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Balevirewa v State [2025] FJCA 13; AAU0020.2023 (18 February 2025)

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

CRIMINAL APPEAL NO. AAU 0020 OF 2023
[Lautoka High Court: HAC 26 of 2021]

BETWEEN:

VILIMONE BALEVIREWA

Appellant

AND:

THE STATE
Respondent

Coram: Mataitoga, P

Counsel: Appellant in Person

Swastika S for the Respondent

Date of Hearing: 5 February, 2025

Date of Ruling : 18 February 2025

RULING

1. The appellant [Vilimone Balevirewa] was charged with 3 counts of Attempted Murder Contrary to section 44(1) and 237 of the Crimes Act 2009. His trial was at the High Court at Lautoka. The prosecution called 9 witnesses before it closed its case. The court found that there was a case to answer for all the 3 charges.
   
2. The appellant was put to his defence, in doing the options of giving evidence for himself or to remain silent we explained by the court to him. He opted to give evidence and be cross-examined.
   
3. Following a trial lasting 5 days, the appellant was found guilty of 2 counts of Attempted Murder and 1 count of Act with Intent to Cause Grievous Harm contrary section 258 Crimes Act 2009. He was convicted on 24 October 2022.
   
4. The appellant was sentenced 15 November 2022, to an aggregate sentence of mandatory life imprisonment with a minimum 9 years, 1 month and 20 days to be served before pardon may be considered.
   

The Appeal

5. The appellant filed a Notice for An Application for Leave to Appeal Against Conviction and Sentence dated 20 November 2022. This Notice had 1 ground of appeal against conviction and 1 ground against sentence.
   
6. The appeal was timely.
   
7. On 4 October 2023, the appellant filed Amended Grounds of Appeal Against Conviction and sentence. There were 5 grounds of appeal against conviction and 1 ground against sentence.
   

Grounds of Appeal

8. Against conviction, the following grounds were submitted
   
   1. Claim of incompetent counsel
   2. Failure to conduct voire dire
   3. Error of law and facts due to the fact that on the evidence in trial all that was proven was causing grievous harm and not attempted murder
   4. Inconsistencies in the evidence of the complainant during cross-examination which affected her credibility
   5. On the totality of the evidence, it was unreasonable to convict the appellant as charged.
      
9. The above grounds involve both questions of law and fact and therefore leave is required for appeal to the court of appeal pursuant to section 21(1)(b) of the Court of Appeal Act 2009.
   
10. For a timely appeal, the test for leave to appeal against conviction is ‘reasonable prospect of success’ see: Caucau v State [2018] FJCA 171; Navuki v State [2018] FJCA 172 and State v Vakarau [2018] FJCA 173; and Sadrugu v The State [2019] FJCA 87.
    

Assessment of Grounds of Appeal

Incompetent Counsel

11. The first ground was abandoned at the hearing after it was pointed out to the appellant that if he wants to pursue this ground he must follow the procedure set out by the Court of Appeal in Nilesh Chand v State [2019] FJCA 254. This ground on incompetent counsel was not pursued.
    

Vior Dire

12. The second ground was the failure of the trial judge to conduct a Voire Dire to determine if the admission of the offence charged in the appellant’s caution interview statements were made voluntarily by him and not fabricated by the interviewing officer Cpl Amani Waqetia [PW8].
    
13. Section 288 of the Criminal Procedure Act provides for voir dire hearings to be conducted at any stage of the proceedings after the plea has been taken. 33. The principles relating to voir dire hearings are well settled and were discussed in the case of State –v- Nakauyaca – Voir Dire Ruling [2020] FJHC 825; HAC 283 of 2019 (9 October 2020).
    
14. In Ganga Ram and Shiu Charan v. Reginam; Criminal Appeal No. 46 of 1983 (13 July 1984) (unreported) the Fiji Court of Appeal outlined the two grounds to be considered for admissibility of confessions. It will be remembered that there are two matters each of which requires consideration in this area. First it must be established affirmatively by the Crown beyond reasonable doubt that the statements were voluntary in the sense that they were not procured by improper practices such as the use of force, threats or prejudice or inducement by offer of some advantage - what has been picturesquely described as the flattery of hope or the tyranny of fear.
    
15. In this instance the issue raised is not lack of voluntariness but fabrication, of the appellant’s caution interview statement. It is incorrect to claim that viore dire was necessary.
    
16. The trial judge in paragraphs 135 to 142 of the Judgement sets out the caution interview statements Q and A and why he accepted the explanation given a true picture of what the accused had done.
    
17. This ground has no merit.
    

Trial Evidence not Attempted Murder by Grievous Harm

18. The relevant paragraphs of the Judgement are 127 to 134. In these passages the trial judge set out the evidential basis for two attempted Murder charges against the two victims Tarusila [appellant’s wife] and Meli [appellant’s Brother-in-law].
    
19. The trial judge at paragraph 127, made the following determination:
    

“127. There are two incidents involving the first complainant and one incident involving the second complainant. The medical reports of both the complainants are self-explanatory in respect of the injuries suffered by them. The issue in this case is whether the accused intended to kill both the complainants by his conduct and what he did was more than merely preparatory.

128. For this court to come to a decision it is important to consider all the evidence holistically.
     
129. In respect of the first incident I accept the version of the first complainant Tarusila as truthful and reliable. She told the truth when she told the court that the accused had punched her, was sitting on her stomach and had choked her neck by using both his hands. The injuries seen by the examining doctor also supports the account given by the complainant. This court also accepts the medical findings of the doctor as reliable evidence. The doctor stated that from his findings substantial force was applied to the front region of the complainant’s neck possibly a case of strangulation.”
     
20. The medical evidence adduced at the trial was overwhelming that the charges of attempted murder are proven beyond reasonable doubt. At paragraph 132 and 132 the trial judge found:
    

“132. The opinion of Dr. Sabua upon the medical examination of both the complainants is also acceptable and it supports the version given by the complainants. The doctor had also illustrated her specific medical findings in the Fiji Police Medical Examination Forms of both the complainants. Although both the complainants did not specifically say anything about the type of weapon used on them in the bedroom it is completely understandable considering the circumstances prevailing in the bedroom at the time.

133. Tarusila was sleeping after taking her medication naturally oblivious to what could happen to her and Meli in the heat of the moment just ran into the bedroom after he came to know that his sister was under threat by the accused. I accept that the altercation was happening fast and there was no time for the complainants to realise how they got injured. The fact that they had escaped and were alive was important over anything else.

134. Vinaina Babiau was present when the accused went into the bedroom and she was able to see what the accused had done to both the complainants. The accused in his evidence admitted that he had entered the bedroom where Tarusila was sleeping with the knife (prosecution exhibit no. 4) in his hand. I am unable to accept that the injuries sustained by both the complainants were accidental. The accused knew what he was doing and the consequences of his actions and there is no doubt in my mind that both the complainants were injured by the accused who had stabbed them with the knife he was carrying with him when he entered the bedroom.

21. This ground has no merit.
    

Inconsistencies in Complainant’s Evidence

22. This claim of inconsistencies is made in reference to the appellant’s allegation that the element of intent to cause death of the complainant [Meli] was not proven beyond reasonable doubt.
    
23. It may be implicit in this claim the fact that the appellant raised the self defence in that Meli was the one who attacked him first. This may be so, but the appellant as was found by the trial judge from paragraph 150 to 153 that the force he used was disproportionate and unreasonable, therefore self defence is not available.
    
24. The conclusion by the trial judge at paragraph 157 of the judgement is reasonable in light of the evidence at the trial.
    
25. This ground has no merit.
    

Unreasonable Verdict

26. In Rokete v State [2022] FJSC 11; the Supreme Court, per Keith J at paragraph 109:

“109. Marsoof J’s observation about the appellate court having to evaluate the evidence and independently assess it has to be seen in its context. He was explaining what the appellate court has to do in its “supervisory” role. When the appellate court is independently assessing the evidence, it is doing so to satisfy itself, to use Marsoof J’s own words, “that the ultimate verdict is supported by the evidence and is not perverse”. In other words, the function of the Court of Appeal is to look at the totality of the evidence, and assess whether it was reasonably open on the totality of the evidence for the trial judge to conclude beyond reasonable doubt that the accused was guilty of the charge he faced. It is not part of the Court of Appeal’s function to consider for itself whether on the totality of the evidence the accused is guilty. That would be to usurp the function of the trial judge who saw the witnesses and was the person solely entrusted with determining the guilt or innocence of the accused”

27. Applying the above principles in assessing whether the verdict was unreasonable, it is clear from the various reference to the evidence and their assessment by the trial judge that the verdict he reached were reasonable given the totality of the evidence called and hardly challenged by the appellant.
    
28. This ground has no merit.
    

Appeal against Sentence

29. It is well established law that before this Court can disturb the sentence, the appellant must demonstrate that the Court below fell into error in exercising its sentencing discretion. This error may be apparent from the reasons for sentence or it may be inferred from the length of the sentence itself (House v The King (1936) 55 CLR 499).
    
30. In Kim Nam Bae v State [1999] FJCA 21, the Court of Appeal set out the following factors for consideration in reviewing a sentence on appeal.
    
    1. Considered wrong principle
    2. Allowed irrelevant or extraneous factors;
    3. Made a mistake
    4. Does not take into consideration relevant factors
       
31. In reviewing the sentencing approach, it is clear that the trial judge had not erred in his approach and in the principles he relied on to determine sentence. Given the serious harm and lack of remorse in the appellant the sentence is not unreasonable.
    
32. Sentence appeal has no merit.
    

ORDERS:

1. Leave to appeal against conviction is declined
2. Leave to appeal against sentence is declined.
   

__________________________________
Hon. Justice Isikeli U. Mataitoga
PRESIDENT, COURT OF APPEAL