IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 74 OF 1992

Between:

1. LORIMA TURAGANISOLEVU
2. JONE BATINIKA
Appellants

- and -

THE STATE
Respondent

Appellants in Person
Mr. J. Naigulevu for the Respondent

JUDGMENT

The appellants were jointly charged with an offence of Burglary and Larceny. They both pleaded not guilty and were tried and convicted in the Magistrate Court, Nausori. Upon their conviction the appellants were both sentenced to 2 years imprisonment.

The appellants have appealed against both their convictions and sentences and both have urged 5 almost identically worded grounds in support of their respective appeals.

The first ground which they urge is that they were denied their 'right of election'. However since the Electable Offences Decree 1988 the offences with which the appellants were charged ceased to be an 'electable offence' and accordingly there has been no error on the trial magistrate's part in this respect. This ground of appeal is misconceived and is dismissed.

The appellant's remaining grounds of appeal against their convictions may be summarised as being based on the insufficiency of the evidence against them and a vague allegation of bias against the learned trial magistrate.

I should say at once that there is not the slightest hint of 'bias' in the entire Magistrate Court record. Certainly the appellants were unable to point to anything that might raise it. Needless to say such a serious allegation ought not to be made without some reasonable basis for doing so. In the absence of such basis this Court will not entertain such a ground of appeal. This ground is dismissed as being entirely without merit.

The prosecution's evidence before the trial magistrate comprised the complainant's evidence (which in large part was hearsay) and the confessional statements of each appellant. None of the stolen items were recovered nor were any finger-prints lifted from the scene. Entry into the house was gained through a bathroom window from which several louvre blades had been removed. No identification parade was held nor was one necessary having regard to the complainant's evidence.

The appellants in their defence made unsworn statements denying any knowledge of the offence. They also raised the 'voluntariness' of their respective statements in their cross-examination of the 3 police officers called by the prosecution and the 2nd appellant called his wife in an effort to establish an "alibi" on his behalf.

It is clear from the learned trial magistrate's judgment that the appellant's convictions were based entirely upon their respective confessions.

In particular the trial magistrate said: 

"Both accused's denied having committed the offence and accused the police for threatening them to admit the offence. There are times when the Courts were quite wary in accepting the statements taken from accused's persons because of the nature at which it was taken and the circumstances ... 

But, in this case, where both accused's cannot defend themselves, but hoping this Court would succumbed to their allegations against the police.

The allegation therefore is unfounded and the Prosecution have proved their case beyond reasonable doubt."

Clearly the learned trial magistrate was keenly aware of the question of the voluntariness of the appellant's confessional statements and the nature of the allegations made against the police officers concerned.

Learned State Counsel in seeking to support the appellant's convictions referred to their confessions to the police in which they both admitted taking part in the offence. In particular Counsel described the confessions as being 'intrinsically reliable' in so far as they contained details which the appellants were allegedly forced to admit by the police but which formed no part of the charge and other confirmatory admissions such as the point of entry and the manner in which the burglary was carried out i.e. with one appellant inside the house and the other outside.

It is also noteworthy that in neither statement has either appellant denied any knowledge of the offence. Furthermore no complaint of threats or assault was ever made against the police on the numerous occasions that the case was called in the lower Court prior to the trial.

In the light of the above bearing in mind that the trial magistrate's decision was based on an assessment of the credibility of the "two versions" placed before him this Court can see no good reason to interfere with that finding.

The appeals against conviction are therefore dismissed.

As for the sentence of 2 years imprisonment an examination of the charge reveals that the most "valuable" item stolen was currency in the form of Australian travellers cheque (accounting for over half the total value of the items stolen). These would be of little value to the appellants and easily replaced by the complainant's bankers.

In the circumstances whilst the sentence is completely proper some consideration may be given to the above factor. The sentences are accordingly reduced to 18 months imprisonment with effect from the 14th of May 1992.

(D.V. Fatiaki)
JUDGE
At Suva,
8th March, 1993.
HAA0074J.92S