IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 030 of 2008

Between:

JONE SOVUI
Appellant

And:

THE STATE
Respondent

Hearing: 28th May 2008
Judgment: 13th June 2008

Counsel: Appellant in person
Ms S. Puamau for State

JUDGMENT

The Appellant appeals against conviction and sentence. He was sentenced to 7 years imprisonment by the Nasinu Magistrates’ Court on 2nd November 2007 for one count of robbery with violence and one count of unlawful use of motor vehicle.

At the outset, I disclosed to prosecution and defence that I was the trial judge in State v. Lole Vulaca and Others HAC120 of 2007 a case involving the murder of Tevita Malasebe. Malasebe was alleged to have been involved in the same robbery as this Appellant. State counsel said then (and I agreed) that this did not raise a reasonable apprehension of bias against the prosecution.

I proceeded to hear the appeal. The Appellant was charged on the 5th of June 2007, with robbing one Gade Temo of $12,979.96 in cash and using personal violence on him. He was also charged with using a private motor vehicle EK222 contrary to section 292 of the Penal Code. The case was called in court on the 5th of June. Bail was refused, and on the 3rd of July 2007, the Appellant elected Magistrates’ Court trial. He was by that date, represented by the Legal Aid Commission. However on the next date, the 17th of July 2007, he was not represented. He asked for bail, saying that he wanted to look for a lawyer. Bail continued to be refused. When the trial started, on the 18th of September 2007, the Appellant was unrepresented and in custody.

The trial commenced with a trial within a trial. The evidence from police witnesses was that the Appellant was interviewed under caution at the Valelevu Police Station on the 3rd of June 2007. All the police officers involved said that the interview had been given voluntarily and that there had been no assault on the Appellant. The Appellant alleged threats, torture and assault. The interviewing officer agreed that the Appellant had injuries on him but said that he already had those injuries when he commenced the interview.

The medical report of the Appellant was tendered. It is dated the 5th of June 2007. The history related to the doctor was that the "patient was assaulted by policemen for 3 days. Punched on the face, chest and back, beaten with a police baton on the chest, back and legs, hit with a wooden stick on the legs." The doctor found facial swelling bilaterally, bruise around the left eye, tenderness of mandibles, bruises on the chest wall mainly on sides of chest wall, bruises on back (upper) and wound on right leg. She found that the history and the injuries were consistent with each other.

Under cross-examination, the interviewing officer said he had no idea how the Appellant came by the injuries found by the doctor.

The second witness PC Usa Vakaloloma, the interviewing officer was asked in cross-examination; "Q – Did you cause the above injuries to the accused during the interview? A – Yes." He later said however that he didn’t punch the Appellant during the interview, nor did he threaten, assault or promise anything to him." In re-examination he said he saw no injuries on the Appellant during the interview and never assaulted him.

The Appellant gave sworn evidence in the trial within a trial, saying that he had been assaulted by Lole Vulaca and one Maika, as well as PW1 DC Setoki Taveta. He said however that PC Usa Vakaloloma never assaulted, threatened or induced him. He said that when he gave his interview to PC Usa, those who had assaulted him were not in the room.

The learned Magistrate then ruled on the admissibility of the confession. He found that because PW2 PC Usa had not threatened or assaulted the Appellant (which was agreed to by the Appellant) the interview was voluntary and admissible.

The trial proper then commenced. The confession was tendered. The Appellant did not cross-examine the police witnesses. In the confession, the Appellant admitted stealing EK222 and changing its number plates to EV183. He admitted being the getaway driver on the day of the robbery. He said that the car was extensively damaged during the robbery and that he later abandoned it in Kalabu. He received $2400 as his share of the proceeds of the robbery.

The other evidence led by the prosecution was that of Mereseini Vosanibola, the owner of EK222 and that of Mohammed Aiyub, clerk at Golden Manufacturers. The latter gave evidence that on the 31st of May 2007, he went to the bank to withdraw money for wages. He withdrew $12,979.96, and proceeded to the Golden Manufacturers Offices at the Kalabu Sub-division. There, the security officer Temo Gade was carrying the money towards the office when a masked man attacked him, grabbed the bag with the money and ran to the getaway vehicle EV183. On the way to the van, the masked man was tackled by Viliame Waqa, an employee. Two other masked men then came out of the vehicle and threw stones and bottles at Waqa. He let the masked man go and the vehicle drove off. No one identified any of the robbers as they were all masked.

PW10, Sirilo Tupou gave evidence that on the 31st of May 2007, the Appellant (his uncle) came home in a taxi with two other men. He gave him a plastic bag to keep in the wardrobe. It contained 5 bundles of $20 notes. There were also some coins. He later returned, took some money from the bag and went to town. He returned with a pair of shoes, socks and a mobile phone. Two days later he asked PW10 for the key to the wardrobe. Later when PW10 checked in the wardrobe the money had gone. The Appellant was arrested shortly afterwards.

The trial was adjourned to allow the Appellant to summon a witness. However, eventually on the 15th of October 2007, the Appellant gave sworn evidence and did not call his witness. In his evidence he said he knew nothing about the case and that the confession had been extracted from him by assault. Under cross-examination, he agreed that the contents of the interview were true and that PC Usa did not assault him during the interview.

Judgment was delivered on 2nd November 2007. The learned Magistrate said that it was not in dispute that there was a robbery at Golden Manufacturers and that the vehicle EK222 was unlawfully used by the robbers after a change of the number plate. Nor was it in dispute that the robbers were masked, and that the getaway vehicle sustained serious damage when it came into contact with a truck. What was in dispute was the Appellant’s involvement in the robbery.

The only evidence against the Appellant specifically, was in his caution statement, although there was supportive evidence of the Appellant being in possession of a large amount of cash between 9am and 10am on the day of the robbery. The robbery occurred before 10am. The learned Magistrate then said:

"I accept that the accused voluntarily confessed to the two charges against him, when he was caution interviewed by PW2. I accept the prosecution witnesses’ evidence. They were credible. I reject the accused’s denial. He was not a credible witness. I therefore find, as a matter of fact, that the accused stole PW3’s car on 30.5.07, and PW4’s number plates, and used the same, with others, to rob PW6 of $12,979.96 on 31.05.07 at Nasinu in the Central Division. When robbing PW6, the accused and his group used personal violence on PW6."

He then convicted the Appellant on both counts. The Appellant had a large number of previous convictions, 15 of which were for robbery with violence. He is 30 years old and unemployed. He came out of prison in January 2006. He was then sentenced (on a starting point of 5 years imprisonment) to a 7 year term for the robbery conviction, and 5 months on the unlawful use conviction, to be served concurrently with each other.

The appeal

The grounds of appeal can be summarized thus:

1.	The only direct evidence against the Appellant was contained in his confession, which had been unlawfully obtained;

2.	The learned Magistrate failed to properly consider the medical report which confirmed assault in police custody;

3.	The learned Magistrate erred in admitting the confession;

4.	The Appellant was prejudiced because of lack of representation;

5.	The learned Magistrate erred in relying on the evidence of Sirilo Tupou as being supportive of the prosecution case

6.	The sentence was wrong in law.

At the hearing of the appeal the Appellant relied on his written submissions, which amplified his grounds of appeal. He said that the tendered medical report proved that he had received injuries while in police custody and that these injuries rendered the confession inadmissible. He said that if he had been represented by counsel, he would have been able to better present his case in the trial within a trial and that the learned Magistrate was biased against him because he had refused to grant him bail.

This last submission I reject without hesitation. A judicial officer is not biased against an accused person when he or she refuses bail. The legal test for bail is entirely different from the legal test for guilt or innocence. Indeed, magistrates and judges are very careful not to prejudge the merits of the case when considering bail. The strength or otherwise of the prosecution case is only one of many factors to be considered when a bail application is made. Further in this case, I consider that the learned Magistrate was scrupulously fair to the Appellant during the trial. The procedures were carefully explained to him, and it was not the Magistrate’s fault that the Appellant raised new allegations in his sworn evidence that he had not raised in cross-examination. The role of the presiding judge or magistrate in a case where the accused is unrepresented is a most difficult one. He or she must assist the accused in his or her defence without entering the arena. He or she must ensure the accused is not prejudiced without causing prejudice to the prosecution. The only real remedy for this judicial dilemma is to encourage the State and other interested bodies, to support the Legal Aid Commission, and to work towards a goal that all accused persons charged with serious offences will be represented by competent counsel.

For the purposes of this appeal, I find no evidence of judicial bias against the Appellant.

The Appellant’s main complaint is the admission of his caution interview. The State does not dispute that the Appellant was assaulted and had received injuries. However counsel submits that the interviewing officer was cross-examined about these injuries and his answers were clearly accepted by the court. The State’s position is that the Appellant was injured whilst in police custody but was not assaulted during the interview, and that there was therefore no relationship between the assault and the interview. Furthermore, the Appellant in cross-examination seems to have accepted the truth of the confession.

I cannot agree with this proposition. Certainly, where there is a significant time lapse between the assault and the interview, or a change of venue, a court may be satisfied beyond reasonable doubt of voluntariness. However, the Appellant was arrested on the 2nd of June 2007. His interview commenced on the 3rd of June. The medical report is dated the 5th of June. The Appellant told the doctor that he had been punched, beaten, and hit with a stick and baton for 3 days by policemen. The doctor, after examination, wrote "History and examination consistent with assault." She was never called to give evidence. However she appears to have accepted that the injuries were caused over a 3 day interval (on the 2nd, 3rd and 4th of June). The interview commenced on the 3rd. Factually therefore, there was no interval between the assaults and the interview. The fact that the learned Magistrate accepted that there was no assault during the interview does not assist the prosecution. A scenario where the suspect is beaten just before an interview, or during the breaks in the interview, is an oppressive scenario. The facts undermine the apparent free will of the suspect. If those beating the Appellant were police officers (as he claims) and those interviewing him immediately after the assault were police officers, the confession obtained is rendered inadmissible. The confession has been obtained in circumstances of oppression, and no matter how honest and professional the interviewing process is, it cannot be assessed in isolation. How the Appellant is treated in the entire time of his custody affects the voluntariness of the confession.

In this case the learned Magistrate did err in failing to consider the effect of the alleged assault on the voluntariness of the confession. Further, because the Appellant only gave the names of the officers who allegedly assaulted him, in his sworn evidence in the trial within a trial, the prosecution should have been given leave to call those officers to give evidence. Lastly, given the damning nature of the medical report, there should have been evidence from the doctor and from police witnesses about the circumstances of his custody. In the absence of this evidence, I cannot accept that the question of voluntariness was properly canvassed or considered.

For these reasons, the Appellant’s main ground of appeal must succeed.

The conviction rested mainly on the confession, and it must therefore also be quashed.

The appeal against conviction on both counts succeeds. The offence of robbery with violence is serious, and the value of the money taken is high. I therefore order a retrial. However, if, after assessing the evidence, the Director of Public Prosecutions decides that he cannot tender the confession, it will of course be a matter for him to decide whether to proceed with the prosecution at all.

This appeal is allowed, and convictions and sentence are set aside. A retrial is ordered.

Nazhat Shameem
JUDGE

At Suva
13th June 2008