2. &nnsp;&&nsp;;&nspp;&nssp;&nsp;   an>Tpat there wss insufficifficient evidence to justify a conviction;
3. &nbssp;&nnbsp;;&bsp; &bsp; &nnbp;& &nThan>Than>That he t he was unrepresented and the trialconduunfairly;
4. &nbssp;&nnbsp; &nbbsp; &nbp; &nbp; &nsp; p; Tpan>That the sentence pnce passed failed to take into derathe 7 s impment d served for the offence prior to the order for re-r re-trialtrial.
The facts of the case as disclosed by the court record are that Mr Nizal Buksh, the owner of a grocery shop in Nausori, closed the
shop at 8.30pm taking with him, the shop’s takings. When he arrived at his home in his car, he saw four persons standing at his gate.
He tried to escape but they attacked him. They broke the window glass in the car and threw him outside the vehicle. They grabbed
the money, which was in plastic bags inside a carton box beside the driver’s seat and ran away towards Tailevu. The box contained
$24,000. However the robbers took $15,945.34 leaving behind coins making up the balance. The robbers carried cane knives and steel
pipes.
Mr Buksh later recovered $6,000 which had been abandoned about 100 metres arom the scene.
Police Constable Rakesh Kumar, who investigated the crime, lfound on the track to Korovou a plastic money bag contained a further
$133.00 identified ased as being Mr Buksh’s.
On 22nd January 1997, the Appellant was arrested and brought to Nausori Police Station for quning. In that interview the appellant
admitted that the robe robbery was his idea, that he planned it with three others, and that he had held the steel rod while the other
three had a cane knife each. He said that after the robbery, they ran away along the river bank, that he threw the carton away 100
metres away from the house, that they ran up the hill and down towards their getaway car, and that he then returned to his village.
He said that they shared the money amongst them in the car, and that he spent it on alcohol, and gifts. He said some was stolen from
him.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> When he was charged, he made a further statement admitting his part in the robbery.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The offence was committed on 18th January 1997. The Appellant was tried on 27th March 1998, and convicted on 15th October 1998. He
was sentenced to three and a half years imprisonment. On appeal on 21st April 1999 the High Court ordered a re-trial, which commenced
on 5th May 1999. Prior to the second trial, the Appellant had been in custody from 15th October 1998 to 26th May 1999. On 26th May
1999, he was released on bail, it appears to allow him to instruct a lawyer. He remained on bail until he was sentenced to 3 ½ years
imprisonment on 20th January 2000.
Ground 1
There is no merit in the Appellant’s ground of appeal that he has continued to maintain his innocenc had a constitutional rightright
to maintain a plea of not guilty. The learned Magistrate correctly directed himself that the burden of proving the Appellant’s guilt
was on the prosecution. Furthermore, although the crux of the case against the Appellant was his interview under caution, the learned
Magistrate correctly addressed the issues of voluntariness, oppression and unfairness in relation to that interview. Once he accepted
the voluntariness of the interview, he was entitled to accept the truth of its contents, and to convict the Appellant upon them.
Ground 1 has no merit.
Ground 2
Furthermore with or without supporting circumstantial evidence, a conviction can be based on a confession voluntarily obtained. As
the learned Magistrate correctly stated, Sykes (1913) 8 Cr. App. R. 233, is the authority for this principle.
In this case the Magistrate accepted the contents of the confession because as he said, the facte consistent with the evidence of
Mr Buksh about the circumircumstances in which the robbery was committed.
He considered the Defence of alibi, raised in the evidence of Meli Voka and Josefata Naikidi. He notat their evidence appeared to
suggest that there was a gath gathering at the Appellant’s village on the day of the incident to discuss the funerals of two entirely
different people.
The learned Magistrate did not go further to say that Meli Voka, when asked by the prosecutor in cross-examination, did not know of
the date of the robbery. He only said that he remembered
that the Appellant was with him on a Saturdadiscuss the funeral of his uncle.
In the circumstances, it is not surprisint the learned Magistrate preferred the prosecution version. This ground is also dismissed.
Ground 3
&n/span>
The Appellant says that he had no counsel and that the trial was conducted in an unfair manner.
It is of course evident from the record that the Appellant was granted bail on 24th June 1999 in order to allow him to seek representation.
The fact that he was unable to obtain counsel in the four months before the matter was tried, is clearly not the fault of the court.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Furthermore, the court record shows me that the trial was conducted fairly and thatAppellant had the opportunity to cross-examine,
give evidenvidence, call witnesses and make a closing address.
I see no merit in this ground and I dismiss it accordingly.
Ground 4
ass=MsoNormal styl styl style="margin-top: 1; margin-bottom: 1"> The Appellant served 27 weeks (almost 4 monthshis 3 ½ years imprisonment before the order for re-trial was made. A further 5 weeks
was spas spent remanded in custody pending re-trial.
The record shows that the learned Magistrate failed to consider the teready served, when he imposed a fresh term of 3 ½ years imprisonment.
Although I accept that the sentence imposed was within the tariff for Robbery cases (R -v- Moananui (1983) NZLR 531, Crim. App. No. 19 of 1993) I consider that a reduction for the term already served would have been proper.
As such the sentence of 3 ½ years imprisonment is reduced by ths to 3 years and two months to run from the date of conviction. The
6 months imprisonmentnment for breach of bail remains.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In summary the appeal against conviction is dismissed. The appeal against sentence lowed to the extent of a reduction by 4 months.
<
Nazhat Shameem
JUDGE
At Suva
23rd October 2000
HAA0080j.00s
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