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Varani v State [2014] FJCA 14; AAU0064.11 (26 February 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU0064 OF 2011
(High Court Case No. HAC070/10)

BETWEEN:

LEPANI VARANI
Appellant

AND :

THE STATE
Respondent

Coram : Goundar JA

Counsel : Appellant in Person
Mr. L. Fotofili for the Respondent

Date of Hearing : 19 February 2014
Date of Ruling : 26 February 2014

RULING

[1] After a four-day trial in the High Court, the assessors expressed unanimous opinion that the appellant was guilty of aggravated robbery as charged. The learned trial judge agreed with the assessors' opinions and convicted the appellant. On 19 May 2011, the appellant was sentenced to 9 years and 10 months imprisonment with 7 years as non-parole period.

[2] On 20 June 2011, the appellant filed a Notice of Appeal against conviction and sentence. The Notice is late by 1 day. The appellant informed this Court that he gave his Notice of Appeal on 14 June 2011, but by the time the Registry received it from the Department of Corrections, the appeal was late by 1 day. The Notice is dated 14 June 2011 and I find 1-day delay to be insignificant. I grant the appellant an extension of time till 20 June 2011.

[3] This appeal falls within the purview of section 21(1) of the Court of Appeal Act. The appellant is required to seek leave to appeal on grounds of mixed law and fact, or fact alone. He is also required to seek leave to appeal his sentence. The test for leave is whether the grounds are arguable before the Full Court.

[4] The appellant also applies for bail pending appeal. The test for bail is whether the appeal has every chance of success.

Conviction appeal

[5] The appellant advances 13 amended grounds against conviction. Some grounds overlap with the others. The numbering of grounds is incorrect. Nevertheless, I use the same numbers as used by the appellant to avoid any confusion for him.

[6] Under grounds 1, 2 and 3, the appellant contends the trial judge failed to direct himself that the burden to prove the voluntariness of a confession was on the prosecution and the standard was proof beyond reasonable doubt.

[7] After the conclusion of the voir dire, the trial judge gave a written ruling admitting the appellant's confession in evidence. As for the applicable law the learned judge directed himself at paragraph 2 of his ruling as follows:

"The Law in Fiji in his area is well settled. In Gangaram and Shiu Sharan v Reginam, Criminal Appeal No. 46 of 1983, the Fiji Court of Appeal said the following," .....it will be remembered that there are two matters each of which requires consideration in this area. First, it must be established affirmatively by the Crown beyond reasonable doubt that the statement were voluntary in the sense that they were not procured by improper practices such as the use of force, threats of prejudice or inducement by offer of some advantage – what has been picturesquely described as "the flattery of hope or the tyranny of fear". Ibrahim v R. (1914) AC 599. DPP v Ping Lin (1976) AC 574. Secondly even if such voluntariness is established there is also need to consider whether the more general ground of unfairness exists in the way in which the police behaved, perhaps by breach of the Judge's Rules falling short ov over bearing the will, by trickery or by unfair treatment.Regina v Sang [1979] UKHL 3; (1980) AC 402, 436 @ C-E. This is a matter of overriding discretion and one cannot specifically categorise the matter which might be taken into account..".

[8] It is clear from the above principles adopted by the learned judge that he had in his mind that it was for the prosecution to establish beyond reasonable doubt the confession was made voluntarily. This issue is not arguable.

[9] Under ground 4, the appellant argues that because the confession was incriminatory evidence, the learned judge violated his right against self-incrimination by admitting it in evidence. According to the appellant's record of caution interview, he was advised of his right against self-incrimination. He waived that right and gave a statement. The learned judge ruled the confession admissible after holding a voir dire. This ground is not arguable.

[10] Ground 6 deals with admissibility of a confession under section 78(1) of the Police and Criminal Evidence Act 1984. This is an English legislation which has no application in Fiji. This ground is not arguable.

[11] Grounds 7 and 8 complain that in the voir dire the trial judge received unsworn evidence from Sgt. Aminiasi Gauna who was a prosecution witness. Perusal of the trial judge's notes show that Sgt. Aminiasi Gauna gave sworn evidence after taking oath. This point is not arguable.

[12] Ground 9 basically states the trial was unfair because of the errors alleged under grounds 1 to 7. Since grounds 1 to 7 are not arguable, this argument fails.

[13] Ground 10 takes objection to the trial judge's directions that others who were allegedly involved in the robbery but were not charged was a matter that was of no concern to them. It was fair on behalf of the trial judge to direct the assessors not to concern themselves with others who were involved but not charged with the offence. This point is not arguable.

[14] Ground 11 takes an issue that the trial judge should not have directed the assessors on the facts which were not disputed by the parties. There is nothing wrong with the directions on undisputed facts. Such directions help the assessors to focus their determination on the disputed facts and the issues they have to consider. This ground is not arguable.

[15] Ground 12 alleges that the trial judge should not have told the assessors about the appellant's confession. The trial judge directed the assessors on the appellant's confession after determining its admissibility in a voir dire. There is nothing wrong with the manner in which the trial judge directed the assessors on the appellant's confession. This ground is not arguable.

[16] Ground 13 alleges that the prosecution failed to prove beyond reasonable doubt all the necessary elements of the charge. This is a very broad complaint. The prosecution proved the charge using the appellant's confession after the trial judge ruled it admissible. This ground is not arguable.

Sentence appeal

[17] The first ground is that the sentence is severe.

[18] The term of 9 years and 10 months imprisonment is clearly within the tariff for aggravated robbery in a contested case. This ground is not arguable.

[19] The second ground alleges that the trial judge failed to specify an effective date for his sentence. The effective date of the appellant's sentence is the date it was imposed, that is 19 May 2011. This date is stated in the sentencing remarks of the trial judge. This ground is not arguable.

[20] The third ground is that the trial judge erred in imposing a non-parole period of 7 years. The non-parole period is slightly more than two-thirds of the head sentence. The non-parole period is a matter for the trial judge's discretion. This ground is not arguable.

[21] The fourth ground is a repeat of the complaint that the non-parole of 7 years should not have been fixed by the trial judge.

[22] The fifth ground is that the trial judge erred in law in not informing the appellant his right of appeal after sentencing him. The trial judge has no obligation to inform the parties their right of appeal and in any event, the appellant filed a timely appeal against conviction and sentence. Obviously, he knew he had a right of appeal to this Court. This ground is not arguable.

[23] None of the grounds against conviction and sentence are arguable. Since I have reached this conclusion on the grounds of appeal, the application for bail must fail as well. The grounds do not satisfy every chance of success test.

Result

[24] Leave to appeal against conviction and sentence is refused. Application for bail is refused.

....................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL