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Ledua v State [2015] FJCA 66; AAU01115.2014 (28 May 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO: AAU 0115 OF 2014
(High Court Case No: 111/2010)

BETWEEN:

PENI LEDUA
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini, P
Fernando, JA
Temo, JA

Counsel : Mr. M. Yunus for the Appellant
Mr. L. J. Burney for the Respondent

Date of Hearing : 7 May 2015
Date of Ruling : 28 May 2015

JUDGMENT

Calanchini P

[1] I have read the draft judgment of Fernando JA. I agree that the appeal should be allowed and the conviction quashed.

Temo JA

[2] I have read His Lordship’s Justice of Appeal S. Fernando’s judgment, and I agree with his reasons and conclusions.

Fernando JA

[3] This is an appeal against the conviction and sentence of the Appellant who was charged with two others and who was convicted by the Magistrate’s Court of Suva acting on the extended jurisdiction of the High Court on a charge of Aggravated Robbery, contrary to Section 311(1) (a) of the Crimes Decree 2009.

[4] The Appellant was sentenced on 13 January 2011 to 5 years’ imprisonment with a non parole period of 4 years.

[5] The appellant in his Notice of Appeal set out the following grounds of Appeal against his conviction and sentence.

Grounds

1. The Learned Trial Magistrate erred in law and in fact when he did not hold a voir dire inquiry when there was a challenge to his confession in the caution interview.
   
2. The Learned Trial Magistrate erred in law when he failed to fix a new non-parole period for multiple sentences.
   

[6] On 15 May 2010 at about 2.00 am the complainant had returned home from the Bowling Club. After sometime she had heard movements from the porch and a sound like someone fiddling with the door. She had thought that it was her son and opened the door. Thereupon three young men had forced their way in. She had started screaming and the first youth started attacking her, she had fallen, and he had continued to attack her by standing on her back. The other two had gone into the bedrooms. She had been dragged into the bedroom and they had asked for money and threatened to kill her. The first youth had forced her to remove the rings on her finger threatening that he would chop her hand off if she didn’t. She had removed the three rings and given them to him. They had switched on the light and had ransacked the room and had kept on demanding to know where she kept her money. They had been in the room for about three minutes and had taken her Pulsar watch and mobile phone which had a red sticker on the back. The landlord who had heard her screams telephoned the Police and on hearing the landlord screaming, the three young men had left. The Police came to her home at about 5 or 6 am with one suspect and two others. She had recognized him as one of the young men who had come earlier that morning. The first suspect had given the names of the other two accused and they were arrested subsequently. All three suspects had been caution interviewed.

[7] At the trial the 1st Accused pleaded guilty and the trial proceeded against the 2nd and 3rd Accused (the Appellant). The complainant in her evidence when cross examined stated that she could not recall the two faces of the two accused. The 2nd Accused and the 3rd Accused (Appellant) were present in court but she could recall only the face of the 1st Accused (who had pleaded guilty). She further stated that she could remember just one but not the other two. The caution interview statements had been led in evidence and the Police Officer who recorded them had been cross-examined by the 2nd and 3rd Accused on the basis that they had been threatened and assaulted. No voir dire inquiry had been held by the Magistrate.

[8] The prosecution relied solely on the caution interview to prove the case against the 2nd and 3rd Accused (Appellant).

The First Ground of Appeal

[9] It was submitted on behalf of the Appellant that the confession of the Appellant was challenged when the Police Officer who recorded the statement gave evidence.

[10] The 3rd Accused (Appellant) who appeared in person without counsel cross examined the witness and the line of cross examination was that force and threats were used at the time the caution interview was held.

[11] In its submission the Respondent (State) has cited Rokonabete v The State; AAU 0048 of 2005 and Marika Tukana v The State; AAU 013 of 2011 and conceded that the Learned Magistrate erred in failing to conduct a voire dire inquiry when it became apparent that the Appellant who was unrepresented sought to challenge the circumstances of the voluntariness of the confession.

[12] In Rokonabete v The State [2006] FJCA 40; AAU 0048 of 2005S (14 July 2006) the Court of Appeal stated:

"[20] Under the Common Law, a court faced with a challenge to the admissibility of a confession was under a duty to ascertain that issue separately from the remainder of the prosecution evidence and the court had a discretion to decide, the particular circumstances of the case, whether a trial within a trial was necessary. However, unless the defence sought not to have one, it became an almost invariable practice to do so. Since the passing of the Police and Criminal Evidence Act, the English Magistrate's Courts have been obliged to hold a trial within a trial whenever there is a challenge to the admissibility of the statement. The Australia and New Zealand courts have followed a similar practice for many years.

[24] Whenever the court is advised that there is a challenge to the confession, it must hold a trial within a trial on the issue of admissibility unless counsel for the defence specifically declines such a hearing. When the accused is not represented, a trial within a trial must always be held. At the conclusion of the trial within a trial, a ruling must be given before the principal trial proceeds further. Where the confession is so crucial to the prosecution case that its exclusion will result in there being no case to answer, the trial within a trial should be held at the outset of the trial. In other cases, the court may decide to wait until the evidence of the disputed confession is to be led.

[13] In Marika Tukana v The State; AAU 13 of 2011 (which was the appeal concerning the 2nd Accused) the Court of Appeal followed the views expressed in Rokonabete's case and set aside and quashed the conviction.

[14] Since the Learned Magistrate had failed to hold a voir dire inquiry and proceeded to accept the confession of the Appellant, this ground of appeal succeeds.

[15] Counsel for the State informed court that the Director of Public Prosecutions (DPP) had decided not to have a re-trial in this case in the event that the appellants' conviction is set aside by this Court.

The Second Ground of Appeal

[16] The appellant has submitted that the Learned Trial Judge had erred in law when he failed to fix a new non parole period for multiple sentences.

[17] The Respondent (State) has conceded that the Learned Magistrate did, indeed, fall into error in failing to fix a single non parole period pursuant to Section 20 of the Sentencing and Penalties Decree 2009.

[18] However in view of the findings of the Court on the first Ground of Appeal there is no purpose to consider the second Ground of Appeal.

Conclusion

[19] The conviction against the accused was based entirely on the 'caution statement'. The Learned Magistrate erred in admitting the 'caution statement' without holding a voir dire inquiry. The conviction and sentence imposed by the learned Magistrate is quashed. Having considered the submission made by the State on the position of the Director of Public Prosecutions that the State does not intend to have a retrial; no retrial is ordered.

The Orders of the Court are:

1. Appeal is allowed.
2. The conviction of the Appellant is set aside and quashed.
   

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

..........................................
Hon. Justice S. Fernando
Justice of Appeal

..........................................
Hon. Justice S. Temo
Justice of Appeal