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Colati v State [2015] FJCA 123; AAU42 & 44.2012 (13 March 2015)

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

CRIMINAL APPEAL NO: AAU42 & 44 OF 2012
[High Court Case No: HAC 77/10]

BETWEEN:

1. RONALD JEREMAIA COLATI
2. JOSAIA KOROINAVOSA
3. TEVITA SUGU
Appellants

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : 1st and 3rd Appellants in person
Mr. S. Waqainabete for the 2nd Appellant
Mr. M. Korovou for the Respondent

Date of Hearing : 2 June 2014
Date of Ruling : 13 March 2015

RULING

[1] The appellants were jointly charged with one count each of theft of a motor vehicle and aggravated robbery. After a trial in the High Court at Suva they were convicted and sentenced to a total term of 12 years' imprisonment each. Sugu's sentence was made partially consecutive with his sentence in HAC059/10.

[2] All three appellants have filed timely applications for leave to appeal against conviction and sentence. They have filed numerous grounds of appeal and they rely upon their written submissions on the issue of leave. I have read all the written submissions filed by the appellants. Unfortunately, as to be expected from unrepresented appellants, the grounds of appeal are not properly articulated. It appears that the complaints relate to the trial judge's directions on the evidence implicating the appellants.

[3] Koroinavosa was convicted on his disputed confession made under caution and visual identification evidence of a witness by the name Saimoni. At trial Koroinavosa claimed Saimoni was mistaken in his identification and his evidence was unrelaible because there was no police identification parade conducted and that he was identified for the first time in the dock.

[4] Sugu was convicted on the visual identification evidence of the two victims, Narayan and Hussein. Sugu claimed Narayan and Hussein were mistaken in their identification because there was no police identification parade conducted and they identified him for the first time in the dock.

[5] Colati was convicted on his disputed confession made under caution.

[6] The admissibility of the two disputed confessions was determined in a voir dire. The trial judge after hearing the evidence ruled the confessions admissible. The trial judge believed the prosecution witnesses and felt sure that the confessions were freely and voluntarily given by Koroinavosa and Colati. However, when the trial judge directed the assessors on the disputed confessions, he left the issue of voluntariness to the assessors to decide. Arguably this was a misdirection because the assessors are not concerned with the voluntariness but the weight or the truth of the confessions. Furthermore, the trial judge directed the assessors at paragraph 36 that they can use Koroinavosa's confession to assess the credibility of Saimoni's identification evidence. The issue was not credibility of Saimoni's evidence. The issue was the reliability of Saimoni's identification evidence. Arguably a disputed confession cannot enhance the quality of disputed identification evidence.

[7] Otherwise the directions on the identification evidence are correct in law and fact.

[8] The sentences imposed on the appellants are within the tariff for aggravated robbery. The tariff is 10 to 16 years imprisonment (Kean v State (unreported) Cr. App. No. AAU95/08; 13 November 2013). The offences involved two victims. One was gagged and thrown in the back seat of his vehicle before driven around. The robbery involved substantial cash and was well planned. The sentences reflected the criminality involved. There is no arguable error in the sentencing discretion.

Result
[9] Leave to appeal against conviction granted to Koroinavosa and Colati.

[10] Leave to appeal against conviction refused to Sugu.

[11] Leave to appeal against sentences refused to all three appellants.

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

Solicitors:
1st and 3rd Appellants in person
Legal Aid Commission for the 2nd Appellant
Office of the Director of Public Prosecutions for the State