicated the first appellant out of fear after being threatened by a DPP Counsel involved in the trial.

[24] The court has never had sight of these documents, and no application was made to adduce them as fresh evidence. Even if such an application had been made we would have been persuaded by the decision of the High Court of Australia in Rattan v R [1974] HCA 35 to adjudge whether "The evidence is capable of belief and likely to be believed by reasonable men". In the light of the earlier difficulties the accomplice appears to have had with the truth, this is not an assessment we would have made, and admit the evidence.

[25] We do not accept that any of the grounds of the first appellant have been made out and we therefore dismiss his appeal.

The Second Appellant

[26] The second appellant has filed four grounds of appeal including one relating to sentence which we can not entertain; the sentence being a sentenced fixed by law. His first two grounds are one and the same, that is that there was no evidence whatsoever that he had malice aforethought or that he even had knowledge that the premises would be occupied. His third ground of appeal relates to the entirely unsatisfactory evidence of the accomplice witness.

[27] The evidence of the accomplice witness has been dealt with in detail above at paras 19-23 and the import of those paragraphs apply equally to this appellant.

[28] The ground of appeal relating to malice aforethought and lack of knowledge of occupancy of the shop unfortunately repudiates the law and principles of common enterprise. The second appellant in his interview under caution admits that he had planned with others to go to Samabula "to rob that Indian man"; and furthermore that the plan was to go "very early in the morning and for us to wait for him outside. When he open (sic) the shop then we attack and rob him". He then admitted that he himself "strongly tighten a scarf on his mouth until he stop struggling and the tone of his voice decreased". He then went on to describe the items stolen by the group from the shop.

[29] It was the evidence of the pathologist that the cause of death was not a ligature strangulation by the scarf. He testified that the neck was broken and that the injuries to the neck were consistent with manual pressure by way of manual throttling; that tremendous force had been applied to the neck, probably by more than one person.

[30] Despite the second appellant's claim of lack of malice aforethought, it is an undeniable fact that he embarked on this robbery with others, knowing that the shopkeeper was going to be there, and in the course of that robbery the shopkeeper died. The second appellant admitting that he was a party to immobilizing the shopkeeper, it was quite open to the assessors to find that his death was a probable consequence of the criminal enterprise and find him guilty.

[31] As Sir Robin Cooke (as he then was) said in the Privy Council case of Chan Wing-siu v R [1984] UKPC 27; [1985] AC 168, when talking of the liability of secondary parties "he should not escape the consequences by reliance on the nuance of prior assessment, only too likely to have been optimistic".

[32] The appeal of the second accused against conviction is also dismissed.

Hon. Justice Daniel Goundar
Justice of Appeal

Hon. Justice Salesi Temo
Justice of Appeal

Hon. Justice Paul Madigan
Justice of Appeal