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Yaba v The State [2005] FJCA 76; AAU0044J.2002 (25 November 2005)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0044.2002
(High Court Criminal Action No. HAC0010.1996L)

BETWEEN:

VIDALI YABA
Appellant

AND:

THE STATE
Respondent

Coram: Smellie, JA
Penlington, JA
Scott, JA

Date of Hearing: 15 November 2005

Counsel: Appellant in person
Mr. D. Goundar for the Respondent

Date of Judgment: 25 November 2005

JUDGMENT OF THE COURT

INTRODUCTION

[1] On 16 September 1997 following trial by the High Court at Lautoka (Sadal J) the Appellant was convicted of murder and robbery with violence. He was sentenced to life imprisonment for the murder and seven years imprisonment for the robbery.

[2] On 24 November 2003 a single Justice of Appeal granted the Appellant leave to appeal out of time against his conviction.

PRELIMINARY APPLICATION

[3] Upon receiving leave to appeal the Appellant applied to the Legal Aid Commission for legal representation. The application was refused. An appeal to the Board of the Legal Aid Commission was dismissed. He then applied to this Court for counsel to be assigned to him under the provisions of Section 30 of the Court of Appeal Act (Cap. 12). On 29 July 2005 a full bench of this Court dismissed the application. The Appellant has now submitted an application for leave to appeal to the Supreme Court against the dismissal of his Section 30 application.

[4] In our view a Section 30 determination is not a final judgment raising a question of significant public importance and accordingly no question arises for certification by the Court under the provisions of Section 122 (2)(a) of the Constitution. The application for leave to appeal against the Section 30 determination fails.

BACKGROUND

[5] At about 10pm on 27 July 1996 a 76 year old lady Nanju d/o Narain was at home alone when her concrete house which was surrounded by a fence and which had been fitted with burglar bars was broken into. Nanju was viciously assaulted and suffered horrific injuries from which, a few days later, she died. The motive for the home invasion was theft.

[6] On 31 July 1996, acting on intelligence received, the Appellant together with three others was taken to Tavua Police Station. There he was interviewed and, according to the Prosecution, made a full confession. He was then charged and again admitted the offence. This was prior to the death of Nanju and therefore he was only charged with robbery with violence contrary to Section 293 of the Penal Code (Cap. 17). It is accepted that after Nanju’s death the Appellant was charged with murder however it does not appear that any further interview was conducted, nor that a copy of the second charge statement was tendered at the trial. Nothing however turns on this point.

[7] At their trial, the Appellant and his three co-accused all objected to the admission of the records of their interviews. This Appellant’s counsel told the High Court that he objected to the admission of his client’s interview on the ground that he had been repeatedly assaulted by the police with a stone and that the method of questioning him was oppressive and unfair.

[8] A trial within a trial to determine the admissibility of the interviews was held over 17 days. Seventeen prosecution witnesses were called. The Appellant and his co-accused all gave evidence. At the conclusion of the trial within the trial the judge excluded the interviews of the two minor accused but admitted those of the Appellant and the fourth accused, his brother.

[9] The Appellant now advances two general grounds of appeal. The first is that the trial judge erred in admitting the records of his interview and charge statement and the second is that the trial judge erred by not directing the assessors on the issue of manslaughter.

GROUND 1 – ADMISSIBILITY OF CONFESSION STATEMENTS

[10] In addition to the matters addressed by counsel at his trial the Appellant has also raised a further objection to the admissibility of the confession statements. In his grounds of appeal filed on 17 September 2003 he complained that the trial judge had “failed to consider there were serious breaches of my constitutional right under the 1977 Constitution.”

[11] We take the Appellant to be referring to the 1997 Constitution and in particular to Section 27 which deals with the rights of arrested or detained persons. In our view the alleged breaches of these precisely defined constitutional rights, which only became part of the law of Fiji on 27 July 1998, cannot avail the Appellant whose arrest, trial and conviction all took place before that date. In our opinion the only question which is involved in this ground of appeal is whether it has been shown that the trial judge erred in his finding that the Appellant’s confessions were fairly obtained and voluntarily made (see R v. Horsfall [1981] 1 NZLR 116).

[12] The judge first considered the Appellant’s claim that he had only answered the questions put to him by the police because he had been assaulted by them with a stone over a period of “two hours”. The judge noted that when medically examined on the day after the interview by a doctor at the Ba Medical Centre no sign of injury could be found. He also noted that no complaint of assault had been made by the Appellant when he was brought before a magistrate. The judge accepted the evidence of the police that the Appellant had not been assaulted, and held that the confession statements had been given voluntarily.

[13] The judge next considered whether the manner in which the interview was conducted was oppressive and unfair. He rejected the Appellant’s claim that the police used unreasonable or questionable tactics in taking him to Tavua Police Station. He rejected the suggestion that the police had supplied the answers to their own questions noting that the details in the answers supplied made it highly unlikely that they would have been supplied by anyone other than the Appellant himself. Once again the judge accepted the evidence of the prosecution witnesses and rejected that of the Appellant. He concluded that he was “not able to accept that the police conducted themselves improperly in carrying out their duties.”

[14] The only submission made to us by the Appellant on this ground of appeal was that the confessions should have been excluded because he was forced into making them by the police who had assaulted him with a stone. In fact, the Appellant told us, he knew nothing about the case at all and had nothing at all to do with it.

[15] In Jai Ram v. The State (AAU0017.2004) this Court observed:

“As usual the voir dire turned entirely on questions of credibility which were for the judge to assess. He made appropriate findings of fact, in essence accepting the evidence of the prosecution witnesses and rejecting the evidence of the appellants. The conclusions he reached were open on the evidence. As the Court said in Ajendra Kumar Singh v. The Queen Cr. App. 46/79 30 June 1980, an appellate court should not disturb a judge’s finding [of fact] unless satisfied that a completely wrong assessment of the evidence has been made or the correct principles have not been applied.”

[16] In Skokandich v. Police [1994] 3 NZLR 247 the High Court of New Zealand explained that where an Appellant seeks to reverse a conclusion reached on the basis of credibility it must be demonstrated by the Appellant that there were objective facts which established beyond doubt that the trial judge’s impression of the witnesses was clearly wrong (see Spencer v. Relph [1969] NZLR 713, 725). A similar approach has been taken in Australia. In Devries v. Australian National Railways Commission (1993) 177 CLR 472 the High Court said that if the finding of the court below depended to any substantial degree on the credibility of a witness or witnesses the finding must stand unless it could be shown that the trial judge failed to use or had palpably misused the advantage of seeing and hearing the witnesses or had acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.

[17] In our view there is nothing to suggest that the trial judge either applied the wrong principles or erred in his assessment of the evidence before him in the trial within a trial. The first ground of appeal fails.

GROUND 2 – DIRECTIONS RELATING TO MANSLAUGHTER

[18] The second ground of appeal was not argued by the Appellant, who admitted that it had been suggested to him but that he did not know what it meant. For completeness however we briefly address it.

[19] Where on the evidence a question of provocation or any other ground arises which may reduce murder to manslaughter, appropriate directions must be given by the judge to the assessors (R v. Mancini [1942] AC 1). This is so whether or not the question is raised by the defence. Where, however, it can clearly be seen that no such question can arise it is the duty of the judge not to leave the issue to the assessors (R v. Thorpe (1925) Cr. App. 12 189; R v. Malcolm [1950] NZGazLawRp 146; [1951] NZLR 470).

[20] In the present case the Appellant’s defence was that he had nothing to do with the commissioning of the offence at all, that he had not gone to Nanju’s house, that he had not broken into it and that he had not assaulted her. Given this defence and the nature of the injuries inflicted upon Nanju we are satisfied that there was no evidential basis requiring directions on the question of a possible manslaughter verdict to be given. The second ground of appeal fails.

RESULT:

Appeal dismissed.

Smellie, JA
Penlington, JA
Scott, JA

Solicitors
Office of the Director of Public Prosecutions, Suva