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Marama v State [2015] FJCA 118; AAU0096.2013 (19 June 2015)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 0096 OF 2013
[High Court Criminal Case No. HAC029 of 2004]

BETWEEN:

1. KELERA MARAMA
2. ALESI NALAVE
Appellants

AND :

THE STATE
Respondent

Coram : Goundar JA
Counsel : Ms. N. Nawasaitoga for the Appellants
Mr. V. Perera for the Respondent

Date of Hearing : 2 December 2014
Date of Ruling : 19 June 2015

RULING

[1] The appellants were convicted of murder in a re-trial before the High Court at Lautoka. They were sentenced to life imprisonment. They seek leave to appeal against their convictions on the following grounds:

Ground 1 – The Learned Judge wrongly allowed dock identification of the Appellants which was prejudicial thereby causing a miscarriage of justice.

Ground 2 – The Learned Trial Judge erred in law and in fact when he failed to direct on unreliability of the Police statement and unsteady upon request incorrectly gave a Turnbull direction implying that the witness had identified the second Appellant, when the witness had never stated thereby causing a miscarriage of justice.

Ground 3 – The Learned Trial Judge erred in law and in fact when he failed to give direction on the issue of prior inconsistent statement thereby causing a miscarriage of justice.

Ground 4 – The Learned Trial Judge erred in law and in fact when he misdirected the assessors on the issue of alibi raised by the appellants in their sworn testimony and implied that she had given notice of alibi when he ought to have known that such notice applied to alibi witnesses and not to the appellants.

Ground 5 – The Learned Trial Judge erred in law and in fact when he failed to direct the assessors on the missing exhibits and incorrectly directed the assessors that this was not a trial overseas or a TV program implying that the prosecution did not have to produce the exhibits which was requested by the defense thereby causing a miscarriage of justice.

Ground 6 – The Learned Trial Judge erred in law when he failed to deliver a fair, objective and balanced summing up to the assessors by highlighting points favourable to the State and highlighting weaknesses in the defence case thereby causing a miscarriage of justice.

Ground 7 – The Learned trial Judge erred in law and in fact when he attempted to respond to address by counsel for the first appellant by providing answers and explain with difficulty the reference to a knife and no reference to a bottle in the autopsy report thereby causing a miscarriage of justice.

Ground 10 – The Learned Trial Judge erred in law and in fact when he directed the assessors that police officers who gave evidence had received commendation implying that their evidence was to be preferred over the appellants on the issue of weight to be given or admissibility of the record interview thereby causing a miscarriage of justice.

Ground 13 – The Learned Trial Judge erred in law by failing to make an independent assessment of the evidence, before affirming a verdict which was unsafe, unsatisfactory and unsupported by the evidence giving rise to substantial miscarriage of justice.

[2] Both appellants have raised common grounds of appeal. Grounds 8, 9 11 and 12 were abandoned at the leave hearing. The test for leave is whether the appeal is arguable. Appellant Kelera Marama's appeal is within time. Appellant Alesi Nalave's appeal is late by 6 months. However, since both appellants were jointly charged and tried together, it is highly desirable their appeals be heard together in order to avoid inconsistent verdicts.

[3] Given the seriousness of the murder convictions, it is in the interests of justice that the appellants be accorded their rights of appeal. I grant an extension of time and leave to appeal against convictions.

Result
Leave granted.

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

Solicitors:
Office of the Legal Aid Commission for Appellants
Office of the Director of Public Prosecutions for State