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Masikerei v State [2023] FJCA 11; AAU028.2020 & AAU048.2019 (27 January 2023)

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

CRIMINAL APPEAL NO.AAU 0028 of 2020 & AAU48 of 2019
[High Court of Suva Criminal Case No. HAC 39 of 2018]

BETWEEN:

AMANI MASIKEREI (AAU 0028 of 2020)
SAMUELA NATOKALAU (AAU 48 of 2019)
Appellants

AND:

STATE
Respondent

Coram: Prematilaka, RJA

Counsel: Appellants in person
: Mr. E. Samisoni for the Respondent

Date of Hearing: 25 January 2022
Date of Ruling: 27 January 2022

RULING

[1] The appellants had been charged in the High Court of Suva on a single count of Cultivation of Illicit Drugs contrary to section 5(a) of the Illegal Drugs Control Act of 2004 committed on 13 January 2018 at Natua Farm, Levuka-i-yale, Kadavu in the Southern Division. The information read as follows:

Statement of Offence

UNLAWFUL CULTIVATION OF ILLICIT DRUGS: Contrary to Section 5 (a) of the Illicit Drugs Control Act 2004.

Particulars of Offence

AMANI MASIKEREI and SAMUELA NATOKALAU jointly on the 13^th of January 2018 at Natua Farm, Levuka-i-yale, Kadavu in the Southern Division, without lawful authority cultivated one thousand four hundred and forty (1440) plants of illicit drugs known as Cannabis Sativa, weighting 1046.8kg.

[2] At the conclusion of the summing-up, the assessors had unanimously opined that the 01^st appellant was guilty as charged. The learned trial judge had agreed with the assessors, convicted the appellant and sentenced him on 13 November 2018 to 18 years and 02 months of imprisonment subject to a non-parole period of 14 year and 02 months. The 02^nd appellant had pleaded guilty after the trial judge decided to admit his cautioned interview. He was sentenced on 13 November 2018 to 17 years and 02 months of imprisonment with a 13 year and 02 months non-parole period.

[3] Both appellants had preferred separate untimely appeals against conviction and sentence followed up by several amended grounds of appeal. The delay for the 01^st appellant and 02^nd appellant are about 01 year and 05 months and 04 months and respectively.

[4] The summary of facts according to the summing-up are as follows:

‘23. According to the evidence given by Sergeant Moape, that he had received an information about this marijuana farm from an informer. He had then organized a team of police officers from the Kadavu Police Station and deployed them to this operation in the early morning of 13^th of January 2018. The team was formed by SC Waisea, SC Vakuru Sawalu, PC Timoci and SC Kepurieli. The team had travelled to Levuka-i-yale village by boat. From there, they had walked to the farm. The farm was in the interior of the Levuka-i-yale village. It had taken nearly three hours for them to reach to the farm. You may recall that SC Waisea, SC Vakuru and PC Timoci explained about the path that they took to reach to the farm. They did not noticed any crops were growing along this path.

24. When the officers reached to the farm, they were confronted by some i-taukei youths. You have heard the evidence of SC Waisea, where he said in his cross-examination that other officers of the team were confronted by these i-taukei youths. PC Timoci said that three unknown i-taukei youths confronted with them by throwing stones at them. SC Vakuru had not seen how many of them, but he too in his evidence said that they were confronted by some unknown i-taukei youths when they entered into the farm. Due to this confrontation the team of police officers had to retreat back and re-group in the bushes.
    
25. You have heard the evidence of SC Waisea, where he said that they then made an observation point at the ridge and observed the farm. During their observation they have noticed that two unknown i-taukei youths entering into the farm and started weeding and watering marijuana plants. They had used buckets to take water from the nearby creek and also cane knife to weed the plantation. According to the evidence of SC Waisea, SC Vakuru and PC Timoci, they had observed these two young men for about two hours.
26. You may recall that SC Waisea made a sketch plan of the farm. According to the sketch plan, they had observed the farm from a location above the ridge of the western side of the farm. SC Waisea had a compass to determine the directions. The farm was located in between two ridges. One was at the western side of the farm and the other one was at the eastern side of the farm. There is a river which flows in the middle of the farm, dividing it to two parts. The marijuana had been grown in five different plots. SC Waisea in his sketch plan marked these five plots. They have noticed that the two unknown young men were watering and weeding at the second plot.
27. SC Vakuru in his evidence said that they observed the farm from the ridge. The height of the ridge was 40 meters. PC Timoci said that they observed from an incline angle. They had observed the two young men for about two hours. After weeding and watering of the plants at plot two, the two young men had then gone to the tarpaulin hut which was located at the northern end of the farm. The hut was located after the fourth and third plots. The two young men had gone there and started to smoke marijuana. The officers had then approached the hut from the northern end of the farm. When they entered into the farm the two youth had started to run away. One of them had tried to run towards the river side. The police officers had managed to arrest him near the second plot. That was the accused, Amani Masikerei. The three officers who gave evidence stated that they did not see any other persons in the farm apart from these two young men. Subsequent to the arrest of the accused, PC Timoci had called Sergeant Moape. Sergeant Moape had then came to the farm with a team. Sergeant Moape had then escorted the accused to the Kadavu Police Station.
28. You can recall that the learned counsel for the defence cross-examined the witnesses of the prosecution on various issues. Specially, the learned counsel cross-examined SC Waisea, SC Vakuru and PC Timoci about the observation that they made regarding the two young men when they were watering and weeding the plants. These three witnesses (SC Waisea, SC Vakuru and PC Timoci) said that they clearly observed the two young men and noting impeded their view of the two young men. They admitted that some of the plots in the farm had grown marijuana plants with the height of six feet. However, they had a clear view of the two young men.
33. You may recall that the learned counsel for the defence cross-examined the witnesses of the prosecution, specially first three witnesses who were part of the team that raided the farm, about the vegetation around the farm, the height of the plants, the layout of the farm, location of the observation point and the view of the farm that these three officers had from the observation point. The defence in their cross-examination was trying to suggest that these three witnesses may have mistaken or made an error in viewing and identifying the accused as one of the two young men that were weeding and watering in the farm. The learned counsel further suggested these witnesses that there were five young men in the farm instead of two. However, these three witnesses denied that suggestion and said that they did not observe any other person apart from the two young men. Moreover, the defence in their cross-examination tried to suggest that the evidence of these three witnesses is not truthful as there is no possibility of seeing the two young men from the place that they were observing.
35. SC Waisea explained the location of the farm using his sketch plan where he said that they observed the farm for about two hours from the ridge at the western side of the farm. SC Vakuru said that the height of the ridge is about 40 meters. PC Timoci said that they had an incline view of the farm from the observation point. PC Timoci explained it by using the clock, where he said that if he was at the 12 o’ clock position the view of the farm was at the 3 o’ clock position. Moreover, they said that they had observed the farm for about two hours. They had not seen anyone else apart from the two young men who were watering and weeding the farm during the time of their observation. They have further observed the two men were going to the tarpaulin hut where they had started to smoke marijuana. At that point of time the police officers had approached the two men from the northern end of the farm.’
    

[5] The factors to be considered in the matter of enlargement of time are (i) the reason for the failure to file within time (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? (vide Rasaku v State CAV0009, 0013 of 2009: 24 April 2013 [2013] FJSC 4 and Kumar v State; Sinu v State CAV0001 of 2009: 21 August 2012 [2012] FJSC 17).

[6] These factors are not to be considered and evaluated in a mechanistic way as if they are on par with each other and carry equal importance relative to one another in every case. Generally, where the delay is minimal or there is a compelling explanation for a delay, it may be appropriate to subject the prospects in the appeal to rather less scrutiny than would be appropriate in cases of inordinate delay or delay that has not been entirely satisfactorily explained. No party in breach of the relevant procedural rules and timelines has an entailment to an extension of time and it is only in deserving cases where it is necessary to enable substantial justice to be done that breach will be excused [vide Lim Hong Kheng v Public Prosecutor [2006] SGHC 100)]. In practice an unrepresented appellant would usually deserve more leniency in terms of the length of delay and the reasons for the delay compared to an appellant assisted by a legal practitioner.

[7] The delay of the appeals are substantial. The 01^st appellant’s explanation given for his belated appeal is that one Mr. L. Ketaki of Legal Aid Commission who defended him was expected to file his appeal but he had not done so. However, one Ms. M. Ratidara’s appearance had been recorded in the summing-up, judgment and sentencing orders for both appellants. The 02^nd appellant does not appear to have offered any specific explanation for the delay. Nevertheless, I would see whether there is a real prospect of success for the belated ground of appeal against sentence in terms of merits [vide Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019]. The respondent has not averred any prejudice that would be caused by an enlargement of time to appeal.

[8] Guidelines to be followed when a sentence is challenged in appeal are whether the sentencing judge (i) acted upon a wrong principle; (ii) allowed extraneous or irrelevant matters to guide or affect him (iii) mistook the facts and (iv) failed to take into account some relevant considerations [vide Naisua v State [2013] FJSC 14; CAV0010 of 2013 (20 November 2013); House v The King [1936] HCA 40; (1936) 55 CLR 499, Kim Nam Bae v The State Criminal Appeal No.AAU0015 and Chirk King Yam v The State Criminal Appeal No.AAU0095 of 2011)].

[9] Grounds of appeal urged on behalf of the 01^st appellant are as follows:

Conviction

Ground 1

THAT the substantial miscarriage of justice has occurred when the trial judge did not consider, analyse, evaluate or make an independent assessment on the appellant’s Police caution interview before affirming the guilty verdict of the assessors.

Ground 2

THAT the appellant replacement defense counsel made a significant error by directing the appellant to remain silent at his defense and instructing him not to call any defence witness who was present in court affecting the trial of the appellant.

Ground 3

THAT the appellant conviction was doubtful and unsafe because there was no cane knife nor buckets recovered by the Arresting Police Officers at the crime scene on the day of arrest to support or confirm the crucial element of cultivation [physical act] thus the absence automatically discredit the officers statements and oath evidence and that the benefit of doubt should be given to the appellant in respect.

Ground 4

THAT the appellant was seriously prejudiced when the trial judge did not consider the genuine reason given to the court to seek a short adjournment to discuss his defence with his defence trial counsel [Mr. Vuataki] given the unexpected counsel interchange.

Ground 5

THAT the appellant conviction was unsafe and dangerous since the appellant was convicted for cultivating the [5] five plots of illicit marijuana plants in fact the appellant was allegedly seen cultivating only the 2^nd plot as alleged by the Police and not the whole [5] plots as considered by the court in its judgment and sentence.

Ground 6

THAT the conviction is doubtful since the element of knowledge or belief that the appellant was cultivating illicit drugs was not proved beyond reasonable doubt considering the appellant confession to the Police.

Ground 7

THAT the substantial miscarriage of justice has occasioned when there was no direction given to the assessors or how to deal with or consider the content of the appellant’s caution interview and also to determine whether the contents of the Police interview has satisfied the elements of the offence charged by the Police.

Sentence

Ground 1

THAT the Sentencing Judge erred when he failed to provide justifiable reason for imposing a very high starting point of [18 years] for this offence; since the sentencing tariff for this offence is 7-14 years imprisonment as decided in the case of State v Sailosi Tuidama [2016] FJHC 1027: HAA 29.2016.

Ground 2

Double counting.

Ground 3

THAT applied wrong principle in sentencing and taking into account irrelevant matters.

[10] Grounds of appeal urged on behalf of the 02^nd appellant are as follows:

Conviction

Ground 1

THAT the Learned Trial Judge erred in law when he failed to consider that there was several inconsistencies in the witness account to Police and the one given in Court thus causing a substantial miscarriage of justice.

Ground 2

THAT the Learned Trial Judge erred in law in regards to the Voir Dire application and ruling and disregarded the equivocation of the guilty plea.

Ground 3

THAT the Learned Trial Judge erred in law and in not accepting the evidence given by the appellant without cogent reasoning.

Ground 4

THAT the Learned Trial Judge erred in law in not independently analysing the evidence and failed to effectively canvas the defence thereby encumbering the rights of the appellant to a fair trial.

Ground 5

THAT the Learned Trial Judge erred in law and principle as the reasonableness of the guilty plea cannot be supported by evidence.

Ground 6

THAT the Learned Trial Judge erred in law as the evidence adduced in Court throws a reasonable doubt that the appellant is guilty of the offence which is a substantial prejudice to him.

Ground 7

THAT the Learned Trial Judge erred in law as the conviction is unsafe and unsatisfactory resulting in a gross miscarriage of justice.

Ground 8

THAT the Learned Trial Judge erred in law as the elements of the charge has not been proven beyond reasonable doubt.

Ground 9

THAT the Learned Trial Judge erred in law as the charges were lacking in precision and wanting in details.

Ground 10

THAT the Learned Trial Judge erred in law and principle in finding the appellant guilty of Cultivation of Illicit Drugs and as such a gross miscarriage of justice has occurred.

Ground 11

THAT the Learned Trial and Sentencing Judge he erred in law and in fact in failing to evaluate or assess the distinctive offences of cultivation, possession and supplying being different in each own ways when imputing the criminal liability and punishment.

Ground 12

THAT the appellant was prejudiced or without having the knowledge or criminal proceeding and court signed the agreed facts without being informed of its consequences.

Ground 13

THAT the appellant was misdirected/mislead by the Legal Aid counsel as to plead guilty to the offence after the hearing of the Voir Dire where caution interview was admissible for a lower sentence or suspended.

Ground 14

THAT the Learned Sentencing Judge failed to exclude the caution interview/confessions of the accused that were not voluntarily or supported by law as the appellant was assaulted and threatened in his 3 days custody with police. If the confession was voluntarily then the appellant’s production to court would have been in Constitutional time limit.

Ground 15

THAT the appellant submits the delay in laying charges and the hindrance in due process was violation of Judges Rules (c) (d) (e) and non-conformity with these rules may render answers and statements liable to have been excluded from evidence in subsequent criminal proceedings.

Ground 16

THAT the appellant submit his excessive detention prior to his production in court, section 27 (3) (b) and of the Constitution provides:

(3) Every person arrested for the suspected offence has the right, (b) to be brought before a court no later than 48 hours after time of arrest, or if that reasonable not possible as soon as thereafter, hence the appellant’s detention for more than the Constitutional time limit amounts to an infringement of the appellants Constitutional right which caused a substantial miscarriage of justice.

Ground 17

THAT the Learned Sentencing Judge failed to consider the elements of the charge against the appellant consistent with the appellant’s plea or guilty before sentencing.

Ground 18

THAT the Learned Trial Judge failed to sufficiently directing himself on the liability of prosecution evidence and the caution interview of the appellant on incriminating statements.

Ground 19

THAT the Learned Trial Judge erred in law and fact in failing to observe the appellant credibility in constituting in the alleged offence.

Ground 20

THAT the Learned Trial Judge failed to take proper consideration and guidelines in sentencing the appellant as there was no direct, linking, circumstantial or material evidence with the appellant by prosecution to sustain the charge for immediate custodial sentence.

Ground 21

THAT the Learned Trial Judge erred in law in prejudicing the appellant in his right to fair trial as the counsel for the appellant had gone for overseas treatment and the judge informed the appellant to withdraw from counsel and seek another lawyer or apply for Legal Aid to proceed with trial as he was impulsive for the hearing to proceed and unsuitably I pleaded guilty to the offence as I could not find any solace being in custody.

Sentence

Ground 1

THAT the sentence imposed is wrong in principle in regards to the circumstances of the case.

Ground 2

THAT the Learned Trial Judge took extraneous and irrelevant matters to guide and affect him.

Ground 3

THAT the Learned Trial Judge failed to consider most of the mitigating factors of the appellant and pronounced a severe sentence.

Ground 4

THAT the Learned Trial Judge mistook the facts of the case and pronounced a lengthy sentence.

Ground 5

THAT the Learned Trial Judge acted upon the wrong principle when he took into consideration the nature of the offence and the aggravating factors to impose the sentence of imprisonment.

Ground 6

THAT the sentence is harsh, excessive and inhumane and does not conform to the values enshrined in the Constitution.

Ground 7

THAT the non-parole term is unconstitutional as it provokes mental, emotional and physical torture.

Ground 8

THAT the non-parole term deny the liberty to the appellant and this is perpetual punishment.

Ground 9

THAT the non-parole term is discriminatory as it does not encourage any real rehabilitation.

Ground 10

THAT this Learned Sentencing Judge acted wrong in principle, allowed irrelevant extraneous matters to guide him and affect him and did not take into account some relevant considerations before passing the sentence which was not according to appellants criminal liability and punishment.

Ground 11

THAT the appellant appeal against sentence being manifestly harsh and excessive and wrong in principle in all circumstances of the case.

01^st appellant

01^st and 07^th grounds of appeal

[11] The prosecution had not relied on the appellant’s cautioned interview. Nor had it been led in evidence by the defense either. Thus, there is no merit in these grounds of appeal.

02^nd grounds of appeal

[12] This ground of appeal is based on criticism of the appellant’s trial counsel, particularly as to his advice to remain silent and not to call defence witnesses.

[13] This court has not heard from his trial counsel. No ground of appeal based on criticism of trial counsel would be entertained leave aside being upheld unless the appellant has followed the procedure laid down by the Court of Appeal in Chand v State [2019] FJCA 254; AAU0078.2013 (28 November 2019) in pursuing such a ground of appeal as affirmed by the Supreme Court in Chand v State [2022] FJSC 28; CAV0001.2020 (27 October 2022). The appellant has failed to do so and therefore this grounds of appeal cannot be entertained unless and until the prescribed procedure is followed.

03^rd grounds of appeal

[14] The appellant complains that the prosecution did not produce the cane knife and the bucket recovered which were allegedly used in ‘cultivating’ the marijuana farm. In terms of section 2 of the Illicit Drugs Control Act 2004 ‘cultivate’ includes nurturing and tending. Thus, weeding and watering constitute cultivation. There is nothing to suggest that the defense had challenged the police to produce those tools at the trial. Summing-up shows that the appellants were weeding and watering the marijuana farm. Non-production of the tools is not fatal to the conviction at all.

04^th ground of appeal

[15] There is nothing on record to substantiate the allegation of the appellant as to lack of time for him to discuss with his trial counsel his defense to prepare for the trial. Mr. Samisoni who was one of the prosecuting counsel cannot recall any such application being made and denied by the trial judge.

05^th ground of appeal

[16] The prosecution had conduced the case on the basis that there was one plantation consisting of 05 plots. It does not really matter whether the appellant was seen doing ‘cultivation’ only on one of the plots.

06^th ground of appeal

[17] As stated earlier the confessional statement was not part of the trial proceedings. If the appellant so wished he could have produced it which he had failed to do. Thus, the contents of it whether inculpatory or exculpatory are irrelevant.

02^nd appellant (conviction)

[18] The 01, 03, 04, 06, 11, 12, 15, 16, 18 and 19 grounds of appeal are irrelevant as the appellant pleaded guilty after admitting the summary of facts.

02^nd and 14^th ground of appeal

[19] They relate to the cautioned interview and the voir dire inquiry and ruling which are irrelevant as the appellant subsequently pleaded guilty.

05^th, 07^th, 10^th and 21^st grounds of appeal

[20] These appeal grounds are concerned with the appellant’s guilty plea. The trial judge had stated at paragraph 3 in his sentencing order that he was satisfied that the appellant had fully comprehended the legal effect of the guilty plea and it was voluntary and free from influence. At paragraph 4 the trial judge had stated that the summary of facts had revealed that the appellant with another had cultivated 1440 plants of cannabis sativa at a farm at Natuva, Levuka-i-yale, Kadavu.

[21] There is no equivocation on record at all, for after his cautioned interview was admitted where he had obviously confessed to his involvement in the cultivation, it was not illogical for his counsel to advise him and for him to accept that advice and plead guilty to avoid the inevitable conviction in expectation of a discount in the sentence which he eventually got. I do not see anything unsafe or unsatisfactory in the verdict of guilty.

08^th, 09^th and 17^th ground of appeal

[22] The appellant questions the validity of the charge. There is no defect in the elements or particulars discernible in the charge which is based on joint enterprise.

13^th ground of appeal

[23] This ground of appeal is based on criticism of his trial counsel, particularly as to his advice to remain silent and not to call defence witnesses.

[24] This court has not heard from his trial counsel. No ground of appeal based on criticism of trial counsel would be entertained leave aside being upheld unless the appellant has followed the procedure laid down by the Court of Appeal in Chand v State [2019] FJCA 254; AAU0078.2013 (28 November 2019) in pursuing such a ground of appeal as affirmed by the Supreme Court in Chand v State [2022] FJSC 28; CAV0001.2020 (27 October 2022). The appellant has failed to do so and therefore this grounds of appeal cannot be entertained unless and until the prescribed procedure is followed.

11^th and 20^th grounds of appeal

[25] These are relevant to the sentence appeal rather than conviction appeal.

Sentence appeal (01^st and 02^nd appellants)

[26] The appellants fall under category 4 of sentencing guidelines in Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) where the sentencing tariff for possession of cannabis sativa of 4000g or above was set between 07-14 years of imprisonment.

[27] Enlargement of time to appeal against sentence could be granted on the general state of confusion and divergence of judicial opinion prevalent in the sentencing regime on cultivation of illicit drugs among trial judges which is yet unresolved by the Court of Appeal or the Supreme Court.

[28] Some High Court judges and Magistrates apply sentencing guidelines in Sulua v State (supra) in respect of cultivation as well while some other High Court judges have suggested different sentencing regimes on the premise that there is no guideline judgment especially for cultivation of marijuana^[1] meaning that Sulua guidelines may not apply to cultivation and the sentences not following Sulua guidelines have been based by and large on the number of plants and scale and purpose of cultivation^[2]. State has earlier cited before this court the scale of operation measured by the number of plants (incorporating potential yield) and the role of the accused as a measure of his responsibility as the basis for possible guidelines in ‘cultivation’ cases deviating from Sulua guidelines^[3].

[29] These disparities and inconsistencies have been amply highlighted in several recent Rulings^[4] in the Court of Appeal and therefore, the same discussion need not be repeated here.

[30] I have been informed that the State will seek a guideline judgment in ‘cultivation’ cases in one of the appeals pending before the Court of Appeal in the near future. Therefore, the full court may decide the question of sentence on the appellants in the light of such guidelines. In doing so, the court may also consider separate grounds of appeal raised by the appellants.

[31] When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range (Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015).

Orders of the Court:

1. Enlargement of time to appeal against conviction is refused for both appellants.

2. Enlargement of time to appeal against sentence is allowed for both appellants.

Hon. Mr. Justice C. Prematilaka
RESIDENT JUSTICE OF APPEAL

^[1] See State v Bati [2018] FJCA 762; HAC 04 of 2018 (21 August 2018).
^[2] Tuidama v State [2016] FJHC 1027; HAA29.2016 (14 November 2016), State v Matakorovatu [2017] FJHC 742; HAC355.2016 (29 September 2017), Dibi v State [2018] FJHC 86; HAA96.2017 (19 February 2018) and State v Nabenu [2018] FJHC 539; HAA10.2018 (25 June 2018).

[3] Raivasi v State [2020] FJCA 176; AAU119.2017 (22 September 2020) and Bola v State [2020] FJCA 177; AAU132.2017 (22 September 2020).
[4] Matakorovatu v State [2020] FJCA 84; AAU174.2017 (17 June 2020), Kaitani v State [2020] FJCA 81; AAU026.2019 (17 June 2020), Seru v State [2020] FJCA 126; AAU115.2017 (6 August 2020), Kuboutawa v State AAU0047.2017 (27 August 2020) and Tukana v State [2020] FJCA 175; AAU117.2017 (22 September 2020) and Qaranivalu v State [2020] FJCA 186; AAU123.2017 (29 September 2020), AAU123.2017 (29 September 2020) and Naqeleca v State [2021] FJCA 7; AAU0093.2017 (8 January 2021) and State v Tuidama [2021] FJCA 73; AAU0003.2017 (16 March 2021) and Tawake v State [2022] FJCA 32; AAU063.2016 (3 March 2022).