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Tuimavana v State [2014] FJCA 135; AAU0076.2013 (6 August 2014)

IN THE COURT OF APPEAL
AT SUVA

CRIMINAL APPEAL NO. AAU 0076 OF 2013
(High Court No. HAC 92 of 2009)

BETWEEN:

KAMINIELI TUIMAVANA
Appellant

AND:

THE STATE
Respondent

Coram: Chandra RJA
Counsel: Mr. A. Vakaloloma for the Appellant
Mr. V. Perera for the Respondent

Date of Hearing: 23 July 2014
Date of Ruling: 6 August 2014

RULING

1. This is an application for leave to appeal against conviction and sentence.
   
2. The Appellant was charged with 12 counts of manslaughter contrary to section 198 and 213 of the Penal Code (Cap.17).
   
3. The Appellant was found guilty on all 12 counts after trial and was sentenced to 3 years imprisonment on all 12 counts the sentences to run concurrently the sentence was subject to a non-parole period of 2 years. The 12 counts being 12 distinct offences of manslaughter in that by omission he caused or contributed to the death of 12 passengers on a bus he was driving.
4. The Appellant had filed a notice seeking leave to appeal dated11th July 2013 setting out four grounds of appeal.
   
5. Written submissions had been filed on 26th June 2014 on those grounds of appeal.
   
6. The first ground of appeal is very vague and is on the basis of a miscarriage of justice regarding the failure of the trial Judge to direct the Assessors regarding the condition of the bus that was driven by the Appellant on the fateful day and has no merit.
   
7. The second ground of appeal is also on the same basis and the duty of care of the bus company which again has no merit.
   
8. The third ground is on the basis of failure to direct the Judge himself on the absence of evidence to satisfy the requirement of manslaughter against the Appellant as he was only a bus driver. This ground does not make sense as the charges were against the Appellant, the Bus driver, based on negligence. This ground too has no merit.
   
9. The fourth ground is on sentence stating that the sentence was harsh and excessive.
   
10. There were twelve counts against the Appellant based on the 12 lives that had been lost as a result of the bus catching fire while it was being driven and the driver not heeding to the requests of the passengers to stop the bus on which there had been evidence at the trial and the bus ultimately having gone out of control. The 3 year sentence which was subjected to a non-parole period of 2 years does not appear to be harsh and excessive in the circumstances of the case. Therefore leave is refused on that ground.
    
11. After the filing of the aforesaid written submissions the Appellant had filed a notice seeking bail pending appeal stating that he had already served one year of his sentence, that the appeal will be delayed and that there is a high likelihood of success of his appeal.
    
12. As leave is refused on the grounds of appeal urged by the Appellant, there is no need to consider the application for bail pending appeal, and the said application is refused.
    
13. On 4th July 2014 the Appellant had filed two additional grounds of appeal.
    
14. The first additional ground of appeal was that the learned trial Judge failed to direct the assessors concerning the physical state of the Appellant on the day of the accident. The learned trial judge had directed the Assessors adequately regarding the position of the bus and the circumstances in which the driver was placed and therefore there is no merit in this ground.
    
15. The other additional ground was that the learned trial Judge had failed to adequately direct the Assessors regarding the evidence of witness Luke.
    
16. The learned trial Judge had summarized the evidence of each witness including that of witness Luke in his summing up and placed their evidence before the Assessors adequately. There is no merit in this additional ground.
    
17. In the above circumstances leave to appeal and the application for bail pending appeal are refused.
    

Orders of Court

1. The application for leave to appeal is refused.
2. The application for bail pending appeal is refused.
   

Hon. Justice S. Chandra
Resident Justice of Appeal