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Lutumailagi v State [2015] FJCA 39; AAU11.2012 (11 March 2015)

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

CRIMINAL APPEAL NO: AAU 11 OF 2012
[High Court Case No: HAC 22/08Ltk]

BETWEEN:

TEMO LUTUMAILAGI
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Ms N. Nawasaitoga for the Appellant
Mr. M. Delaney for the Respondent

Date of Hearing : 22 July 2014
Date of Ruling : 11 March 2015

RULING

[1] The appellant was charged alone with murder and jointly with robbery with violence. Following a trial in the High Court at Lautoka, the appellant and his two co-accused were acquitted on the robbery with violence charge after the close of the prosecution's case. On the murder charge the trial continued and the appellant was convicted and sentenced to life imprisonment on 13 March 2012.

[2] The appellant appealed against his murder conviction. The State appealed against the acquittals entered against the appellant and his two co-accused on the robbery with violence charge. On 6 June 2014, I granted the State leave to appeal against the acquittals (See, Criminal Appeal No. AAU0046 of 2012). However the appellant's application for leave to appeal against his murder conviction could not be heard because the appellant had not perfected his grounds of appeal. On 25 June 2014, the appellant filed the following amended grounds of appeal:

1. The Learned Trial Judge erred in law when he disregarded the medical report of the Appellant which was suggestive of police improprietory whilst in police custody. Furthermore, the Prosecution had not rebutted the evidence of the Appellants resulting in substantial miscarriage of justice.

2. The Learned Trial Judge erred in law and in fact when he failed to direct and guide the assessors on how to approach the answers contained in the Caution Interview and the weight to be attached to the disputed confession considering that he denied the allegation in Court.

3. The Learned Trial Judge erred in law when he misdirected the assessors on the definition of malice aforethought under English Lexicon.

[3] The first ground relates to the admissibility of the appellant's confession. The admissibility of confession was determined in a voir dire by a different judge. After hearing evidence in voir dire, the learned judge ruled the confession admissible. The issues raised under this ground were carefully considered and rejected by the learned judge. I cannot find any arguable error in the judge's decision to admit the appellant's confession in evidence.

[4] Ground 2 relates to the directions the trial judge gave on the appellant's confession. Apart from summarizing the evidence surrounding the confession, the trial judge gave no assistance to the assessors as to how they should assess the disputed confession. This ground is arguable.

[5] Ground 3 relates to the trial judge's directions on malice aforethought. The trial judge did in fact define malice aforethought using the English Lexicon at para 15 of the summing up:

English Lexicon says malice aforethought means "with intention of committing a crime" (especially murder or grievous bodily harm).

[6] The above direction is arguably a misdirection. Malice aforethought is expressly defined by section 202 of the Penal Code, Cap. 17. What was required of the trial judge was to give directions in accordance with section 202 of the Penal Code and not in accordance with the English Lexicon.

Result

Leave refused on ground 1.
Leave granted on grounds 2 and 3.
This appeal is consolidated with the State's cross-appeal No. AAU0046 of 2012.

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

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