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Vakatale v State [2014] FJCA 221; AAU0104.2010 (7 April 2014)

IN THE COURT OF APPEAL
On appeal from the High Court

CRIMINAL APPEAL NO. AAU0104 OF 2010
(High Court Case No. HAC 58 of 2009)

BETWEEN :

ROPATE VAKATALE
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. J. Savou for the Appellant
Ms M. Fong for the Respondent

Date of Hearing : 17 March 2014
Date of Ruling : 7 April 2014

RULING

[1] Following a trial in the High Court, the appellant was convicted of one count each of robbery with violence, criminal intimidation and resisting arrest. He was sentenced to a total term of 8 years' imprisonment with a non-parole period of 7 years. This is an application for leave to appeal against conviction and sentence.

[2] Section 21(1) of the Court of Appeal Act governs this appeal. Leave is not required on any ground which involves a question of law alone (subsection (a)). But if the question of law is frivolous, then a single judge has power to dismiss the appeal under section 35(2) of the Court of Appeal Act (Naisua v State Criminal Appeal No. CAV0010 of 2013).

[3] Leave is required on any ground which involves a question of mixed law and fact, or fact alone (subsection (b)). The test for leave is whether the grounds are arguable before the Full Court (Naisua's case). A single judge has power to grant leave (section 35 (1) of the Court of Appeal Act).

[4] Leave is also required to appeal against sentence (subsection (c)). The test is whether the sentencing court arguably acted under a wrong principle, mistook the facts, failed to take into account relevant matters, or took into account irrelevant matters in exercising the sentencing discretion (Naisua's case).

[5] The grounds of appeal against conviction are:

"1. The Learned Trial Judge erred in law and in fact in proceeding to trial with fore knowledge that the petitioner did not have the necessary disclosures to enable him to prepare adequately in his defence.

2. The Learned Trial Judge erred in law when he failed to properly assist the petitioner as a result of his unrepresented status by failing to direct the assessors and himself on the following matters:

1. The petitioner was unable to re-direct the Trial Judge following summing up as a result of his unrepresented status;
   
2. The petitioner was unable to challenge the alleged confessions contained in the caution interview as a result of his unrepresented status;
   
3. The petitioner was unable to challenge the tendering of the carbon copy of the caution interview.
   

3. The Learned Trial Judge erred in law and fact when he allowed the carbon copy of the caution interview to be tendered as evidence in absence of a formal enquiry.

4. The Learned Trial Judge erred in law in convicting the petitioner in the absence of corroborating evidence independent of the alleged confessions contained in the caution interview."

[6] The ground of appeal against sentence is:

"The Learned Trial Judge erred in law when he imposed a non-parole period when the imposition of the non-parole period offended against the remission as allowed in the Prisons and Corrections Act 2006."

Conviction appeal

Disclosure

[7] Ground one involves a question of mixed law and fact. Leave is required. The appellant was formally charged on 10 June 2009. On 29 June 2009, his case was transferred to the High Court. The Information was filed on 28 July 2009. The appellant was served with the full disclosures, but when he applied for legal aid, he gave his disclosures to the Legal Aid Commission.

[8] The trial commenced on 4 October 2010. According to the trial judge's notes, the appellant informed the court that his disclosures were with the Legal Aid Commission. The trial judge stood down the case and directed the appellant to be escorted to the Office of the Legal Aid Commission to obtain his disclosures. When the trial resumed, the appellant made no further complaint to the trial judge regarding disclosures. Also, the appellant had more than a year to prepare for his defence. If the appellant was not prepared after a year, then that was his own making. Other accused persons were charged with the appellant. Like the appellant, the co-defendants were entitled for a speedy trial. The trial judge had to balance all these factors to exercise his discretion not to postpone the trial any further. In any event, the judge's notes do not reflect that the appellant represented himself without his disclosures or was not adequately prepared.

Lack of legal representation
[9] Counsel for the appellant submits this ground involves a question of law alone, and therefore, leave is not required. I disagree. If the question was whether the appellant had a right to counsel, then I would have accepted that that involves a question of law alone. The right to counsel is settled. It is not an absolute right. The appellant was accorded his right to counsel but he was unsuccessful in securing the services of a lawyer. The trial judge proceeded with the trial because there was no realistic prospect that the appellant was going to have counsel representing him at the trial. The appellant argues he was prejudiced in three areas due to his unrepresented status. Firstly, the appellant was unable to seek any re-directions. This complaint assumes that the trial judge's summing up contained errors and the appellant was unable to seek re-directions. The trial judge was only obliged to give a fair, balanced and accurate summing up on the law and evidence. Nothing has been presented to this Court to show that the trial judge deviated himself from that obligation.

[10] Secondly, the appellant says he was unable to challenge his confession. According to the trial judge's notes, the appellant did challenge his confession. The trial judge held a trial within a trial from 4th to 5th October 2010, to determine the admissibility of the appellant's confession. On 13 October 2010, the trial judge ruled the appellant's confession was admissible.

[11] Thirdly, the appellant says he was unable to challenge the admissibility of the carbon copy of his caution interview. This compliant is linked to ground three and is misconceived. A carbon copy is considered an original document and the rules of admissibility that apply to a photocopy has no application to the admissibility of a carbon copy (State v Kanito Matanigasau Criminal Appeal No. HAA 108 of 2002).

Admissibility of carbon copy
[12] Whether the trial judge should hold an inquiry to determine the admissibility of a carbon copy is a question of law alone. But the question is frivolous because there is no rule that requires a trial judge should conduct an inquiry before admitting a carbon copy. A carbon copy is admitted as an original document (Matanigasau's case).

Lack of corroboration

[13] This ground raises a question of law alone. But the ground is frivolous because it is settled now that an accused can be convicted on his confession alone (Kean v State Criminal Appeal No. AAU95 of 2008).

Sentence appeal

Non-parole v remission

[14] Remission is an irrelevant consideration in sentencing (Chand v State Criminal Appeal No. CAV0003 of 2012). In Kirikiti v State Criminal Appeal No. AAU005 of 2011, I rejected a similar ground saying if there is a conflict between two statues, then the conflict can only by fixed by the legislature.

Result

[15] The grounds of appeal against conviction and sentence are not arguable. I am further satisfied that the appeal cannot possibly succeed and is frivolous.

[16] The appeal is dismissed under section 35(2) of the Court of Appeal Act.

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