|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 0067 of 2017
[In the High Court at Lautoka Case No. HAC 047 of 2014]
BETWEEN:
ULAIASI QALOMAI
Appellant
AND:
STATE
Respondent
Coram : Prematilaka, JA
Counsel: Appellant in person
Mr. S. Babitu for the Respondent
Date of Hearing: 18 August 2020
Date of Ruling: 25 August 2020
RULING
[1] The appellant had been indicted in the High Court of Suva on two counts of Act with Intent to Cause Grievous Harm [section 255(a)], one count of Aggravated robbery [section 311(1)(a)] and Damage to property [section 369(1)] of the Crimes Act, 2009 committed with 04 others [three of whom are the appellants in AAU0092/2016, AAU 099/2016 and AAU0100/2016] on 06 April 2014 at Nadi in the Western Division.
[2] The information read as follows.
‘FIRST COUNT
Statement of Offence
ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to on 255 (a) of t of the Crimes Decree 44 of 2009.
Particulars of Offence
PENI YALIBULA, MIKAELE TURAGANIVALU, RUSIATE TEMO ULUIBAU, ULAIASI AI and  T QAQANIVALU on60;on the 6th day oil 201l 2014 at Nadi in the Western Division, with intent to cause grievous harm to MANI RAM,;unlawfullyfully wounded the said MANI RAM by ki,kingting and str him him in the head with a liqa liquor bottle.
SECOND COUNT
Statement of Offence/b>ACT WITH INTENT TO CAUSE GRIEVOUS HARM:HARM:< Contrary to Section 2) of t of the Crimes Decree 44 of 2009.
Particulars of Offence
PENI YALIBULA, MIKAELE TURAGANIVALU, RUSIATE ULUIBAU, ULAIASI QALOMAI and TEVITTEVITA QAQANIVA>b> on the 6th day of April 2t 4 at Nadi in the Western Division, with intent to cause grievous harm to NAUSAD MOHAMMED,&#/b>unlb>unlawfully wounded the said NAUSAAMMED#160;cking, ing, hittihitting and striking him in the head with with a liquor bottle.
THIRD COUNT
>Statement of Offf Offence
AGGRAVATED ROBBERY: #160;Contro Section 311 (1)1 (1) (a) of the Crimes Decree 2009.
Particulars of Offence
PENI YALIBULA, MIKAELE TURAGAN, RUSIATE TEMO ULUIBAU, ULAIASI QALOMAI and0;and EVITA QAQANIVAANIVALU on theday of April 2014 at 4 at Nadi in the Western Division, robbedMANI RAMof assorted liquor valued at $3,400.00, assorted cigarettes valued at $1,300.0 $5,3 cash all to the the total value of $10,000.00 and immediamediately before the robbery, force was used on the said MANI RAM./i>
FORTH COUNT
Statement of Offence
DAMAGROPERTY: Contraryection 369 (1) of t of the Crimes Decree 2009.
>Particulars of Offence
PENI YALIBULA, MIKAELE TURAGANIVALU, RUSIATE TEMO ULUIBAU, ULAIASI QALOMAI and [3] After trial, the assessors expressed a unanimous opinion of guilty against the appellant on all charges on 06 June 2016. The learned
High Coudge in his judgment on 13 June 2016 had agreed with the ashe assessors and convicted the appellant as charged. He had been
sentenced on 11 July 2016 to 10 years of imprisonment for all offences (aggregate sentence) with a non-parole period of 07 years.
[4] The appellant being dissatisfied with the conviction had in person signed an untimely application for leave to appeal on 11 April
2017 (received by the CA registry on 10 May 2017). The Legal aid Commission had filed an application for enlargement of time with
amended grounds of appeal, appellant’s affidavit explaining the delay and written submissions on 19 June 2019. However, the
appellant informed this court on 10 June 2020 that he would no longer require the services of the Legal Aid Commission and the LAC
accordingly withdrew from the case. The appellant on the same day tendered written submission settled by him along with amended grounds
of appeal. The state had filed its submissions on 17 August 2020. [5] Presently, guidance for the determination of an application for extension of time within which an application for leave to appeal
may be filed, is given in the decisions in Rasaku v State CAV0001, 0f 2009: 24 April pril 2013 [2013] FJSC 4, Kumar v State; Sinu v State CAV0001 of: 21 August #160;#160;ef="h/www.paww.paclii.clii.org/fj/cases/FJSC/2012/17.html" titletitle="View
Case">[2012] FJSC 17. ‘[4] Appellate courts examine five factors by way of a principled approach to such applications. Those factors are: (i) The refor tilure to file wite within thin time. [7] Rasaku the Supreme Court furteer held ‘These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application
for enlargement of time. Ultly, it is for the court to t to uphold its own rules, while always endeavouring to avoid or redress any
grave injustice that might result from the strict application of the rules of court.’ [8] Under the third and fourth factors in Kumar, test for enlargement of time now is ‘real prospect of success’. I would rather consider the third and fourth factors in Kumar first before looking at the other factors which will be considered, if necessary, in the end. In Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019) the Court of Appeal said. [9] Grounds of appeal against conviction [10] The prosecution evidence of the case as summarised by the learned High Court judge in the sentencing order is as follows. ‘[3] The Complainant, Mr. Mani Ram, had been running a shop in Matintar, Nadi, for the past 40 years. To cater to customers
who enjoy the night life in the Airport City of Nadi, he kept his shop open till late night in the company of his security guard,
Mr. Naushad. Five accused came in a mini-van, got off near the shop and started drinking alcohol. Around 3 a.m., they came to the
counter of the complainant’s shop in the guise of customers and tried to forcibly enter the shop through the opening at the
counter. Failing of which they broke off the rear door and entered the shop forcibly. They went on rampage in the shop completely
disregarding personal and property rights of the shop keepers. They wounded the complainant and his security guard kicking, hitting
and striking brutally with bottles, and destroyed the property. They robbed valuable goods and cash. 1st accused was apprehered hand handed by members of the public while others fled with the loot. The entire ‘horrific drama’
lasted nearly ight minutes was being secretly recorded by six surveillance cameras installed in the shop.shop. The CCTV footages
obtained from cameras helped the police to identify the culprits who were later apprehended. 1st ad made a confession to polo police. Other accused were positively identified by the prosecution witnesses. The CCTV footage displayed
during trial showed a systc and coordinated brutal attack on the victims and their prir property.’ 01st ground of appeal [11] The appellant’s complaint is that he should not have been tried in absentia and the ex parte trial had violated his constitutional rights to a fair trial under section 15(1) of the Constitution. He also submits that the trial
in his absence had deprived him of his rights under section 14(2)(j), 14(2)(l) of the Constitution and sections 171(2) and 179(1)(b)(i)
and (ii) of the Criminal Procedure Act, 2009. [12] According to the ruling delivered by the learned trial judge on 25 May 2016 allowing the application by the prosecution for the
appellant to be tried in absentia, he had absconded after the voir dire inquiry was concluded and a bench warrant had been issued for his arrest. After he was arrested later the appellant had sought bail
but refused by court. Thereafter, the court had fixed the case for trial in the presence of the appellant. In the meantime the appellant
had been produced in the magistrate’s court in Nadi in respect of another case where he had been granted bail by the learned
Magistrate without any knowledge of the High Court case already fixed for trial. The appellant with the full knowledge that his application
for bail pending trial had been refused by the High Court and a date for the commencement of the trial had been fixed, had furnished
bail in the magistrate’s court and secured his release from the remand prison. Thereafter, he had failed to appear on the date
the trial was scheduled to commence in the High Court or on any other subsequent dates from 23 May 2016 to 03 June 2016 during the
trial. Finally, after being at large for months he had been arrested only in September 2016. [13] The trial judge in allowing the state’s application to try the appellant in absentia had stated as follows: ‘[10] The Constitution of the Republic of Fiji 2013 under Article 14(2) (h) specifically provides for trial in absentiach statestates: Every person has a right (h) to be present when being tried, unless- (i) the court is satisfied the person has been served with a summons or similar processocess requiring his or her attendance at the
trial, and has chosen not to attend; or (ii) the conduct of the person is such that the continuation of the proceedings in hiser pre ence is impracticacticable and the court has ordered him or her to be removed and the trial to proceed in hiser ab; [11] The Respondent was aware of this case and the trial datl date whee when he ‘escaped’ from remantody. Remand Committal
Warrant had been issued by this Court for him to be produced before fore this Court. He failed to appear in court on the day fixed
for trial. Warrant was issued to arrest him. State has not been able to execute the warrant. [12] The Respondent is charged with four others who are awaiting speedy disposal of this case. There are number of eye witnesses and
their memory will fade away with the passage of time. Prosecution is greatly prejudiced if the trial is further delayed. Long delay
would cause irreparable damage to the Prosecution and to the justice system. The general public will lose confidence in the system.
(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court's consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?
(i) Trial in Absentia was an injustice proceeding giving rise to a full denial of the Appellants right to a fair trial pursuant to
Section 15 (1) of the 2013 Fiji Constitution;
(ii) Gross miscarriage of Justice has occurred when the Learned Judge has overlooked and /or has failed to carefully scrutinize with
utmost caution the risk and inherent danger of the Dock Identification;
(iii) That the Appellant’s conviction is unsafe and unsatisfactory due to the acceptance of the Dock Identification evidence
without any prior identification parade conducted by the Police;
(iv) The trial judge’s failure to direct his mind on the Police Statement of Jona Toga which was not credible and cannot be
used against me because of the omission in identifying me as those alleged robbers gives rise to the doubt of the question whether
the credibility of Jona Tonga must be accepted or not. The evidence in chief provided by Jona Toga contradicts the statement given
to the Police by him. And the failure to accept the discrepancy has directly prejudice me; and denied me the chance of being acquitted;
and
(v) A Substantial Question of law is involved when the Learned Judge upheld to allow the trial proper proceeding to continue even
though the charge statements has already being dealt during the voire dire ruling as being inadmissible.
[14] [14] I am mindful that facts that Respondent's right to a fair trial have to be safeguarded at the trial in absentia evoughhhe is not presenthe nthe trial. Assessors shall ball be clearly warned not to hold the absence of the Respondent against him. I would advise the prosecutiodisclll the evidence against him on relevant material rial factsfacts and highlight evidence advantageous to the Respondent in my summing up to the assessors. I will also warn the assessors that the absence of the accused is not an admission of guilt and adds nothing to the prosecution case. I will also take steps to expose weaknesses of the prosecution case in the summing up.
[14] In fact the trial judge had warned the assessors in paragraph 37 as follows.
‘37. I also caution you about evidence adduced against the 4th accused Mr. Ulaiaslaiasi Qalomai. He was not present in Court and not represented by a Counsel. He did not have the opportunity to cross examine the witnesses called by the Prosecution. Yot not draw the inference that he evaded court and waived hied his right to be present in Court and other rights available to him in conducting his Defence because he was guilty. That does not mean that evidence against him should be rejected. I only caution you and remind that evidence against him was not tested by cross examination.
[15] Therefore, this ground of appeal has no reasonable prospect of success.
02nd and 03rd grounds of appeal
[16] The appellant is challenging his dock identification at the voir dire inquiry under the second ground of appeal on the premise that it was done without a prior identification parade. However, it is clear from the evidence that his identification is not that of a first time dock identification but he had been clearly identified before and whilst committing the crime at the crime scene by one of his schoolmates named Mr. Jone Toga. I quote from the summing-up.
119. 4th accused was not present during trial. Mr. Jona Toga said that he recognised Ulaiasi Qalomai before and during the robbery. He knew Ulaiasias a school mate atka Public. Toga had talked to Ulaiasi in that crucial morning soon before the robbery. He h He had seen Ulaiasi steeling inside the Daily Shop. In this regard, Mr. Toga had given a statement to police. He had earlier identified Ulaiasi in this case when he testified as a witness. Having considered the caution I have given in respect of trials taken up in the absence of an accused, you decide what weight you should give to Mr. Tog’s evidence.
[17] The learned trial judge had himself considered identification evidence against the appellant in the judgment as follows.
‘24. Trial proceeded in the absence of the 4th accused Ulaiasi Qalomai. Witness, Jona Toga said that he recognised Ulaiasi Qalomai before and during the robbery. Toga had even talked to Ulaiasi few minutes before the robbery. He had seen Ulaiasi steeling inside the Shop. In this regard, Toga Toga had given a statement to police. Togahad known Ulaiasi as a school mate at Namaka Public school.
[18] The appellant’s legal submissions contained in his written submissions are irrelevant to the facts of his case as his was not a first time dock identification. Dock identification at the voir dire inquiry was only a formality.
[19] The appellant now makes another submission to the effect that Mr. Jone Toga in his police statement had said that he and the appellant had not met nor had they consumed liquor together prior to the robbery. Jone had also said to the police that he was consuming liquor with others and saw the robbery happening and identified only the person caught after the robbery who was not the appellant. However, the appellant also submits that Jone had given evidence at the vior dire inquiry consistent with his evidence at the trial of his identification of the appellant at the crime scene but does not say that he confronted and contradicted Jone with his alleged police statement. In fact he admits that he had not done so at the voir dire inquiry as his focus was on challenging his confession and due to lack of legal assistance.
[20] It appears that the appellant had successfully challenged his confessional statement without any legal assistance and therefore, there was no reason why he could not have challenged Jone when the witness gave evidence implicating him with the robbery as an eye witness and a known person.
[21] Secondly, even if the appellant was preoccupied with challenging his confession at the voir dire inquiry but not his identification by Jone, he should have known that Jone would give the same evidence at the trial proper implicating him in the crime and he should make use of that opportunity to challenge him with his alleged police statement as to his identification. The appellant instead of doing that deliberately kept away from trial proceedings.
[22] There is no reasonable prospect of success in these two grounds of appeal.
04th ground of appeal
[23] The appellant’s complaint here is on accepting Mr. Jone Toga’s evidence vis-à-vis his alleged police statement. This matter has already been dealt with under the 2nd and 3rd grounds of appeal. This ground of appeal too has no reasonable prospect of success.
05th ground of appeal
[24] The appellant argues that because his cautioned statement had been ruled inadmissible the subsequent trial became invalid. The cautioned statement had been ruled out by the trial judge in his ruling on 28 May 2015 due to the presence of injuries on the appellant unexplained by the prosecution.
‘(55). According to prosecution witnesses, 4th and the 5th accused did not have any serious injuries at the time of the arrest. Police Constable Jona Toga who interviewed the 4th accused on 24th May 2014 did not notice any injury at all on the 4th accused's face during the interview. Police witness Leone Vurukami who interviewed the 5th accused also did not notice any injury on 5th accused. Then how come the injuries noted by Dr. Terry who examined both of them on 27th May 2014 came into being? Certain answer would be that they had been assaulted at the Nadi Police Station.’
[25] However, the very purpose of the voir dire inquiry was to determine the voluntariness of the confessional statements. The appellant had successfully convinced the trial judge that his cautioned interview had not been voluntarily made and should not be admitted. That decision did not in any way affect the trial proper against the appellant.
[26] The appellant’s argument is baseless and his ground of appeal is frivolous and vexatious.
[27] The delay is substantial and the reasons for the delay are unconvincing though an extension of time would not necessarily prejudice the respondent.
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJCA/2020/146.html
