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Naisua v State [2013] FJCA 148; AAU0088, 96.2011 (12 July 2013)

IN THE COURT OF APPEAL
AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. AAU 0088 & 96 OF 2011

BETWEEN:

1. ROPATE NAISUA
2. SEREVI VANANALAGI
3. SAMUELA ROKOPETA
APPLICANTS

AND:

THE STATE
RESPONDENT

COUNSEL : Ms. N. Nawasaitoga for Applicants
Mr. M. Korovou for Respondent

Date of Hearing : 05 July 2013
Date of Ruling : 12 July 2013

RULING

[1] This is an application for leave to appeal against conviction pursuant to section 21(1) (b) of the Court of Appeal Act.

[2] On 2 August 2011, the applicants were tried in the High Court at Suva on an Information containing three counts of robbery with violence, one count of unlawful use of motor vehicle and one count of resisting arrest. On 17 August 2011, the learned trial judge delivered his summing up to the assessors. On the same day, the assessors returned with not guilty opinions in relation to all three applicants. On 19 August 2011, the trial judge delivered his judgment, convicting all three applicants on the respective charges they faced in the Information.

[3] The applicants separately filed their appeals in person. Subsequently, legal aid was approved and counsel has now filed two grounds of appeal in respect to all three applicants. The first ground reads:

The learned Trial Judge erred in law and in fact when he found the confessions of all the Appellants admissible despite some evidence of police brutality whilst they were in custody.

[4] When counsel for the applicants was asked to point out to the evidence of police brutality, she referred to the evidence of injuries contained in the medical reports of the applicants. The medical reports of the applicants were tendered in evidence by the prosecution and were exhibited as PE7, PE8 and PE9. Dr. Danford medically examined all three applicants. According to police, the applicants were referred for medical examination because they received injuries whilst resisting arrests. The history relayed to Dr. Danford by the applicants was that they were assaulted by the police. The history does not disclose that the applicants were assaulted while in police custody and during interrogations. The nature of injuries sustained by the applicants were bruises and swellings.

[5] In his voir dire ruling, the learned trial judge found the injuries contained in the medical reports were inconsistent with the evidence of the applicants. The applicants gave evidence of brutal assaults on them by the police during their interrogations. But the learned trial judge found the injuries were insignificant. For these reasons, the learned trial judge gave no weight to the injuries and accepted the evidence of the prosecution witnesses over the evidence of the applicants.

[6] Although it is not part of the learned trial judge's reasoning, it is clear from the State's case that the prosecution did not dispute the injuries contained in the medical reports of the applicants. The prosecution's case was that those injuries were sustained by the applicants when they resisted arrests and reasonable force had to be used to apprehend them. This finding was available on the evidence led by the prosecution.

[7] The Court of Appeal will be slow to disturb findings of fact and credibility made by a trial court unless satisfied that those findings were not open on the evidence. This principle was clearly explained by the Court of Appeal in Jai Ram & Others v State [Criminal Appeal No.AAU 0017 of 2004S] at paragraph [7]:

As is usual the voir dire turned entirely on questions of credibility which were for the Judge to assess. He made appropriate findings of fact, in essence accepting the evidence of the prosecution witnesses and rejecting the evidence of the appellants. The conclusions he reached were open on the evidence. As this Court said in Ajendra Kumar Singh v The Queen Criminal Appeal 46 of 1979, 30 June 1980 an appellate court should not disturb a judge's finding unless satisfied that a completely wrong assessment of the evidence has been made or the correct principles have not been applied.

[8] Based on the above principle, I am not persuaded the first ground is arguable.

[9] The second ground of appeal reads:

The learned trial judge erred in law and in fact when he overturned the verdict of the assessors without giving cogent reasons for the decision to do so in the following manner:

(a) Speculating upon the minds of the appellants in that the alleged offending were still fresh in their minds and they had no time to re-think their defences when there were no evidence to support this contention;

(b) Relying upon the opinion and findings of Doctor Danford which was inconclusive and thereby concluding that the Appellants were not credible; and

(c) Incorrectly stating that there was a burden on all the Appellants to make a complaint about police brutality.

[10] In the present case, the assessors expressed unanimous opinions that the applicants were not guilty of the charge. The learned trial judge did not agree with the assessors' opinions and found the applicants guilty. When a trial judge disagrees with the opinions of the assessors, he or she must then comply with section 237(4) of the Criminal Procedure Decree (previously section 299(2) of the Criminal Procedure Code). Section 237(4) states:

When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be –

(a) Written down; and
(b) Pronounced in open court.

[11] After the assessors had returned with not guilty opinions, the trial judge adjourned the case for two days to consider his judgment. On 19 August 2011, the trial judge delivered his judgment in writing in open court, convicting the three applicants of the charges against them. The trial judge was obviously aware of his obligation to give cogent reasons for differing from the opinions of the assessors. What was required of the learned trial judge was outlined by the Court of Appeal in Ram Bali v Reginam (1960-61) 7 FLR 80 at p 83:

In general, it is enough if, as in the present case, the Judge proceeds on cogent and carefully reasoned grounds bared on the evidence before him and his views as to the credibility of witnesses and other considerations.

[12] The trial judge's judgment consists of eight pages and twenty one paragraphs. The first eight paragraphs set out the law on the judge's obligations when disagreeing with the opinions of the assessors.

[13] In his judgment, the learned trial judge noted that the only incriminating evidence against the applicants was their confessions made under caution. He then went on to analyse all the evidence to determine the voluntariness of the confessions. This analysis can be seen from the following remarks of the learned trial judge:

Paragraph 10. I acknowledge the differing positions of the prosecution and the three accuseds on the issue of the voluntariness of their caution interview statements.

Paragraph 11. I also acknowledge the three accused's positions that they were assaulted and threatened while in police custody, and as a result, they involuntarily gave their caution interview and charge statements.

Paragraph 15. I therefore find as a matter of fact that Serevi Vananalagi confessed voluntarily to the crimes contained in Counts No.1, 2, 3, 4 and 5, and I find him guilty as charged on those counts.

Paragraph 18. I find as a matter of fact that Ropate voluntarily confessed to Counts No.1 to 4, when he was caution interviewed by police.

Paragraph 21. As a matter of fact, I find Samuela voluntarily confessed to Counts No.3 and 4 when he was caution interviewed and formally charged by police.

[14] Similarly, in his summing-up at paragraphs 24 and 38, the learned trial judge directed the assessors that before they could act on the applicants' confessions they have to be satisfied that the confessions were made voluntarily.

[15] In Tara Chand v Reginam 14 FLR 73 the Court of Appeal held that, where the judge has admitted a confession as being voluntary, it is not incumbent on him or her to direct the assessors to disregard it unless they in their turn are satisfied as to its voluntariness. The Court went on to say at page 81:

...the question of admissibility is the decision by the Judge and by him alone; and that, if he admits the confession, the sole question for the jury is as to its probative value or effect (or in other words, its truth). ...The jury's duty is to accept the confession as being admissible, and to consider only its protective value, though in considering that question, every matter of fact that might be relevant to the Judge's decision is relevant for consideration by the jury in deciding as to probative value, and may be fully canvassed for that purpose both in evidence and in argument.

[16] In Suresh Sani and Deo Raj v The State Criminal Appeal No. AAU0026 of 2004S (18 March 2005) the Court of Appeal said at paragraph [23]:

In a case where the judge's conclusion does not accord with that of the majority of the assessors, it would be wise specifically to state that the decision does not rely on the earlier evidence and is based on the evidence called before the assessors to make it clear both judge and assessors are basing their decision on the same evidence. That will be particularly important in a case such as this where the sole basis for differing from the assessors' opinions is the confessions whose admissibility has been the subject of the trial within a trial.

[17] In is clear from the learned trial judge's summing-up and his judgment that he did not consider the truth of the confessions before acting on them to convict the applicants. For the reasons given, I am satisfied that the second ground of appeal is arguable.

[18] Result

Leave is granted to all three applicants to appeal against their convictions on the second ground of appeal.

..........................................
DANIEL GOUNDAR
JUDGE

Solicitors:

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