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Serutalatala v State [2015] FJHC 1022; HAA004.2013S (21 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 004 OF 2013S

BETWEEN

LOTE SERUTALATALA
APPELLANT

AND

THE STATE
RESPONDENT

Counsels : Appellant in Person
Mr. T. Qalinauci for State
Hearing : 25 July, 2013
Judgment : 21 December, 2015

JUDGMENT

1. On 22 March 2012, the appellant (accused) waived his right to counsel. The following charge was read and explained to him in the Suva Magistrate Court:
   

FIRST COUNT
Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a) of the Penal Code Act 17.

Particulars of Offence

LOTE SERUTALATALA with OTHERS on the 26th day of September 2008 at Wailekutu, Lami, in the Central Division being armed with spear gun and cane knife robbed PETER YEE KUTE of 1 spear gun valued $100.00, I cane knife $5.00, 2 mobile phones $200.00, cash $60.00, assorted groceries $20.00 all to the total value of $385.00 and immediately before the time of such robbery threatened to use personal violence to the said PETER YEE KUTE.

SECOND COUNT
Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a) of the Penal Code Act 17.

Particulars of Offence

LOTE SERUTALATALA with OTHERS, on the 26th day of September 2008 at Wailekutu Lami, in the Central Division, being armed with spear gun and cane knife robbed SEREANA RANADI of 1 gold chain valued $112.00 and immediately before the time of such robbery threatened to use personal violence to the said SEREANA RANADI.

THIRD COUNT
Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 292 of the Penal Code Act 17.

Particulars of Offence

LOTE SERUTALATALA with OTHERS, on the 26th day of September 2008, at Wailekutu Lami, in the Central Division unlawfully and without colour of right but not as to be guilty of stealing used a private car registration number FJ 015 the property of PETER YEE KUTE.

2. He pleaded not guilty to the charges. During the police investigation, the appellant allegedly confessed to the crime when caution interviewed by police on 8 October 2008, at Nabua Police Station. In a voir dire, he challenged the admissibility of the above alleged confession on 22 March and 2 June 2012. On 23 August 2012, the Magistrate Court ruled the alleged confession as admissible evidence in the trial proper.
   
3. The trial proper started on 17 October 2012. It continued on 18, 22 and 25 October 2012. The prosecution called 4 witnesses – a civilian and 3 police officers. The appellant gave sworn evidence in his defence. On 12 November 2012, the Magistrate Court delivered its judgment, finding the appellant guilty as charged on all three counts. It then convicted the appellant on all three counts.
   
4. After hearing the accused's plea in mitigation, and the parties' sentence submission, the court sentenced the appellant to 9 years imprisonment on count no. 1, and another 9 years imprisonment for count no. 2, and 6 months imprisonment for count no. 3. All the above sentences were made concurrent to each other, thus making a final sentence of 9 years imprisonment. He was to serve a non-parole period of 5 years imprisonment. The sentence was dated 6 December 2012.
   
5. The appellant was not happy with the above conviction. He filed the following grounds of appeal on 10 December 2012 and 10 May 2013:
   

"...1. The Learned Magistrate erred in law by allowing SGT Jope Ravunibola (PW2) as a credible and main witness to convict me.

2. In paragraph 16 of the judgment, the Magistrate quotes that (PW2) testified that he recognised the accused as "we have arrested him several times" (prejudicial). However, in paragraphs 26 and in particular 27 of the judgment when (PW2) admitted that he has not arrested the accused before but only come to know the accused when he was doing the profiling on 2nd of September. I therefore submit Sir that (PW2) mislead the court by giving two different accounts of his past encounters with the accused which should seriously question his credibility.

3. In paragraph 40 of judgment, the Magistrate concluded that (PW2) performed an act of recognition. After 24 days (2 Sep – 26 Sep) and dealing with criminals daily, it is highly unlikely for (PW2) to recollect instantly as he so claims given that it was around 8.30pm in the night, visibility was very poor and he only had 3 – 5 seconds. In Rex v. Bentley (paragraphs 36 of judgment) states that "in a recognition case, the risk is not that the witness will pick out the wrong person on parade but that at the time of the offences, he mistakenly thinks he recognizes the offender".

4. Identification by (PW2) lacks the credibility that a criminal court would anticipate from a prosecution witness.

5. The Magistrate erred in law and in fact when he proceeded to allow "Exhibit No. 5" (paragraph 44 of judgment) as evidence of (PW2) to convict me they have no relevance to the facts of the robbery at Wailekutu for which I charge for.

6. The Magistrate erred in convicting me at paragraph 46 of judgment when "there is no direct evidence to establish my presence at the crime scene" but relied heavily on a string of irrelevant circumstantial evidence.

7. At paragraph 48 of judgment, the Magistrate erred in "presuming rather than proving beyond reasonable doubt" the three charges lay against me.

8. That the Learned Magistrate erred in law when he failed to adequately direct himself during the trial within the trial on the burden and standard of proof in order to rule that the confessional statement was voluntary.

9. That the Learned Magistrate erred in law and in fact in accepting confessional statement as the prosecution fail to prove beyond reasonable doubt that it was voluntary.

10. That the Learned Magistrate erred in law and in fact in failing to carefully assess the evidence of force, threat, inducement and oppression during the trial within trial.

11. That the Learned Magistrate erred in law and in fact when he fails to direct himself during the trial proper on the burden and standard of proof required in order to convict.

12. That the Learned Magistrate erred in law and in fact in failing to caution himself on the Turnbull Warning concerning the evidence of identification..."

6. Because the appellant was not legally represented, he had drafted his grounds of appeal in a way that was not easily understood. Most of them are repetitive, and were somewhat general. So, I will sub-divide them into appeals concerning the voir dire, and the trial proper, and consider some of the grounds together, to avoid repetitions.
   

(A) Voir Dire Trial Appeal
(i) Ground No. 8:

7. On this ground, we will refer to the Learned Magistrate's voir dire ruling, dated 23 August 2012. The ruling contained 7 pages. I have carefully read and considered the ruling. On the appellant's complaint on this ground, in paragraphs 16, 17, 18 and 22, the Learned Magistrate correctly directed himself on the burden and standard of proof in a voir dire hearing. He also referred to the relevant authorities. In my view, the appellant's appeal on this ground is misconceived, and it is dismissed accordingly.
   

(ii) Ground No. 10:

8. On this ground, the Learned Magistrate carefully summarized the two prosecution's witnesses' evidence in paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 of his ruling. Then he summarized the accused's sworn evidence in paragraphs 12, 13 and 14. Then he referred to the authorities in paragraphs 15, 16, 17, 18 and 19. In paragraphs 20 to 26, the Learned Magistrate carefully assessed the evidence, and ruled the accused's police caution interview statements as admissible evidence and gave his reasons accordingly. In my view, this ground of appeal is misconceived and is dismissed accordingly.
   

(B) Trial Proper Appeal
(iii) Grounds No. 1, 2, 3, 4 and 5:

9. The appellant's complaints against the evidence of Sgt. Joape Ravunibola (PW2) were summarized in appeal grounds No. 1, 2, 3, 4 and 5. Before the complaints are answered, it must be recognized from the beginning that in a Magistrate Court trial, the Learned presiding Magistrate is the final judge of fact and law. In a criminal trial, the burden is on the prosecution to prove the accused's guilt beyond a reasonable doubt, and that burden stays with them from the start to the end of the trial. There is no burden on the accused to prove his innocence, or prove anything at all.
   
10. The Learned Magistrate wrote an 18 pages judgment outlining his reasons on why he found the appellant guilty as charged on the three counts before the court. As far as Sgt. Joape Ravunibola's (PW2) evidence was concerned, he summarized the same in paragraphs 15, 16, 17, 26, 27 and 28. Then from paragraphs 32 to 44, the Learned Magistrate analysed Sgt. Joape Ravunibola's identification evidence of the accused, in the light of certain judicial precedents and the evidence presented at the trial. At paragraph 44, as judge of fact and law, the Learned Magistrate accepted Sgt. Joape Ravunibola's identification evidence. He had provided his reasons in detail in the paragraphs of his judgment mentioned above. In my view, the complaints by the appellant, as itemized in appeal grounds no. 1, 2, 3, 4 and 5 were misconceived, and I accordingly dismiss them.
    

Ground No. 6:

11. In ground No. 6 of the appeal, the appellant criticized the Learned Magistrate for convicting him on "irrelevant circumstantial evidence". In fact, in this case, the prosecution partly relied on circumstantial evidence to convict the accused. That simply meant that the prosecution is relying upon the evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime.
    
12. For example, in this case the violent robbery on Peter Yee Kute and Sereana Ranadi on 26 September 2008 was not disputed by the accused. Peter Yee Kute's statement on the robbery was tendered by consent of the parties as Prosecution Exhibit No. 3. Ms. Sereana Ranadi (PW1) gave sworn evidence on the violent robbery from pages 28 to 29 of the court record. PW1 said, after the robbery, she saw Peter Yee Kute's blue Toyota Camry Registration No. FJ 015, been driven by the 4 men robbers towards Suva, from Wailekutu Lami, at about 2 am on 26 September 2008. Sgt. Joape Ravunibola (PW2) said, on 26 September 2008, at about 8.30 pm, he heard on radio telephone at Nabua Police Station that a Blue Toyota Camry registration No. EM 296 fled from Tamavua Superfresh Service Station, without paying its fuel. A while later, while travelling in a vehicle approaching the Bailey bridge on Nokonoko Road, Sgt. Joape identified the accused in the Blue Toyota Camry Registration No. EM 296. The Learned Magistrate had accepted this identification evidence (see paragraph 32 to 44 of the court judgment).
    
13. Former police officer Mr. Seniloli Nawaqadau (PW3) gave evidence. He was the police investigation officer and caution interview officer. He said, on 26 September 2008, he visited the crime scene and talked to the complainant, Peter Yee Kute. Mr. Kute told him he was robbed, and his properties stolen. Mr. Kute said the robbers used his Toyota Camry Registration No. FJ 015 as their getaway vehicle. On 29 September 2008, PW3 said, he received information that Mr. Kute's car FJ 015 was abandoned at Nausori Town. Note in his sworn evidence, the accused said his village was at Raralevu Village near Nausori Town. PW3 said he went to Nausori to see the car. It was parked at the Nausori Police Station. The car was fitted with Registration No. EA 716. He tendered a picture of the car as Prosecution Exhibit No. 1. He checked the licence sticker on the car, and it revealed the No. FJ 015. He checked the boot of the car, and in the same were three Registration plates, EM 296, DU 187 and FJ 015.
    
14. PW3 also caution interviewed the accused at Lami Police Station on 8 October 2008. PW3 asked the accused a total of 50 questions and he gave 50 answers. PW3 said the accused was given his right to counsel, was formally cautioned, and given the standard rest breaks. According to PW3, in questions and answers 20 to 38, the accused admitted he was part of the group that violently robbed Peter Yee Kute and Sereana Ranadi (PW1) on 26 September 2008. When combining the circumstantial evidence mentioned in paragraphs 12, 13 and 14 hereof, it does lead to the sure conclusion that it was the accused who committed the offence. The evidence are reliable and they do prove guilt. The evidence do not reveal any circumstances that may weaken the prosecution's case. The Learned Magistrate accepted the circumstantial evidence as a ground for convicting the accused (see paragraphs 51 of his judgment).
    
15. Given what is said above, I find appeal ground No. 6 misconceived and I dismiss it accordingly.
    

(v) Ground No. 7, 9 and 11:

16. In appeal ground no. 7, the Learned Magistrate appeared to be referring to the doctrine of recent possession of stolen property as evidence of guilty knowledge of a crime. The Learned Magistrate had accepted Sgt. Joape Ravunibola's identification evidence of the accused been seated in Peter Yee Kute's blue Toyota Camry Registration FJ 015 on 26 September 2008 sometimes after 8.30 pm. The car was stolen during the robbery at Peter Yee Kute's residence at about 2 am on 26 September 2008. Approximately 19 hours later, the accused was found in the stolen car. The accused offered no explanation of why he was in the car at the time. The Learned Magistrate, as judge of fact and law, was entitled to make inferences of fact, as a result of the above, as he expressed in paragraph 48 of the judgment.
    
17. As far as appeal ground no. 9 was concerned, the Learned Magistrate, as judge of fact and law, was entitled to accept the accused's alleged confession in his police caution interview statement, tendered as Prosecution Exhibit No. 2. The Learned Magistrate appeared to accept that the accused made his caution interview statements voluntarily (see Questions and Answers 20 to 38 of Prosecution Exhibit No. 2), and they were the truth. As such, he relied on it as a ground to convict the accused, as he said in paragraphs 49, 50 and 51 of his judgment. On this ground alone, he was entitled to find the accused guilty as charged on the three counts.
    
18. As for appeal ground no. 11, the Learned Magistrate correctly directed himself on the burden and standard of proof in paragraphs 6, 8 and 9 of his judgment. Because of the above, appeal grounds no. 7, 9 and 11 were misconceived, and I dismiss them accordingly.
    

(vi) Ground No. 12:

19. On this ground, the Learned Magistrate referred to the R v Turnbull [1977] QB 224 guidelines in paragraphs 32, 33, 34 and 35 of his judgment. From paragraphs 36 to 39, the Learned Magistrate referred to other authorities on identification evidence. Looking at the above paragraphs in their totality, I have come to the conclusion that the Learned Magistrate did not err in cautioning himself on the Turnbull warning. This appeal ground was misconceived, and I dismiss it accordingly.
    

(C) Conclusion

20. Given the above, the Learned Magistrate's voir dire ruling dated 23 August 2012 and his judgment dated 15 November 2012 are upheld. The appellant's appeal against his convictions for the charges mentioned in paragraph 1 hereof in Suva Magistrate Court Criminal Case No. 1817 of 2008 is hereby dismissed. The sentence issued by the Learned Magistrate on 6 December 2012 remains.
    

Salesi Temo
JUDGE

Solicitor for Appellant : Appellant In Person
Solicitor for Respondent : Office of the Director of Public Prosecution, Suva.