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Gauna v State [2015] FJCA 61; AAU0071.2010 (28 May 2015)

IN THE COURT OF APPEAL
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.AAU 0071 of 2010
(High Court Criminal Case No. HAC 190 of 2008)

BETWEEN:

VILIAME GAUNA
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Basnayake JA
Fernando JA

Counsel : Appellant in person
Mr. M. Korovou for the Respondent

Date of Hearing : 8 May 2015
Date of Judgment : 28 May 2015

JUDGMENT

Calanchini P

[1] I agree with reasons and the proposed orders of Basnayake JA.

Basnayake JA

[2] The appellant on 22 September 2010 had filed an appeal in terms of section 21 (1) of the Court of Appeal Act, Cap 12 seeking leave to appeal against his conviction. The appellant thereafter filed several notices seeking to amend the grounds of appeal. A single Judge of the Court of Appeal had refused to grant leave to appeal on 4 July 2013 (pgs. 2-7 of the Record of the High Court (RHC). The appellant has filed the present application (pg. 1 of RHC) in terms of section 35 (3) of the Court of Appeal Act to have his application determined by a full court. The appellant had filed another notice with amended grounds of appeal on 30 March 2015. On 14 April 2015 the appellant had filed written submissions on the amended grounds. On 8 May 2015, which is on the day that this case was taken up for hearing the appellant had filed in open court another notice containing additional grounds together with further submissions. The respondent too had filed written submissions on 1 May 2015. The appellant and the learned counsel for the respondent made oral submissions in support and against this application respectively.

[3] The appellant and another accused was charged with others for robbery with violence contrary to section 293 (1) (a), damaging property contrary to section 324 (1) and unlawful use of motor vehicle contrary to section 292 of the Penal Code, Cap 17. The other accused, namely, Timoci Delana having pleaded guilty was convicted and sentenced. The appellant pleaded not guilty and was tried by a Judge of the High Court and three Assessors. After trial the appellant was convicted on 29 July 2010 after the Assessors returned a unanimous opinion of guilty on all the charges (judgment is at pg. 194 of the Record of the High Court (RHC)). The appellant was sentenced to 17 years on the charge of robbery with violence. He was sentenced to nine months and three months respectively on the other charges. The sentences were to run concurrently with a non-parole period of 15 years imprisonment.

[4] The grounds of appeal tendered to court overlap. It appears that the appellant had in his notice submitted on 8 May 2015 filed an amalgamated set of grounds. It appears that the appellant is satisfied with the grounds he has mentioned in this ultimate notice submitted on the day of the hearing. The relevant portion of Paragraph 6 of the written submissions of the appellant dated 8 May 2015 states thus; "Included in such petition of appeal dated 8.5.15 altogether six grounds...Three of those grounds has already been raised and refused by the single Judge of appeal while the remaining three grounds are new and/or additional grounds of appeal". The appellant admitted in his oral submissions that these are the grounds of appeal he is relying on. Being satisfied that these are the ultimate grounds that this court is required to consider I mention below a summary of the grounds as follows:

1. The statement of witness No. 1 Bimla Wati was served on the appellant late, contravening section 192 of the Criminal Procedure Code.
2. Failure to pronounce judgment in open court.
3. Allowing the prosecution to call Mr. Vereniki Ravulolo at a very late stage of the proceedings.
4. Directions given to the Assessors on the evidence of Mr. Vereniki Ravulolo who was an accomplice is inadequate.
5. The 1st charge of the indictment is defective.
6. Failure to direct the Assessors on the contradictory evidence of witness No. 1.
   

Ground 1

[5] The appellant did not address court in support of this ground in his oral submissions. However in the written submission tendered to court on 8 May 2015 the appellant had submitted that the learned Judge has erred by allowing the prosecution to serve the appellant a copy of the statement of the prosecution witness Bimla Wati at a very late stage of the proceedings. The appellant submitted that he was served with a copy of the statement of this witness on the day of the trial that is on 26 July 2010. He submitted that in terms of sub-section 2 ( c ) of section 192 of the Criminal Procedure Code (CPC) such statement should have been served on him at least 14 days before the hearing.

[6] The new witness called Bimla Wati was the wife of the virtual complainant Mr. Viraj Chand. When this case was mentioned in court on 15 July 2010, the learned counsel for the prosecution brought it to the notice of the court the demise of Mr. Chand. Apparently by that time Mr. Chand's statement had already been served on the appellant. As Mr. Chand was deceased, the prosecution had sought permission of court to amend the indictment by adding the name of Bimla Wati as a witness. At the time of making this application her statement was not recorded by the police (Pgs 171-173 of RHC). The appellant objected to the amendment. By then the trial was already fixed for 26 July 2010. Hence the learned Judge had delivered a ruling (pgs. 68 71) on 26 July 2010 on the objections. That is prior to the commencement of the trial.

[7] The ruling reveals that a copy of the statement of the new witness was served on the appellant on 21 July 2010. The appellant in his written submissions tendered to court at the hearing states that a copy of this statement was delivered to him on 26 July 2010. The learned Judge posed the question in his ruling; "The simple question..is whether the accused person was given reasonable time".

[8] The procedure to be adopted is now laid down in section 228 of the Criminal Procedure Decree.

Section 228 of the Criminal Procedure Decree

S. 228- No witness whose evidence has not been included in the briefs of evidence provided by the prosecution to the defence before the trial shall be called by the prosecution at any trial, unless the accused person has received reasonable notice in writing of the intention to call the witness. Section 228 (3) states, "The court shall determine what notice is reasonable, having regard to the time when and the circumstances under which the prosecution became acquainted with the nature of the witness's evidence, and determined to call the witness".

[9] The learned trial Judge had observed that the information to call the new witness was given to the appellant on 15 July 2010. The reason for calling the new witness arose as a result of an unfortunate event that took place before the trial began. That is the demise of the virtual complainant. The new witness was the wife of the virtual complainant. Both of them were the only eye witnesses to the crime the appellant has been charged with. The incident relating to the crime took place while they were in the bed room of their house. The assailants having entered into the house attempted to get inside the bed-room where the virtual complainant and his wife (the new witness) were. Realising that the assailants were inside the house, the virtual complainant had locked the bedroom door and the assailants had had to break open the door to get in to rob. The learned High Court Judge having perused the statement of the new witness observed that she did not disclose any new material. Considering the time allowed for the preparation the learned Judge found that the time given was sufficient.

[10] The evidence of this witness is at pages 174 and 175 of the RHC. Her evidence is that she heard a noise coming from the sitting room and realizing that the robbers are inside the house her husband who was the virtual complaint locked the bedroom door from inside. The robbers had then attempted to enter into the bed-room by making a hole through the door and tried to open it by pulling the handle. Her husband had then hit the hand of one of the robbers. She said that she could not remember the faces and also could not identify the appellant in court. No questions were put to this witness by the appellant in cross examination.

[11] Section 192 (2) (c) of the Criminal Procedure Code requires a copy of the statement to be served on the opponent at least 14 days before the hearing. However it was the Criminal Procedure Decree that was in operation. In terms of section 228 of the Decree, what is required is reasonable notice. I am of the view that the learned Judge had correctly interpreted the law and applied it to the facts. The time given for the appellant was reasonable enough and for that reason although arguable, I see no merit in this ground.

2nd Ground

[12] The appellant complained that a miscarriage of justice occurred due to the failure of the trial Judge in pronouncing a judgment. The appellant did not make any oral submissions on this ground too. However in the written submission tendered to court on 8 May 2015 the appellant states as follows in paragraph 20: "There is nowhere......in the court record indicate that the judgment was pronounced....soon after the trial. The only place....that indicates..... is contained at page 194....nowhere this page shows that the said judgment......was pronounced......in open court soon after the trial or had a copy of it provided....as directed under.....section 154 of the Criminal Procedure Code".

[13] Page 194 contained a short written judgment with three paragraphs. It states that the Judge agrees with the Assessors on all three counts and therefore convicts the appellant accordingly. I could not find anywhere in the Record of the High Court that the judgment had been pronounced. However it appears from what is contained in the record that it had been delivered. The Assessors verdict appears at page 193. The time recorded is 12.36 p.m. The judgment appears soon thereafter at page 194. The short judgment is signed by the Judge at 12.40 p.m. on 29 July 2010. The learned Judge had thereafter put off for sentence for 16 August 2010. After the hearing on 16 August 2010, the sentence was pronounced on 19 August 2010 (pg. 32 of RHC).

Section 237 of the Criminal Procedure Decree:

S.237 (1) - When the case for the prosecution and the defence is closed, the Judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The Judge shall then give the judgment, but in doing so shall not be bound to conform to the opinions of the assessors.

(3) Notwithstanding the provisions of section 142 (1) and subject to sub-section (2), where the judge's summing up of the evidence under the provisions of subsection (1) is on record, it shall not be necessary for any judgment (other than the decision of the court which shall be written down) to be given, or for any such judgment (if given)-

(a) to be written down; or

(b) to follow any of the procedure laid down in section 141; or

(c) to contain or include any of the matters prescribed by section 142.

(4) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be-

(a) written down, and

(b) pronounced in open court.

(5) In every such case the judge's summing up and the decision of the court together with (where appropriate) the judge's reasons for differing with the majority opinion of the assessors, shall collectively be deemed to be the judgment of the court for all purposes.

(6) If the accused person is convicted, the judge shall proceed to pass sentence according to law.

(7) Nothing in this section shall be read as prohibiting the assessors, or any of them, from

(a) retiring to consider their opinions if they wish; or

(b) from consultation with one another during any retirement or at any time during the trial.

[14] In Edward Sheikh Faruk Ali v Reginam [1974] 20 FLR 35 at pg. 38 (per Haslam JA) the Court of Appeal held that, "If the trial Judge agrees with the majority of the assessors he need now give no judgment but must write down the decision of the Court". The Supreme Court in Shiek Mohammed v State (unreported CAV 2 of 2013; 27 February 2014 had endorsed the above statement as having stated the correct position under section 299 of the Criminal Procedure Code (The State v Simione Kaitani and others (unreported HAC 44 of 2004; 15 August 2005), Devi v State (unreported AAU 8 of 2009; 30 January 2012). I will now reproduce the proviso to section 299 on which Edward Sheikh Faruk Ali v Reginam (supra) was based on.

"Provided that, notwithstanding the provisions of section 155 (1) where the judge's summing up of the evidence under the provisions of sub section (1) is on record it shall not be necessary for any judgment, other than the decision of the court shall be written down or to follow any of the procedure laid down in section 154 or to contain or to include any of the matters prescribed by section 155 except that where the Judge does not agree with the majority of the Assessors.....

[15] Thus it is clear to what extent the argument of the appellant is valid. There is no doubt of the Assessors unanimous verdict of guilty on all the counts. The Judge has recorded the convictions. In that event even if there is no judgment or having written a judgment, there was no pronouncement of the same or copies of the same not being handed down to the parties has no effect on the conviction and or the sentence. Therefore this ground also arguable is without merit and rejected.

Grounds 3 and 4

[16] These two grounds are combined for the reason that both these grounds are concerning witness No. 3 Mr. Vereniki Ravulolo. He was an accomplice. He was offered immunity in a letter from the Director of Public Prosecutions. A copy of this document was handed down to the appellant on the day of the trial prior to the calling of this witness to give evidence. The evidence of this witness was taken on the very first date of the trial. The appellant's grievance is that the court did not inform him in advance that the accomplice's evidence would be taken on the first date of trial. He also states that he should have been served with a copy of this immunity at least 14 days prior to the commencement of the trial as per section 192 of the Criminal Procedure Code. The appellant does not indicate the law on which he has based his argument. The Judge has no authority over the prosecution with regard to the sequence of calling witnesses to give evidence in court. It is the prerogative of the prosecutor to select the sequence; that is which witness to call first and so forth. The Judge also has no authority over the prosecution on the granting of immunity to any accused. It is the paramount consideration of the prosecution to prove the case. That has to be done beyond reasonable doubt. The appellant does not complain that he was not served with a copy of the statement of the witness. He submitted to court at the hearing that he had enough time to study the statement of the accomplice. Hence I am of the view that this ground is without merit and must fail.

Inadequacy of the warning on corroboration on the evidence of the accomplice

[17] The appellant had canvassed this ground before the single Judge of the Court of Appeal previously and the Court of Appeal had considered this ground exhaustively. The court of Appeal held, "The appellant has also urged the ground that the learned trial Judge failed in his duty to be fair and just when he failed to take precautions in analyzing the evidence before the Assessors. A perusal of the summing up of the learned trial Judge to the Assessors shows that he had dealt with the evidence led in the case in detail and given necessary warning as regards the evidence of witness Vereniki Ravulolo, who was considered as an accomplice. The learned trial Judge having dealt with the evidence left it to the Assessors to arrive at their conclusion regarding same" (pg 5 of the RHC).

[18] The appellant submitted that the evidence of the witness Vereniki Ravulolo was not corroborated. He admitted while making submissions that he knew Vereniki Ravulolo for about 10 to 15 years prior to the date of the crime for which he was convicted. He submitted however that the warning given to the Assessors on the evidence of the accomplice is not adequate. He further submitted that the learned Judge failed to warn the Assessors that it is dangerous to accept the evidence or to convict on it unless such evidence is corroborated.

The accomplice Vereniki Ravulolo (pg 177) and other corroborative evidence

[19] Vereniki said that he was 23 years of age and he grew up with the appellant in the same village. He described the house that was robbed with the appellant and some others on 14 June 2008 in the early hours. He also said how the appellant's hand was injured while trying to open the door to the bed-room. Bimla said that her husband hit the hand of one of the robbers who came into the house that night. Babu Lal is the brother of the virtual complainant who died before the trial. Babu Lal had come in the night having received a telephone call from his brother that his house is being robbed. While coming he had observed that someone was reversing his brother's vehicle which was used as a getaway vehicle. This witness said how he attacked the driver on his neck, shoulder and head with an iron pipe.

[20] The doctor who examined the appellant on the injuries suffered had given evidence in this case and produced the report. In this report against the cage "History related by the patient" the doctor states; "Allegedly struck in the hand and hit in the head by the owner of a house he has allegedly tried to rob on 14.6.08 in the evening". The report describes three injuries, two abrasions on the forehead and a laceration on the right hand. The report was marked without an objection. The appellant had admitted that his injuries were examined by the doctor who testified in court. The doctor had testified to what he was told by the appellant when he examined the appellant.

[21] With regard to the warning to be given about the danger of convicting upon the evidence of an accomplice unless that evidence is corroborated it was held in Jenkins v R [2004] HCA 57; (2004) 211 ALR 116 at 123 by the High Court of Australia that, "The rule exists for a reason. That reason is related to the potential unreliability of accomplices, an unreliability thought to be so well known in the experience of courts that judges are required, not merely to point out to jurors, but to tell them that it would be dangerous to convict upon the evidence of an accomplice unless it is corroborated. The principle source of unreliability, although it may be compounded by the circumstances of a particular case, is what is regarded as the natural tendency of an accomplice to minimise the accomplice's role in a criminal episode, and to exaggerate the role of others, including the accused. Accomplices are regarded by the law as a notoriously unreliable class of witness, having a special lack of objectivity. The warning to the jury is for the protection of the accused. The theory is that fairness of the trial process requires it. It is a warning that is to be related to the evidence upon which the jury may convict the accused. The reference to danger is to be accompanied by reference to a need to look for corroboration".

[22] Jenkins (supra) was adopted in Singh v The State [2006] FJSC 15; CAV 0007U.2005S (19 October 2006) by the Supreme Court of Fiji. The learned Judge said in paragraph 19 of his summing up that; "The prosecution called Vereniki Ravulolo as the 3rd witness. Before you consider his evidence I should caution you that he is an accomplice. If I explain you the word accomplice, a person who is taking part in the commission of offence with guilty mind is an accomplice. This witness is not a bystander. He himself said that he was called by this accused and he involved in the commission of the offence. The State that is the Director of Public Prosecution has not charged him. Further he is given immunity also. Under our law the DPP has the power to do so, but when you decide the guilty of the accused you should ask yourself whether this witness is telling the truth or he was (sic) putting another person in trouble and getting away". I have mentioned a number of corroborative evidence that would make the accomplice's evidence more reliable. I am of the view that the learned Judge had met the required standard in the warning given to the Assessors.

Grounds 5 and 6

[23] The appellant complained that the 1st charge of the Information by the Director of Public Prosecution is defective and has to be rejected. The appellant did not make oral submissions on this ground. The appellant does not explain adequately enough this ground in the written submissions tendered. The appellant had not taken any objection to this charge at the trial. Therefore I am of the view that it is too late in the day to raise an objection now with regard to a defective charge even if there was one. There is nothing to indicate that even if there was a defect that it prejudiced the appellant's case.

[24] The appellant also complained that there was a contradiction in the evidence of Bimla Wati with regard to the date the offence was committed. In terms of the charge the offence was committed on 14 June 2008. However the evidence of Bimla Wati was that it was committed on 15 June 2008. The appellant complained that the learned Judge did not direct the Assessors on this contradiction which was vital to the defence. Excepting Bimla Wati, all the other witnesses said that this incident took place on 14 June 2008. Bimla Wati did not identify the appellant and therefore she was not cross examined by the appellant. The date 15 June 2008 was mentioned by Bimla Wati once in examination in chief. I am of the view that this would not have caused a miscarriage of justice.

[25] There is no dispute that the robbery the appellant is charged with took place. The issue is with regard to the identification of the appellant. The occupants of the house where the robbery took place were husband and wife. The husband was the virtual complainant. Before the commencement of the trial the virtual complainant died which prompted the respondent to amend the Indictment with the addition of the wife of the virtual complainant as a witness. The witness Babu Lal is the brother of the virtual complainant. He had seen some people driving off in his brother's car at about 3 a. m. on this particular day when he went to his brother's house after receiving a telephone call that his brother was being robbed. None of these witnesses had identified the appellant. The appellant was identified by the accomplice. I find that the accomplice's evidence was amply corroborated. With this evidence properly directed Assessors would not have failed to convict the accused.

[26] I am of the view that grounds 5 and 6 are not arguable. The first four grounds are arguable and therefore leave is granted. However, on the reasons already given, those grounds are without merit and the appeal is dismissed.

Fernando JA

[27] I too agree with the reasons and the proposed orders of Basnayake JA.

The Orders of the Court are:

1. Leave granted on grounds 1 to 4.
2. Appeal dismissed.
   

...................................
Hon. Justice W. Calanchini
President, Court of Appeal

.................................
Hon. Justice E. Basnayake
Justice of Appeal

...................................
Hon. Justice P. Fernando
Justice of Appeal