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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
[On Appeal from the High Court]
CRIMINAL APPEAL NO. AAU 0117 of 2011 and AAU 103 of 2011
[High Court Criminal Action No. 40 of 2010)
BETWEEN:
1. SANJEEV MOHAN
2. JOE KING
Appellants
AND:
THE STATE
Respondent
Coram : Lecamwasam, JA
S. Fernando, JA
P. Fernando, JA
Counsel : 1st Appellant in Person
Mr. Mohammed Yunus for the 2nd Appellant
Mr. M. Korovou for the Respondent
Date of Hearing : 17 November 2015
Date of Judgment : 3 December 2015
JUDGMENT
Lecamwasam JA:
[1] The two Appellants preferred this appeal subsequent to a conviction by the High Court on a count of aggravated robbery contrary to section 311(1)(a) and (b) of the Crimes Decree 44 of 2009. Aggrieved by refusal of an application for leave to appeal, Appellants renewed their application to the full court on the following grounds of appeal.
[2] The grounds of appeal urged by Appellant Joe King as stated in his submissions dated 2nd day of November 2015 are as follows:
Conviction Appeal
GROUND 1- The Learned Judge has failed to direct the Assessors in respect of the defence of alibi, that the prosecution must disprove the defence of alibi and even if the assessors concluded that the defence was false, that does not by itself entitle them to convict the Appellant.
GROUND 2- The Learned Trial Judge erred in law when he failed to direct the prosecution to amend the information as the evidence before the Court did not support the information of Aggravated Robbery but supported the information of Aggravated Burglary.
GROUND 3- The Learned Trial Judge erred in law and misdirected the assessors on the topic of proof beyond reasonable doubt.
GROUND 4- The Learned Trial Judge erred in law and in fact when he found the confession statement of the Appellant admissible when the prosecution failed to prove beyond reasonable doubt that the confession was voluntarily obtained.
GROUND 5- The Learned Trial Judge erred in law and in fact when he failed to give adequate directions to the assessors in regards to confession statement in the caution interview.
GROUND 6- The Learned Trial Judge erred in law and in fact when he failed to give adequate directions to the assessors in regards to circumstantial evidence.
Sentence Appeal
GROUND 1 – The Sentence is harsh and excessive considering all the circumstances of the case.
GROUND 2 – The Learned Trial Judge erred in principle and also erred in exercising his sentencing discretion to the extent that the non-parole period is too close to the head sentence which conflicts with the provision of section 27 of the Prison and Correction Service Act 2006.
Sanjeev Mohan (Grounds Filed on 26th September 2014 – after the order of the Single Judge of Appeal)
(i) Inadvertent admission of prejudicial evidence
(ii) Incompetent Advocacy.
(iii) Rejecting a 'NO CASE TO ANSWER' submission by the defence.
(iv) Failure of the prosecution in their duty to disclosures to the appellant.
[3] The facts briefly are as follows:
Around 8.30 pm on 29th April 2010, three people, some of them armed with cane knives entered into the dwelling house of the complainant Razimmun Nisha which was occupied at the time by the complainant, her husband and her father. They were brandishing knives at the occupants, the intruders have threatened the occupants and had kept them at knife point whilst robbing them of their mobile phones, a till containing four thousand dollars ($4,000.00) and some valuable beach-d-mer. Having heard a vehicle coming towards the driveway leading to the complainant's house the intruders fled the scene after the robbery.
[4] For convenience, as far as possible I shall deal with the grounds of appeal cumulatively. There is no burden whatsoever on an accused person who puts forward a plea of alibi and the burden is always on the prosecution to establish beyond reasonable doubt that the accused was not elsewhere but present at the time the offence committed.
[5] An alibi is not an exception to criminal liability and it is nothing more than an evidentiary fact, which like other facts relied on by an accused, must be weighed in the scale against the case for prosecution.
[6] The Learned High Court Judge has dealt with the issue of alibi only in three lines in a very perfunctory and cursory manner. It is manifestly clear that the Learned Judge has not adequately dealt with the issue of alibi in his summing up. Although the Learned Judge did not deal with the alibi adequately, study of the evidence shows that no miscarriage of justice resulted thereby. Therefore, this ground fails.
[7] Joe King, the 1st Appellant has raised the second ground of appeal to the effect that the Learned Judge erred when he failed to direct the prosecution to amend the information as the evidence before the court that the more appropriate charge was aggravated burglary and not aggravated robbery.
[8] It is the responsibility of the prosecution to bring the correct charge against the accused. An accused can be questioned for aggravated robbery but upon the facts elicited, the prosecution is at liberty to decide what charges to file against an accused person. The evidence led at the trial was sufficient to establish the charge of aggravated robbery. Therefore this ground also fails.
[9] As regards the argument on misdirection on the topic of proof beyond reasonable doubt, the Learned Judge has correctly directed the assessors on the topic as seen in paragraphs 7 and 15 of the summing up especially in paragraph 7 he has not only explained what proof beyond reasonable doubt is, in addition he has said that it cannot be a fanciful doubt.
[10] The court arrived at the conclusion that the confessions are admissible upon a voir dire inquiry and the Learned High Court Judge has applied the correct legal principles in arriving at the conclusion in the voir dire inquiry it is for the Learned Judge to assess the credibility of witnesses in coming to a proper conclusion. On a careful perusal of the summing up, it is obvious that the Learned Judge has given directions to the assessors comprehensively albeit, briefly. The said directions are adequate enough and hence I do not see any merit in this submission.
[11] As submitted by the state, the decision by the trial Judge in the voir dire can only be disturbed by the appellate court if the trial Judge had not applied the correct principles to the evidence and/or erred in his assessment of the evidence. It was held in Ajendra Kumar Singh v R (1980) 26 FLR 1 this Court said at page 9:"
"It is also set out in Director of Public Prosecution v Ping L:ing [1975] as he has frequently been said that an appellant court should not disturb a Judge's findings unless it is satisfied that a completely wrong assessment of the evidence has been made, or the correct principles have not been applied."
[12] The confession had been admitted and therefore on the strength of the available evidence the Learned Judge had acted under section 231(1) of the Criminal Procedure Decree. Hence the Learned Judge had acted in a legally permissible manner. The ground of appeal on the admissibility of confessions lacks merit and it fails.
[13] Circumstantial evidence does not play a vital role in this case. Hence directions found in the summing up are more than adequate. This ground also fails.
Failure of the prosecution to provide disclosures to the Appellant
[14] On a perusal of the court record it is evident that on 2nd July 2010 and 21st July 2010 the second Appellant Sanjeev Mohan had informed court that he had not got the disclosures. A party cannot prepare or get ready for his case unless the disclosures are given prior to the trial. In this case it is not clear up to the time of first date of trial that is 3rd October 2011, whether the second Appellant was served with disclosures.
[15] However on the 18th January 2011 when he was represented by a counsel, issue of disclosures being not provided, was not raised by the counsel, implying that there was no issue as to service of disclosures. Hence there is no merit in this ground of appeal also.
[16] Appellants have taken up a ground of appeal regarding inconsistencies. What is alleged is vague. It is the responsibility of the Appellant to state clearly what the inconsistencies are. He must be specific and the alleged inconsistencies must by specified. This ground of appeal lacks merit.
[17] In regard to incompetent advocacy – once a counsel is retained/assigned, the counsel takes over the whole case on behalf of the client. He has to take decisions on the spur of the moment. In such a situation may have no time to consult the client, as long as he does it in good faith and in furtherance of the welfare of the client one cannot find fault with the counsel. In this case at page 78 of the record the counsel has disputed the caution interview and brought to the notice of court the fact that his client was assaulted and applied chillies on the body etc. It is up to a counsel to decide what to ask and what not to ask, depending on his ability and experience. Those are things within his perview and court should not interfere with the rights of a legal practitioner unless the practitioner is guilty of a fraudulent act or indolent, lackadaisical or negligent in his conduct. I do not see such conduct in this case, hence this ground fails.
[18] Appellants took up the position that there are few unsigned pages in their caution interviews and when I perused the case record I found that their version is true and their position is that all incriminating evidence lies on those unsigned pages. On a careful perusal of all these pages it is evident that incriminatory evidence is found not only on unsigned pages but on other pages as well. Hence this ground of appeal also fails.
[19] Now I focus my attention on to the ground of appeal raised by the second appellant Sanjeev Mohan, this ground is on inadverted admission of prejudicial evidence. This ground has some merit when the second accused was questioned by police, in questions 21 and 22 and answers thereto are relevant in this issue. Question 21 and 22 and the answers are as follows:
Q21: Who is this Labalaba?
A: Friend of mine.
Q22: How do you know him?
A: We did Namada Robbery case together so from there we know each other.
[20] Not only in Sanjeev Mohan's caution interview but in Joe King's caution interview also I have noticed a similar situation in relation to questions number 98 and 99 and the answers thereto in the caution interview:
Q98: Are you sure that this two Labalaba and Bob went with you?
A: Yes
Q99: How did you know them?
A: Because we have four cases together.
[21] This is evidence of bad character. It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been involved of criminal acts other than those covered by the indictment.
[22] It is important to stress that since the prosecution relied entirely on the caution interview statement to establish the identity of the appellants it was imperative that no prejudicial material showing a previous bad character of the appellants should have been allowed as evidence. The learned High Court Judge not only failed to address this issue in his summing up but also, failed to disregard this evidence in his judgment. Due to this prejudicial inadmissible evidence of bad character pertaining to both the appellants was included. This has caused a miscarriage of justice in this case.
[23] However there was ample evidence in this case on all elements of the offence which could have led reasonable assessors to convict the Appellants.
[24] I hold that although there was a miscarriage of justice by the inclusion of bad character evidence, when considering the totality of the evidence in the case it cannot be considered as a substantial miscarriage of justice. Therefore I hold that this falls within the proviso to Section 23 (1) (a) of the Court of Appeal Act. Hence I uphold the conviction.
Grounds of Appeal on Sentence
[25] GROUND 1 – The Sentence is harsh and excessive considering all the circumstances of the case.
GROUND 2 – The Learned Trial Judge erred in principle and also erred in exercising his sentencing discretion to the extent that the non-parole period is too close to the head sentence which conflicts with the provision of section 27 of the Prison and Correction Service Act 2006.
The first ground raised by the appellant is that this sentence was harsh and excessive. However, the accepted tariff for aggravated robbery is 10 – 16 years.
[26] In Samuel Donald Singh v State Crim. AAU15 and 16 of 2011 Calanchini P in the Court of Appeal said:
"....there is ample authority in this Jurisdiction for concluding that the appropriate tariff for robbery with violence is now 10 to 16 years imprisonment. In selecting 10 years as a starting point the learned trial Judge has started at the lower end of the range".
[27] In this case the sentences that were imposed on the first appellant is 11 years and 9 months and the second appellant is 10 years and 8 months. These sentences can be considered as at the lower end of the tariff for aggravated robbery. Therefore I hold that the sentences imposed by the trial Judge was neither harsh nor excessive.
[28] The second ground of appeal on sentence deals with the non parole period being too close to the head sentence and thereby conflicts with the provision of Section 27 of the Prisons and Corrections Services Act 2006. In the case of Paula Tora v The State, CAV 11.2015 (22/10/2015), the Supreme Court stated:
"...In fixing a non parole period, the sentencing court must be mindful of the provisions of Section 27 of the Corrections Service Act so as to avoid any conflict."
[29] In the same judgment, the Supreme Court considered its judgment in Maturino Raogo v State; Criminal Appeal CAV 003 of 2010 (19th August 2010) in which this Court had the opportunity of considering a possible conflict between Section 33 of the Penal Code, Cap 17, as amended in 2004 and Section 63(1) of the Penal Code, Cap.86, which were applicable in that case, and observed at paragraph 24 as follows:-
"[24] It follows that the sentencing Court can only fix a minimum term of imprisonment equal to or less than the primary sentence of the court based on the considerations stated in the last paragraph. It also follows that the sentencing Court minded to fix a minimum term of imprisonment should not fix it at or less than the two thirds of the primary sentence of the Court. It will be wholly ineffective if a minimum sentence finishes prior to the earliest release date if full remission of one third is earned. Experience shows that one third remission is earned in most cases of those sentenced to imprisonment."(emphasis added).
[30] Having considered the above judgment, the Supreme Court refused to grant special leave to appeal in the case.
[31] Having considered the observations of the Supreme Court in the above case and the provision of Section 18(4) of the Sentencing and Penalties Decree 2009 which stipulates that any non-parole period fixed must be at least 6 months less than the sentence. I am of the view that there is no reason to disturb the non parole period fixed by the trial Judge.
[32] The convictions and sentences against the appellants are upheld and the appeal dismissed.
S. Fernando JA
[33] I agree with the reasoning and conclusion of Lecamwasam JA.
P. Fernando JA
[34] I agree with the decision of Lecamwasam JA.
The Orders of the Court are:
Hon. Mr. Justice S. Lecamwasam
JUSTICE OF APPEAL
Hon. Mr. Justice S. Fernando
JUSTICE OF APPEAL
Hon. Mr. Justice P. Fernando
JUSTICE OF APPEAL
Solicitors:
1st Appellant in Person
Office of the Legal Aid Commission for the 2nd Appellant
Office of the Director of Public Prosecutions for the Respondent.
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URL: http://www.paclii.org/fj/cases/FJCA/2015/155.html