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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
Criminal Appeal No: AAU 0067 of 2011
(High Court Case No: HAC 049 of 2010)
BETWEEN:
1. LAISENIA BESE
2. ARE AMAE
Appellants
AND:
THE STATE
Respondent
Coram : Calanchini P
Basnayake JA
Madigan JA
Counsel : Mr. S. Sharma for the Appellant
Mr. L. Fotofili for the Respondent
Date of Hearing : 9 February 2015
Date of Judgment : 27 February 2015
JUDGMENT
Calanchini P
[1] I have read in draft the judgments of Basnayake JA and Madigan JA. I agree that the appeals should be allowed and a new trial ordered.
Basnayake JA
[2] This is an appeal by the two appellants after a conviction. The two appellants were charged on two counts of robbery with violence. The 1st count is in relation to the robbery of cash amounting to $ 833.92 and BH cigarettes to the value of $ 43.90 totalling $ 877.82 and using personal violence. The second count is with regard to robbery of a bag belonging to Sereana Soko valued at $ 6 and cash amounting to $ 40 totalling $ 46. Both counts are contrary to section 293 (1) (b) of the Penal Code Cap 17. The appellants were tried before a Judge and three Assessors. The Assessors having found both the appellants guilty, the learned trial Judge convicted and sentenced them to 11 years and 8 months, with a non parole period of 9 years of imprisonment.
Facts in short
[3] Sereana Soko was the cashier of Nabua Service Station. The cashier's room is protected by grills. On 29 March 2009 at 3.25 a.m. this witness had seen 4 or 5 people in the shop who threatened her with a cane knife, a spade, stones and bottles. They had been wearing masks and had threatened her to open the cashier's room. Thereafter she had tried to escape but was caught and searched. She could not remember what happened thereafter. She did not identify anyone as they were wearing masks. She remembered informing her boss and her husband. The fact that a robbery took place at the service station at Nabua is not challenged.
[4] The appeal is based on the following three grounds, namely:
a. That the prosecution must disprove the defence of alibi.
b. Even if the assessors concluded that the defence was false, that does not by itself entitle them to convict the appellants.
Submissions of the learned counsel for the appellants
The 1st ground
[5] The learned counsel submitted that the learned Judge in paragraph 23 of the summing up stated that, "The difficulty for the prosecution in this case, was the fact that Sereana Soko did not identify any of the robbers on 29 March 2009 because all of them were masked during the robbery. There were therefore no eye witnesses to connect any accused to the crime. The only credible evidence the prosecution has against each accused was the alleged confession they gave the police in their caution interview statements. All the other evidence were merely circumstantial, and in themselves do not link the accused to the crime". The learned counsel strenuously submitted that the words "the only credible evidence" meant that the learned Judge had taken away from the Assessors their role. That is to decide for themselves whether or not they (the Assessors) found the confessions credible or not. The learned counsel submitted that the learned Judge has misdirected the Assessors to take for granted that the evidence contained in the confessions were the truth or is credible.
[6] It is for the Assessors to consider the probative value of a confession. This was held in Tara Chand and Others v Reginam (14 FLR 73 at 81). The Court of Appeal followed the judgment of Chan Wei Keung v R [1966] UKPC 25; [1967] 2 AC 160; 1967 1 All ER 948 and R v Murray [951] 1 KB 391. In R v Murray (supra at pg. 393) the Court of Appeal held that, "It has always, as far as this court is aware, been the right of counsel for the defence to cross-examine again the witnesses who have already given evidence in the absence of the jury for if he can induce the jury to think that the confession was obtained through some threat or promise, its value will be enormously weakened. The weight and value of the evidence are always matters for the jury".
[7] The learned counsel submitted that the appellants disputed the confessions. Since confessions were admitted in evidence, the sole question for the Assessors was its probative value or its truth. This means that it was open to the Assessors to give whatever weight they ought to give to the confessions. When the learned judge directed the Assessors that the only credible evidence was the alleged confessions, the Assessors were deprived of making a choice in respect of the truth or credibility of the confessions and the weight they should give to the confessions.
[8] It was held by the High Court of Australia in Burns v The Queen [1975] 132 CLR 258 at 261 that "It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt". The learned counsel submitted that although the responsibility of ascertaining the truth of the confessions was for the Assessors, the learned Judge, by commenting on the quality of the evidence in his summing up, had usurped the function of the Assessors thus causing a miscarriage of justice.
The 2nd ground
[9] The appellants in their defence took up an alibi. The learned counsel submitted that the learned judge failed to direct the Assessors that it was incumbent upon the prosecution to disprove it. In Rex v. Anderson [1991] Crim. L.R. 361 the Court of Appeal stated that (pg. 362) "It was certainly better if a judge when dealing with an alibi defence repeated that the burden was on the Crown to disprove it". The learned counsel also submitted that the failure on the part of the judge to direct the Assessors that even if the prosecution concluded that the alibi defence was false, that does not by itself entitle them to convict the appellants.
[10] Beldam L.J. in Robert David George Haron [2008] EWCA Crim 1534; [1996] 2 Cr App R 451 at 461 held that, "The jury would have understood that they had not only to be sure that the alibi was wrong, they had to be sure that the Crown evidence was right. In other words that even if they were satisfied that the alibi was false it did not entitle to convict the defendant, they still had to be sure that the evidence of Michael and Patterson was right". The learned counsel submitted that the failure on the part of the learned Judge in giving these directions has caused a miscarriage of justice.
The 3rd ground
[11] The learned counsel submitted that the learned trial Judge erred in law when he failed to sum up the defence of the appellants in a fair, objective and a balance manner thereby causing a substantial miscarriage of justice. Referring to the evidence of alibi at paragraph 36 (pg. 44 of the High Court Record (HCR)), the learned Judge stated as follows; "Amazingly, the accused himself when giving evidence, mentioned nothing about sleeping at his aunt's house, at the time of the robbery. Was it possible that his aunt was lying in court? Was it possible he was not at his aunt's place at all, and that is why he did not mention it in his evidence?" Again in paragraph 38 while considering the defence of the 2nd appellant the learned Judge summed up as follows; "Were these witnesses objective? Were their objectivity clouded by the fact that they were closely related to the accused, as mother and wife? Was it possible for them to lie to court to save a son and husband from going to jail? In other words were they credible witnesses? Was Laisenia Base credible on this issue? Here was a person who was already breaking the rules by drinking in public. Do you accept his evidence? These are matters for you to consider, as Assessors and Judges of fact".
[12] The learned counsel was very critical about the manner in which the learned Judge addressed the Assessors. The learned counsel submitted that the number of rhetorical questions posed by the learned trial Judge is not only unfair and unbalanced, but most certainly casts a doubt on the appellants and the evidence adduced. Any person listening to the summing up in the way it was done will be inclined not to believe the appellants and the witnesses without undertaking any objective assessment of the evidence adduced. The learned counsel relied on the judgment of Wilisoni Dakunaivei Tambaibeka v Aminiasi Katonivualiku (Criminal Appeal No. AAU 0015 of 1997S) where the Court of Appeal of Fiji held that (pg. 29), "a Judge is entitled to comment robustly on either the case for the prosecution or the case for the defence in the course of a summing up. It is appropriate that he puts to the Assessors clearly any defects he sees in either case. But that must be done in a way that is fair, objective and balanced. If it is not, the independent judgment of the Assessors may be prejudiced. If all the issues are put in a manner favourable to one party and unfavourable to the other, the Assessors may feel bound to follow the view expressed by the Judge". In that case the Court followed R v Clayton (1948) 33 Cr App R 22 at pg 30 where Goddard CJ stated that, "The duty of a Judge in any criminal trial...is adequately and properly performed... if he puts before the jury, clearly and fairly, the contentions on either side, omitting nothing from the charge, so far as the defence is based. He must give to the jury a fair picture of the defence, but that does not mean to say he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence.."
[13] The learned counsel submitted that since the directions of the learned trial Judge were not fair, objective and balanced, the Assessors would have felt that they are bound to find the appellants guilty without the need for any assessment of the evidence adduced resulting in a substantial miscarriage of justice. The fact that the learned trial judge after posing several questions to the Assessors indicating not to believe the defence evidence, stating that "as Assessors and Judges of fact, these are matters for you to decide and these are matters for you to consider as Assessors and Judges of facts" most certainly would not have been of much assistance to the Assessors who would have already made up their minds to return a verdict of guilty as charged. The learned counsel thus submitted that those are fatal errors which has resulted in an unsafe conviction.
Submissions of the learned counsel for the respondent
[14] The learned State Counsel while refuting some of the arguments of the learned counsel for the appellant, conceded some others. The learned State Counsel submitted that when the learned Judge stated that (referring to paragraph 23 of the summing up) the only credible evidence the prosecution has against each accused was the alleged confession, that by saying so the learned Judge expressed his opinion. The learned counsel also submitted not to consider paragraph 23 in isolation.
[15] As regards the alibi evidence, the learned counsel accepted that it is the prosecution who carried the burden of proving the appellant's guilt and also carried the burden to disprove an alibi (R v Anderson (supra)). The learned counsel also admitted that the learned trial judge did not direct the Assessors specifically that the prosecution needed to disprove alibi. However he submitted that in terms of section 125 of the Criminal Procedure Decree 2009 the appellants were required to give 21 days' notice. Although this rule was not complied with the prosecution raised no objection to the leading of the alibi evidence. The learned counsel admitted that the learned Judge did not accept the alibi evidence.
The Ruling delivered on 10 July 2013 granting leave against the conviction (Pgs. 1 to 7 of the HCR)
[16] In a ruling delivered on 10 July 2013 granting leave to appeal against the convictions, the learned judge stated in paragraph 10 as follows: "It is clear from the learned trial Judge's directions that he did not leave the truth or weight of the confessions for the Assessors' consideration". This was considered as an arguable misdirection on the appellants' confessions. In paragraph 12 the learned Judge stated that, "When an accused raises an alibi as his defence, in addition to the general direction on the burden of proof, the jury should be directed that the prosecution must disprove the alibi and that even if they conclude that the alibi was false, that does not by itself entitle them to convict the accused (R v Anderson (supra); R v Lesley [2006] EWCA Crim 2000; [1996] 1 Cr App R 39; R v Harron [1996] 2 Cr App R 457. The learned judge stated that "Not only were these directions not given but the number of rhetorical questions posed by the trial Judge in relation to the applicants' alibi, arguably made the summing up imbalanced and unfair to the applicants. Whether the alleged errors caused a miscarriage of justice is for the Full Court to determine" (Paragraph 12).
[17] The only evidence available against the appellants was the confessions the appellants allegedly made to the police. These confessions were admitted after a voir dire. It is well established that the truth of those confessions had to be decided by the Assessors, being Judges of facts. Admittedly the learned Judge classified the only available evidence as credible. When the learned Judge referred to the evidence contained in the confessions as truthful, the learned Judge clearly took away the function of the Assessors. It may be that the learned Judge said so only once. But that was never rectified.
[18] It is also well established that the prosecution should disprove any evidence relating to alibi. The learned Counsel for the respondent complained that the appellants had failed to give the required 21 days' notice. However the appellants were allowed to lead evidence relating to alibi without an objection. Once that is done of course, a duty is cast upon the prosecution to disprove it. This was not done and no directions were given to the Assessors reminding the duty of the prosecution to disprove it (R v Anderson (supra)). Admittedly there was no direction by the learned Judge that even if the alibi evidence was proved to be false, it does not mean that the case has been proved against the appellants. Leaving aside a duty, it appears that the learned Judge directed the Assessors that the evidence given with regard to the alibi evidence should not be believed. This was admitted by the learned counsel for the prosecution too.
[19] Considering the submissions of counsel I am of the view that the summing up lacks the essential qualities of objectivity, even-handedness and balance required to ensure a fair trial. In the light of that conclusion the conviction cannot stand. Hence convictions against both the accused are quashed. Sentences are set aside. A new trial is ordered on the same counts.
Madigan JA
[20] I have read in draft the judgment of Basnayake J.A. and I agree that the appeal should be allowed and a new trial ordered for the reasons he states therein.
[21] I would however make some comment on the roles of judge and assessors with respect to interviews made under caution.
[22] An inculpatory record of caution interview is often the only evidence relied upon by the Prosecution in trials on serious accusations. For that reason alone, the enquiry into the generation of the record must be very carefully conducted to allow no suggestion whatsoever of impropriety or oppression.
[23] That enquiry or voir dire will determine whether the Court enquiring is of the view that it was voluntarily generated or generated without oppression, and the enquiry will extend no further than that, as salient as that exercise might be in itself.
[24] The determination of the truth of the record if it is held to be admissible is a determination within the ambit of the fact finding tribunal, be it a panel of assessors, or a judicial officer sitting alone. That being so, it is highly prejudicial to the fact finding function if a judge should make comments that could be seen to usurp that function.
[25] In this case therefore where the only possible evidence against either accused would be his record of interview if the assessors saw fit to find it was indeed made and was true, it is a gross misdirection for the trial Judge to say that the alleged confessions in the interviews under caution was "the only credible evidence the prosecution has". By usurping the assessors' role to decide on the credibility of the interviews would be reason enough alone to allow this appeal.
The Orders of the Court are:
Hon. Justice W. Calanchini
PRESIDENT, COURT OF APPEAL
Hon. Justice E. Basnayake
JUSTICE OF APPEAL
Hon. Justice P. Madigan
JUSTICE OF APPEAL
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