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Nasove v State [2008] FJHC 3; HAA 24.2007 (18 January 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Appeal No : HAA 24 of 2007

BETWEEN:

EMOSI NASOVE
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in Person
Ms. V Lidise for the State

Date of Hearing: Friday 7th December, 2007
Date of Judgment: Friday 18th January, 2008

JUDGMENT

Background

[1] Following a trial in the Sigatoka Magistrates’ Court the appellant was convicted of robbery with violence and resisting arrest. He was sentenced to 5 years imprisonment for robbery with violence and 3 months imprisonment for resisting arrest. The sentences were made concurrent.

[2] When the appellant first appeared in the Magistrates’ Court, he was advised of his right to legal representation. After numerous adjournments, the trial proceeded on the 3rd of May 2006, with the accused being unrepresented.

[3] The prosecution led evidence that the appellant entered the complainant’s shop and assaulted him with a stick. He took off with the till which had cash and cheques. The complainant positively identified the appellant. He knew the complainant by face. Subsequently the appellant was arrested. He resisted arrest and assaulted a police officer. The till was recovered from him. He was interviewed under caution. The prosecution led evidence of oral and recorded confession of the appellant.

[4] In appellant’s own words, the grounds of appeal are:

(i) That the learned Magistrate erred in law and in fact in accepting the inconsistent statement of PW1. PW1 stated in his statement to police that he did not identify the robber on that particular day, 4th February 2005 as he was masked. But in court, he stated contrary.

(ii) That the learned Magistrate erred in law and in fact in not carefully and properly assessing the evidence of assault by police when obtaining my confession.

(iii) That the learned Magistrate erred in law and in fact in accepting my confession which was unlawfully obtained from me.

(iv) That the learned Magistrate erred in law and in fact in accepting the evidence of identification for the first time in court which is unsatisfactory and undesirable.

(v) That I was unrepresented in court during trial and was not properly assisted in presenting my defence and I was prejudiced therefore.

(vi) That the sentence is harsh and excessive.

(vii) That the sentence is wrong in principle.

Consideration of Grounds

[5] Since the appellant was unrepresented in this Court as well, I directed the State to verify the appellant’s assertion that the complainant’s police statement regarding the identification was inconsistent with his testimony in trial. Regrettably, the State was unsuccessful in locating the police file that contained the statement. I was told from the bar table that the police could not find the file.

[6] It is unfortunate that the police could not locate their own file. In future, the State is expected to come to Court with the police file to assist the Court, particularly, if the appellant is unrepresented.

[7] During the trial the complainant was adamant that he had positively identified the appellant. The circumstances surrounding the identification were that the appellant was known to the complainant, his face was uncovered and it was broad daylight. The appellant cross examined the complainant on the identification issue but never suggested to him that he had made a prior inconsistent statement to the police regarding the identification. The trial Magistrate appropriately gave himself a warning in accordance with the guideline laid down in R v Turnbull (1976) 3 All ER 549.

[8] There was evidence from a carrier driver who was hired by the appellant from the town at about 4. 30 pm on the day of the robbery. The appellant asked the driver to take him to the hills behind the town where he picked up a sack which had something in it and then went to his village. The driver knew the appellant. The appellant warned the driver not to inform the police. The appellant did not cross examine the driver.

[9] The appellant cross examined the interviewing police officers on the basis that they had assaulted him to confess. It was denied by the officers. The appellant suggested to the police officers that they did not allow him enough sleep before the interview. The trial Magistrate intervened to this suggestion on the ground of relevance. The appellant did not purse the issue any further.

[10] In my view the question was relevant to the issue of whether the confession of the appellant was obtained under oppressive circumstances and the trial Magistrate should not have stopped the appellant from further pursuing the issue.

[11] It was obvious from the appellant’s cross examination of the prosecution witnesses that he was disputing his confession. At no stage of the proceedings, the trial Magistrate ascertained from the appellant whether he desired to take objection to the admission in evidence of his confession.

[12] If the voluntariness of a confession is in dispute in a trial before the Magistrates’ Court, then the Magistrate is obliged in law to direct a trial within trial hearing and determine the issue prior to the commencement of the defence case (see, Rokonabete v The State, Criminal Appeal No. AAU 0048/05). When an accused is unrepresented, it is a duty of the trial Magistrate to explain to the accused the law and procedure about the admissibility of confessional statement (John Levu v State (1971) 17 FLR 224)

[13] In Rokonabete v The State (supra) the Court of Appeal held that any error in the manner in which the admissibility of the confession was considered by the trial court must give rise to a possibility of substantial injustice particularly if the court relied on the confession to convict the accused.

[13] In his judgment, the trial Magistrate relied on the confession to convict the appellant. He said:

"Not only that, the accused voluntarily admitted to police officers that he robbed the victim of cash and cash register."

[14] How the trial Magistrate arrived at the above conclusion without holding a trial within trial is hard to understand? He did not direct himself that the onus was on the prosecution to prove the voluntariness of the confession beyond a reasonable doubt. Nor did he make a finding that the confession was true before relying on it to convict.

[15] The trial within trial procedure to determine the voluntariness of a disputed confession is one of the important safeguards of a fair trial. The procedure gives the accused an opportunity to give sworn evidence on the voluntariness of the confession while maintaining his right to silence as far his guilt is concerned. The right is constitutional. By not holding a trial within trial to determine the voluntariness of the disputed confession, the appellant was denied his right to a fair trial.

[16] If the appellant was represented by counsel, the counsel would have ensured that the appellant enjoyed a fair trial, including the right to object to the admissibility of a disputed confession in accordance with the law. In the circumstances, I find that the appellant was prejudiced by lack of legal representation. The appeal against conviction succeeds on grounds (ii) (iii) and (v).

Result

[17] Appeal against conviction allowed. Conviction set aside and the case is remitted to the Magistrates’ Court for trial de novo before another Magistrate.

Daniel Goundar
JUDGE

At Lautoka
Friday 18th January, 2008

Solicitors
Office of the Director of Public Prosecutions, Lautoka for the State
Appellant in Person