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Delana v State [2015] FJCA 104; AAU103.2014 (13 August 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU103 OF 2014 Consolidated with AAU104 OF 2014
[High Court Criminal Case No. HAC158 of 2010]

BETWEEN:

1. FILIPE DELANA
2. SANAILA TABUAVULA
Appellants

AND:

THE STATE
Respondent

Coram : The Hon. Mr. Justice Daniel Goundar
Counsel : 1st Appellant in person
Mr. S. Sharma for the 2nd Appellant
Mr. L. J. Burney and Ms S. Tivao for the Respondent

Date of Hearing : 4 & 5 August 2015
Date of Ruling : 13 August 2015

RULING

[1] Both appellants seek leave to appeal against their convictions. The 1st appellant also seeks bail pending appeal. The appellants were convicted of aggravated robbery after trial in the High Court at Suva. The 1st appellant was sentenced to 8 years and 9 months imprisonment. The 2nd appellant was sentenced to 8 years and 2 months imprisonment.

[2] The 1st appellant elected to represent himself. He forwarded a timely Notice of Appeal but by the time the Notice was received by the registry, the appeal was out of time by about eight days. On 2 June 2015, the appellant filed twenty five pages of hand written submissions on the grounds of appeal. At the hearing of the application for leave, I asked the 1st appellant to summarize his complaints. The grounds in summary are:

(i) The Trial Judge failed to direct the assessors that the co-accused's caution statement was admissible only against the maker and not the 1st Appellant.

(ii) The Trial Judge gave inadequate directions on Turnbull guidelines on identification evidence.

(iii) The Trial Judge gave no directions on the first time dock identification.

(iv) The Trial Judge gave no directions on provisions inconsistent statement made by the witness, Mr. Narayan.

[3] After reading the Summing Up, I have come to the conclusion that the above grounds are arguable. But I do not think the appeal has every chance of success, which is the test for bail pending appeal.

[4] The 2nd appellant's grounds of appeal are:

1. The Learned Trial Judge erred in law and in fact when he stated in the voir dire that it was for the Appellant to produce evidence to support his allegations of Police assault despite been taken to the doctor in Police custody.
   
2. The Learned Trial Judge erred in law and in fact when he incorrectly directed the assessors that both the Accused were charged with theft when only the other Accused was charged with theft thereby causing prejudice to the Appellant.
   
3. The Learned Trial Judge erred in law and in fact when he informed the assessors without cautioning them that the witness called by the Appellant who saw the Appellant been assaulted by Police Officers at Nabua Police Station was there for an interview in an embezzlement matter which was an offence of dishonesty thereby causing substantial miscarriage of justice.
   
4. The Learned Trial Judge erred in law and in fact when he misdirected the assessors by using the phrase "fanciful doubt" resulting in substantial miscarriage of justice.
   

[5] Both parties have filed detailed submissions. I do not have to consider the merits of the grounds of appeal at this stage. The test for leave is less stringent. The test is whether any of the ground of appeal is arguable. After considering the submissions of both parties, I have come to the conclusion that the grounds are arguable. The fourth ground also applies to the 1st appellant.

Result

[6] Leave granted. Bail refused.

..............................................
Hon. Mr. Justice Daniel Goundar
JUSTICE OF APPEAL

Solicitors:
1st Appellant in person
Office of the Legal Aid Commission for 2nd Appellant
Office of the Director of Public Prosecutions for the Respondent