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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 0099 of 2016
[In the High Court at Lautoka Case No. HAC 047 of 2014]
BETWEEN:
RUSIATE TEMO ULUIBAU
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, JA
Counsel: Appellant in person
Mr. S. Babitu for the Respondent
Date of Hearing: 18 August 2020
Date of Ruling : 21 August 2020
RULING
[1] The appellant had been indicted in the High Court of Suva on two counts of Act with Intent to Cause Grievous Harm [section 255(a)], one count of Aggravated robbery [section 311(1)(a)] and Damage to property [section 369(1)] of the Crimes Act, 2009 committed with 04 others [three of whom are the appellants in AAU0092/2016, AAU 0100/2016 and AAU0067/2017] on 06 April 2014 at Nadi in the Western Division.
[2] The information read as follows.
‘FIRST COUNT
Statement of Offence
ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary toion 255 (a) of t of the Crimes Decree 44 of 2009.
Particulars of Offence
PENI YALIBULA, MIKAELE TURAGANIVALU, RUSIATE TEMO ULUIBAU, UL QALOMAI an60;andTEVITA QAQANIVAANIVALU on th day of April 2014 at 4 at Nadi in the Western Division, with intent to cause grievous harm to unlawfullyfully wounde the said MANI RAM icking,king, hittnd striking him in the head head with a liquor bottle.
SECOND COUNT
Statementffenc
>
ACT WITH INTENT TO CAUSE GRIE GRIEVOUS HARM: Contro Section 255 (a) of t of the Crimes Decree 44 of 2009.
Particulars of Offence
PENI YALIBULA, MIKAELE TURAGLU, RUSIATE TEMO ULUIBAU, ULAIASI QALOMAI a160;and>TEVITA QAQANIVAANIVALU on th day of April 2014 at 4 at Nadi in the Western Division, with intent to cause grievous harm to NAUSAD MOHAMMED, unlawfulunded the sa60;sa60;
>TCOUNT
Statement of Offence
AGGRAVATED ROBBERY: Contrary toion 311 (1) (a) (a) of the Crimes Decree 2009.
Particulars of Offence
and&;and VITA IVAANIVALU on60;on the 6th d April 201l 2014 at Nadi in the Western Division, robbedMANI RAMof assorted liquor valued at $3,400.00, assortearettlued ,300.00 and $5,300.00 cash all to the tthe total otal value of $10,000.00
and immediately bely before the robbery, force was used on the said MANI RAM. FOURTH COUNT DAMAGING PROPERTY: Contraryection 369 (1) of t of the Crimes Decree 2009. Particulars of Offence PENI YALIBULA, MIKAELE TURAGANIVALU, RUSIATE TEMO ULUIBAU, ULAIALOMAI and&#and [3] After trial, the assessors expressed a unanimous opinion of guilty against the appellant on all charges on 0e 2016. The learned
High Court judge in his judgment on 13 June 2016 had agreed with the ashe assessors and convicted the appellant as charged. He had
been sentenced on 11 July 2016 to 10 years of imprisonment for all offences (aggregate sentence) with a non-parole period of 07 years.
[4] The appellant being dissatisfied with the conviction and sentence had in person signed a timely application for leave to appeal
on 27 July 2016 (received by the CA registry on 08 August 2016). He had tendered written submission on 10 June 2020 with three grounds
of appeal against conviction only and he stated at the leave to appeal hearing that he would rely only on those grounds. The state
had filed its submissions on 17 August 2020. [5] In terms of section 21(1)(b) of the Court of Appeal Act, the appellant could appeal against conviction only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds. [6] Grounds of appeal against conviction. ‘That the Learned Trial Judge erred in law when His Lordship [7] The prosecution evidence of the case as summarised by the learned High Court judge in the sentence order is as follows. ‘[3] The Complainant, Mr. Mani Ram, had been running a shop in Matintar, Nadi, for the past 40 years. To cater to customers
who enjoy the night life in the Airport City of Nadi, he kept his shop open till late night in the company of his security guard,
Mr. Naushad. Five accused came in a mini-van, got off near the shop and started drinking alcohol. Around 3 a.m., they came to the
counter of the complainant’s shop in the guise of customers and tried to forcibly enter the shop through the opening at the
counter. Failing of which they broke off the rear door and entered the shop forcibly. They went on rampage in the shop completely
disregarding personal and property rights of the shop keepers. They wounded the complainant and his security guard kicking, hitting
and striking brutally with bottles, and destroyed the property. They robbed valuable goods and cash. 1st accused was aended red hand handed by members of the public while others fled with the loot. The entire ‘horrific drama’
lasted nearly for eight minutes was beinretly recorded by six surveillance cameras installed in then the shop. The CCTV footages
obtained from cameras helped the police to identify the culprits who were later apprehended. 1st accused made a confession to police. Other accused were positively identified by the prosecution witnesses. The CCTV footage displayed
during trial showed a systematic and coordinated bruttack on the victims and their property.’ 01st ground of appeal [8] To understand the appellant’s complaint one has to look at the evidence led against him. The trial judge has set out the
evidence of witness Mr. Mani Ram in the summing-up as follows. ‘57. He had seen the third accused earlier as a customer. Even though the accused was a frequent visitor he had not known his
name and where he was actually from, but he knew his face. At the time he gave his first statement to police he was not in a stable
condition. He could not recall how many statements were given to police. He later admitted giving a statement on 30th of Oc, 2014, after watchingching the CCTV footage. He said that the description- ‘a thin tall Fijian man’ referred to
in the 1ststatement was the man who first approached for a cigarette role. 116. 3rd accuss identified by Mr. Mar. Mani Ram at the ID parade within 36 hours after the incident. . Mani Ram said that 3rd ad’s fa;s face was faas familiar to him as a frequent visitor to his shop. 3rd ad denied having shopped ated at his shop earlier. 3rd accused took two different versions as to the basis of histification at the ID parade. He said that he was pointed out by police
officers to Mr. Mani Mani Ram before the ID parade was conductn the other hand, he said he was singled out at the parade rade as
the only person having injuries. You watched the CCTV footage also. [9] The trial judge had given his mind to the evidence against the appellant in the judgment as follows. ‘23. There is no reason to reject Mani#8217;s evidence. I am sati satisfied that Mani Ram is an honest and reliable witness. This is not a fleeting glimpse case. Robbers had confronted the witnesses face to face for a considerable time. Their faces were not covered. Lighting condition had been good. Video footage confirmed that conditions were conducive for a proper
identification. I am satisfied that Mani Ram positively identified the 3rd accused.
Statement of Offence
(i) Did not direct the Assessors for the need for such a warning in clear terms on the dangers of convicting on recognition;
(ii) Did not direct the Assessors and himself to consider the appropriateness of the parade regarding the fact of having the Appellant
as the only person with injuries in the identification parade; and
(iii) Did not warn the Assessors on the weakness of the identification parade with regards to the fact that the Appellant would have
been seen by the Complainant when he was taken for reconstruction during investigation and before the identification parade on the
7th April, 2014.
[11] This ground of appeal has no reasonable prospect of success.
02nd ground of appeal
[12] The appellant argues that the trial judge should have directed the assessors to consider the appropriateness of the identification parade because he was the only person with an injury at the ID parade which had not been accepted by Mani Ram who identified him at the ID parade. The trial judge had addressed the assessors on the appellant’s stand in the following manner.
‘103. Temo resided at Waiyavi in Lautoka, Stage I in 2014. On the 5th day of April, 2014, he was in Lautoka. On the 5th oil, he was watching moviesovies during night time with a friend. He knew nothing about the robbery. He was asleep at home. e earrning of the 7th of Ahe was was arrested aned and was taken to Nadi by poly police officers and taken to a shop in Martintar. From there, he was taken to the Nadi Police Station. He was shown to the Indian men there. Mani Ram and the security were present at the shop. He denied having any knowledge about the Daily Shop and the robbery. Then police officers started beating him. He received visible injuries and his leg got swollen. He was taken to the hospital and, on the 8th of Apris taken to an ID parD parade where some iTaukei people of different height and complexion were lined up. One of the same Inden who was at the shop came and pointed at him. He was the only person with injuriess. He denied shopping at Mani Ram’s shop any time before the incident.
[1
[13] Therefore, it is clear that the trial judge had addressed the assessors of all aspects of the appellant’s identification and co his cautionary note to them on having to take special care care in the matter of identification as stated above I cannot see any reasonable prospect of this ground of appeal.
03rd ground of appeal
[14] The appellant criticizes the trial judge for not having warned the assessors on the weakness of the ID parade given that witness Mr. Mani Ram may have seen him when he was taken for the reconstruction of the scene on 07th April before the ID parade.
[15] The trial judge had stated in paragraph 21 of the judgment that when the appellant was taken to Mani Ram’s shop after his arrest the witness had been still in hospital. Therefore, the appellant would not have been seen by Mani Ram at the reconstruction of the crime scene.
[16] There is no reasonable prospect of this ground of appeal.
[17] Although, separately framed all three grounds of appeal are interrelated and interconnected. The totality of the summing-up and the judgment show the futility of all of the grounds of appeal relating to different aspects of identification of the appellant.
[18] In Sahib v State AAU0018u of 87sNovember 199r 1992 [1992] FJCA 24 the CourAppeal said
‘It has been stated many times that the trhe trial Court has the considerable advantage of having seen and heard the witnesses. It was in a better position to assess credibility and weight and we should not lightly interfere. There was undoubtedly evidence before the Court that, if accepted, would support such verdicts.
We are not able to usurp the functions of the lower Court and substitute our own opinion.’
Order
1. Leave to appeal against conviction is refused.
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
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