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Baleinabuli v State [2011] FJCA 20; AAU0079.2007 (10 March 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS

CRIMINAL APPEAL NO. AAU 0079 OF 2007
(High Court Criminal Case No. 106 of 2006)

BETWEEN:

JOSEFA NONU BALEINABULI
APPELLANT

AND:

THE STATE
RESPONDENT

CORAM: Hon. Justice William R. Marshall, Justice of Appeal
Hon. Justice Daniel Goundar, Justice of Appeal
Hon. Justice Paul Madigan, Justice of Appeal

COUNSEL: Appellant in Person
Mrs S. Hamza for the State

Date of Hearing: Tuesday, 1st March 2011

Date of Judgment: Thursday, 10th March 2011

JUDGMENT

William Marshall, JA
1. I agree with the judgment and reasons of Madigan JA.

Daniel Goundar, JA
2. I also agree with the judgment and reasons of Madigan JA.

Paul Madigan, JA
3. On the 17th of July 2007 in the High Court at Suva, this appellant along with two others was convicted of two counts of robbery with violence. He was sentenced on the 18th July to a term of imprisonment of five years for each offence, to be served concurrently.

4. The appellant now appeals his conviction having been granted leave by the single Judge on the 8th September, 2009 to appeal on the following grounds:

(a) That the learned Judge erred in law when she directed that each appellant assisted or aided and abets (sic) another to commit the offence without any evidence before her.

(b) That the learned Judge erred in law when she convicted the appellant for robbery with violence when there is no evidence to confirm it.

5. On the 21st September 2006, a group of men entered a dwelling house at Turner Place, Nasese. Some of the men had knives. One of the occupants, Ms Khatri was robbed of her jewellery worth more than $2000 at knife point. She suffered injuries to her neck and fingers, and was also punched. Another lady in the house, Ms Ben, a 76 year old was also robbed of her jewellery.

6. An interview that this appellant had conducted with the Police under caution was ruled to be inadmissible by the Court in a trial within a trial on the basis that the Judge accepted that there had been a certain amount of "pushing" by the arresting officers prior to the interview.

7. The State prosecuted the three accused on the basis of joint enterprise. This appellant was initially identified by Ms Khatri but she later resiled from the identification, and the learned Judge quite properly told the assessors to disregard that identification.

8. In her evidence, Ms Khatri said that one of the robbers was wearing a yellow T-shirt and carrying a blue school bag. She said that that robber was the second accused. [The appellant was the first accused at trial].

9. One hour after the robbery, this appellant was found by Police at the seawall at Queen Elizabeth Drive "two minutes walk", from the scene of the crime. He was wearing a yellow T-shirt and had a blue bag.

10. There was no evidence whatsoever produced by the State against this appellant except to suggest that the presence of this young man near to the scene of the robbery within one hour of the crime, wearing a yellow T-shirt and carrying a blue bag was indicative of his guilt.

11. Obviously this stance flies on the face of the prosecution evidence that it was another accused who was wearing a yellow T-shirt and carrying a blue bag. When this appellant was arrested, his blue bag was seized and shown to the victim who identified it as the bag she had seen. There was no evidence wherein she describes the bag or even suggests that it was distinctive for some reason. The arresting officer even misled the Court by saying that stolen property was in the blue bag when the Prosecution later conceded that this was in fact untrue.

12. The appellant was unrepresented and had a clear record. Clearly had he been represented, a most vigorous no case submission would have been launched on his behalf. Unfortunately the record shows no call on the accused to make a no case submission but merely states this as having been said by the Judge:

"sufficient evidence 2nd and 3rd accused. 1st accused – possession of blue bag and wearing yellow T-shirt ... close nexus in time between the robbery and the arrest. But direction on circumstantial evidence will be necessary."

The Judge then explained to this appellant his rights, and he elected to remain silent.

13. It is our view that this is one of the rare instances where there should have been found no case to answer in respect of this appellant, the first accused at trial. There was not one piece of evidence implicating him and what was said to be circumstantial evidence were allegations that were so tenuous, that the panel of assessors should not have been allowed to deliberate on them.

14. As was said in Haw Tua Tau v. Public Prosecutor, [1982] AC 136, per Lord Diplock's speech:

"if there is no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove any one or more of those essential elements, it is the judge's duty to direct an acquittal, for it is only upon evidence that juries are entitled to convict; but if there is some evidence, the Judge must let the case go on."

15. It was most unfortunate that the appellant was sitting on the sea wall at the time he was, wearing a yellow (he says orange) T-shirt and carrying a blue bag. In a skilful cross-examination of the victim, he had her agree that blue bags are not rare. Nor are yellow T-shirts. Without evidence that the T-shirt and bag seen by the victim were unique, this evidence falls away. In any event the victim quite clearly states that it was another accused who wore yellow and carried a blue bag.

16. Given that the case against the first accused (this appellant) was one only of "circumstantial evidence", then that situation called for special care in the Judge's directions to the assessors.

If in the Judge's view any one of those facts was indispensable in a chain of reasoning towards an inference of guilt, then the assessors should be told that that fact must be found proved beyond reasonable doubt before they can make the inference of guilt.

17. This was said in Shepherd v. R (1990) 170 CLR at 579 (Dawson J):

"It may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the Jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn."

18. In this case, it is an "indispensable fact" that the appellant was the man the victim saw wearing a yellow T-shirt and carrying a blue bag. If so found, then the panel could go on to find that because he was in the vicinity soon after the crime then he was obviously one of the robbers.

19. However such a finding is not open to the assessors for the very reason that the victim said that another accused was the man wearing the yellow T-shirt.

20. The conviction cannot stand. The "strands" said to make up the circumstantial case are so thin that they produce a gossamer filament, rather than a thick cable of cogent and convincing evidence.

William Marshall, JA

The Orders of the Court

21. The orders of the Court are:

(1) That the appeal of Josefa Nonu Baleinabuli against conviction be allowed.

(2) That the convictions be overturned and the sentence of five years imprisonment concurrent on each count be quashed.

Hon. Justice William R. Marshall
Justice of Appeal

Hon. Justice D. Goundar
Justice of Appeal

Hon. Justice P.K. Madigan
Justice of Appeal