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Rokonabete v State [2012] FJCA 59; AAU0095.2008 (12 May 2012)

IN THE COURT OF APPEAL
FIJI ISLANDS
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: AAU 0095/08

BETWEEN:

1. SAKIUSA ROKONABETE
2. AKUILA DROMODOLE
3. ALIFERETI TOKONA
4. GUSTON FREDERICK KEAN
[Applicants]

AND:

STATE
[Respondent]

BEFORE : Mr. Justice P. K. Madigan
COUNSEL : Applicants all in Person
Ms P. Madanavosa for the State

Date of Hearing : 27 April 2012
Date of Ruling : 4 May 2012

RULING

1. Each of these applicants applies for leave to appeal their conviction for

robbery, and the first and fourth accused apply for leave to appeal their sentences for that robbery.

2. All applicants were convicted after trial for robbery on the 10th September, 2008 and were sentenced to varying terms of imprisonment on the 15th September, 2008.
   
3. All of the applicants submit that the trial Judge was in error to admit photocopies of their caution interviews and charge statements into the Court Record. They submit that no diligent search was made for the originals and that the State failed to call the relevant witnesses on the matter.
   
4. It is evident that by the nature of their submissions, the ground is one of mixed fact and law and that being so, an earlier ruling by Pathik, J.A (on 13 October 2009) that the fourth accused had an automatic right to argue the ground before the full Court, it being a point of law only, was erroneously decided.
   
5. The learned trial Judge in deciding if to admit the photocopies into evidence heard evidence as to the loss of the originals and diligent searches having been made and then in a written ruling applied the then pertaining principles of law on the issue. No prejudice was occasioned to any of these applicants. The matter having been properly dealt with by the Judge, and this ground of appeal has no chance of success.
   
6. The second, third and fourth applicants had applied for representation by the Legal Aid Commission. All were refused and then disclosures returned to them. In numerous mentions of the case since October 2007, all of the applicants (the then accused) were told of their rights to legal representation. The second applicant having been rejected on the first day of trial was advised that the court would use every endeavour to assist him in his defence, he being unrepresented. All of the applicants had previous convictions and could not be said to be unaware and unsophisticated in matters of defence. Their ground of appeal that they were prejudiced by lack of legal representation cannot be made out.
   
7. The ground that no ruling on the voir dire was ever made by the learned trial Judge is not borne out by the Court record. On the 14th August 2008 the Judge verbally ruled that all four caution interviews of the applicants were admissible with written reasons for the ruling handed down subsequently. Such a practice is quite in order and this ground of appeal has no chance of succeeding before the full court.
   
8. A ground of appeal relied on by the first applicant that the trial Judge was biased against him cannot be made out. The applicant has no grounds to make such an allegation and the ground has no chance of succeeding.
   
9. None of the grounds against conviction raised by the applicants have any merit whatsoever and there being no right of appeal to the Full Court, I dismiss each appeal against conviction pursuant to Section 35(2) of the Court of Appeal Act.
   

Sentence

10. The first and fourth applicants seek leave to appeal their sentences to the

full Court.

11. The first applicant was sentenced to a term of imprisonment of thirteen

years by the trial Judge after careful analysis of the relevant authorities and of the circumstances pertaining to this applicant. His appeal against sentence has little chance of success and is dismissed pursuant to Section 35(2) of the Court of Appeal Act.

12. The fourth applicant was sentenced to a term of 14 years' imprisonment,

nine years of which was made consecutive to a term of 11 years he was already serving for a robbery offence. The resultant sentence was therefore one of twenty years. The applicant submits that this sentence is harsh and excessive and grounds to that effect on the question of totality could well succeed before the full Court. I therefore give leave to the fourth applicant to appeal his sentence to the full Court.

13. A hearing date will be fixed for the appeal on the next call over date.
    

Paul K. Madigan
JUDGE

At Suva
4th May 2012