IN THE HIGH COURT OF FIJI AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO: HAA 034 OF 2001S
BETWEEN:
THOMAS BLAKELOCK
Appellant
AND:
THE STATE
Respondent
Counsel: Mr G.E. Leung & Ms Sorby for Appellant
Mr A. Herman for Respondent
Hearing: 17th May 2001
Judgment: 22nd May 2001
JUDGMENT
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Appellant appeals against his conviction inKadavu Magistrates Court, on 6th April 2001, on the following offence:
Statement of Offence
GROWING INDIAN HEMP: Contrary to se 8(a) and 41(2) of the Drug Act 114 as amended by Dangerouserous Drug Decree No. 4 of 1990 and Dangerous Drug Decree
No. 1 of 1991.
Particulars of Offence
THOMAS BLAKELOCK, on the 3rd day ofmber 1995 at Kadavu, in the Eastern Division grew Dangerous Drugs, namely 803 plants of Indf Indian
Hemp.
The Appellant was not brought to court until 23rd April 1998, for first call. Thereafter after that dae court record shows numerous
adjournments for various reas reasons, as follows:
23 April 1998: & &nsp; &nbsferred due to absence once ofce of Mr Bulewa.
27 August 1998: &nbssp; Accused in Person. Pleadedeaded Not Guilty and elected Magistrates Court trial.
2 June 1999: p;&nssp; p; &nbp; &nbp; Accused in n. Aojourned toed to 27/8/99 for Hearing.
27 August 1999: &nbbsp; Accused represented by J Wy J Waqavolavola. Prosecution seeks adjournment due to unavailability of witness.
17 December 1999: Defence Counseent and aske asked for adjont by letter. Counsel couldcould not get seat on plane. Hearing 6/4/2000.
6 April 2000: p; &&bsp;;&bspp; &nnsp; Defence ence Cnce Counsel not present, prosecution witnesses not present. <1"> &-GB>
12 July 2000: & p;&nbbsp;&bsp; &bsp; p; &nbep; Mention.tion. Adjourned to 23/8/2000.
p class=MsoNormaNormal style="text-indent: -105.75pt; margin-left: 5.0cm; margin-top: 1; margin-bottom: 1"> 23 August 2000: p;&nbbsp;& bsp; Mr Bulr Bulewa absent as he is in Sigatoka,toka, seeks to adjourn to 13/12/2000.
13 December 2000:&nnbsp; Accused absent. Counsel absent, Notice of Adjourned Hearing to 5/4/2001.
5 April 2001: &nbbsp;& &bsp; &nbpp; Accused present, Mr Bulewaulewa absent. He told accused he wasydney and would arrange alternative
counsel. Adjournment refused. Trial proceeds.
The record shows that Mr Bulewa, who was the Appellant’s counsel in the Magistrates Court, never appeared to represent him. Mr Bulewa’s
representative, Mr Waqavolavola, only appeared once, on the 27th of August 1999. The prosecution asked for an adjournment twice,
on 2nd June 1999 and 27th August 1999. The Defence asked for adjournments four times, all on the ground of the unavailability of
counsel. The delays in the case appear to have been exacerbated by the fact that Kadavu court sits infrequently and is sometimes
inaccessible for counsel, and witnesses. Indeed, the record reveals a sad history of how justice is not always delivered efficiently
for those in the island communities.
Be that as it may, the Appellant was unrepresented at trial. rosecution called five witnesses. The first witness Special Constable
Bikeli gave evidence ence that he arrested one Semi Rasiga for being in possession of Indian hemp. When interviewed Semi Rasiga said
that the leaves had been given to him by the Appellant, and that he knew where the plantation was. He then showed the police the
plantation. Constable Bikeli, with the other officers then uprooted 803 plants and took them to the station. There was no other farm
around the area, and the Appellant was not at his farm at the time.
The second witness Semi Rasiga was a serving prisoner at Ko Prison. He said the Appellant was his uncle, but that he only planted
yaqona and dalo on h on his farm. He was then shown his police statement. After reading it, he said that the Appellant had a marijuana
plantation and agreed that he had helped the Police uproot the marijuana.
The third witness, Police Constable Sakeo, said he had aanied Sergeant Apakuki, Special Constable Ulaiasi and Bikeli and Semi Rasiga
to uproot mari marijuana plants from the Appellant’s plantation. In answer to the court’s questions, he said he had interviewed the
Appellant, and tendered the record of the interview. The fourth witness Police Constable Josua, tendered the charge statement, and
the last witness Sergeant Apakuki said he uprooted the plants and gave them to the Koronivia Research Station for analysis. He tendered
the report.
The Analyst’s report, dated 20/11/95 stated that the marijuana given for analysis, weighing 30.8 kg, wasan hemp. The interview record
tendered shows that the AppelAppellant denied planting marijuana on his farm and knew nothing of the uprooted plants.
The learned Magistrate found that there was no rebuttal of any of the prosecution evidence by the Appellant, who had remained silent,
and called no witnesses. He found him guilty, and sentenced him to 5 years imprisonment.
Grounds of Appeal
Ground a
The first ground of appeal is that the conviction is unsafe. In his comprehensive skeletal arguments, and his oubmissions, Mr Leung
for thor the Appellant argued that the evidence of Semi Rasiga was inherently unreliable. He suggested that Semi Rasiga was a serving
prisoner who changed his evidence after being shown his statement to the police.
State counsel says that the evidence against the Appellant was overwhelming and that the learned Magte did not need to consider the
weight of Semi Rasiga’s evis evidence.
It is apparent that Semi Rasiga was on the verge of turning hostile, when he changed his mind on being shown his police statement.
It might also be suggested that he forgot his evidence, until his memory was refreshed in the witness box.
Where a witness has been declared hostile, a court is required to direct itself and/or the assessors, that vious statement made out
ofut of court is not evidence, and that the court may put whatever weight it thinks fit on the nature of the evidence giving, having
regard to the inconsistency (Driscoll -v- R (1977) 51 ALJ 731 (High Court of Australia) ).
However, in this case before me, Semi Rasiga was not declared hostile, no the prosecution make an application to have him declared
hred hostile. A “hostile witness warning” therefore was not necessary, although in fairness the learned Magistrate ought to have
referred to the inconsistency/lapse in memory in his judgment. This is particularly so when the Appellant was unrepresented. However,
I would not be inclined to uphold the ground of appeal if it were not for the fact, that the judgment contains no corroboration warning
in respect of accomplices.
Semi Rasiga was undoubtedly an accomplice. The marijuana he was found in possession of, was obtained from thused. In Davies -v- -v- DPP (1954) AC 378, 400, an accomplice was defined as a person who participated in the actual crime charged, or procured, aided or abetted it, or participated
in committing crimes of the same or similar character. Semi Rasiga admitted to being in possession of a dangerous drug which was
allegedly grown by the Appellant. He was therefore participes criminis in respect of the offence charged and was an accomplice.
As such the learned Magistrate had a duty to direct himself on the danger of convicting the Appellant in the absence of corroboration.
The judgment does not refer to the evidential value of Rasiga’s evidence at all. If the learned Magistrate had considered the danger
of convicting in the absence of corroboration, he would have realised that there was no independent evidence proving that the farm
on which the marijuana was found, was the Appellant’s. There is no confession, and no witness who was able to say that the farm in
question, belonged to the Appellant.
The corroboration rule has now been abolished in Australia, New Zealand and England. However it is still the law in Fiji. The 1992
edition of Archbold (Criminal Pleading Evidence and Practice) summarises the law on the corroboration of accomplice evidence thus,
at 16-36:
“Where an accomplice gives evidence for the prosecution, it is the duty ofjudge to warn the jury that, although they may convict on
h on his evidence, it is dangerous to do so unless it is corroborated. This rule, although a rule of practice, has now the force
of a rule of law and where the judge fails to warn the jury in accordance with this rule, the conviction will be quashed, even if
in fact there be ample corroborative evidence, unless the Court of Appeal can apply the proviso to section 2(1) of the Criminal Appeal
Act 1968.”
Section 319(1) of the Criminal Procedure Code, contains a proviso that the High Court, may “... notwithstanding that it is ofion that the point raised ised in the appeal might
be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually
occurred.”
The record shows not only an absence of corroborative evidence, but also an absence of any reference in the judgment as to the elements
of the offence that the prosecution had to prove. Sections 8(a) and 41(2) of the Dangerous Drugs Decree No. 4 of 1990, and the Dangerous
Drugs Decree of 1991, require proof of the following:
1) &nbbsp;& p;&bsp;   &nnbsp;;&nspp;&nsp; &nsp;
2) 3) stylnt:7.quot;Times New Roman""uot;">&nbs> &nbp; &nnbsp;;&nbp; &nsp; &nnbp;&&nbp;; &nnbsp; Dpan>Dangeroug Drugs namely Indian Hemp.
The only evidenvidence that the plants of Indian hemp were grown by the Appellant, came femi Rasiga. The Appellant was unrepresented
and asked no quno questions at all, of Rasiga. Nor did the court ask any questions. Nor is it clear why the prosecution was permitted
to refresh the memory of Rasiga, or whether the statement shown to him was contemporaneous with the events in question.
Given the circumstances of the case, I decline to apply the proviso. This ground of appeal is successful.
Ground c
Ground b is dealt with in relation to Ground a. Ground c is that the lant did not receive a fair trial because he was unrepresented.
Section 28(b) and (d) of the Constitution provides that:
“Every person charged with an offence has the right .... (d) to defend himself or herself in person or to be represented, at his or
her own expense by a legal practitioner of his or her choice ..........”
The record shows that the Appellant had instructed a solicitor, but that he had only been represented once by counsel, on the 27th
of August 1999. In his decision to proceed without counsel, the learned Magistrate said:
“Court is not convened for the convenience of defence counsel. There is no correspondence from the de counsel. In view of that Ihat
I shall proceed to hear this case today for the following reasons:
1) &nnbsp;;&bspp;&bssp;&bbsp;&bsp; It’s a serious and and prevalent offence which was coed in; &nGB> 2) & p; &nsp;&nbssp;&ssp; p;nbssp;&nbp; &nbp; an>Tpe prosecutaon had to b to bring in 6 witnesses from Viti Levu, onehom
iervinsoneran>
3) &nbbsp;& p;&bsp; &bsp; &&nbp;;&bsp; &nbbp; Tpan>The 12 months limit required under sec202(7the Criminal Procedure (Amendment) Act 1998 had expired a long time back.”span>
<
<
The learned Magistrate’s reasoning, given the history of the case, and the number of times Defence Counsel had failed to come to court,
is difficult to fault.
The right to counsel under section 28 of the Constitution must be balanced the right to a trial within a reasonable time, under sectisection
29(1) of the Constitution.
In the circumstances I find that the learned Magistrate did not err in deciding to proceed without counsel.p class=MsoNormal style="mae="margin-top: 1; margin-bottom: 1">
However, having decided to proceed without counsel, there was an added burden on the ld Magistrate to ensure that the Appellant was
not prejudiceudiced by the absence of counsel.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In McInnis -v- The Queen (145) [1979] HCA 65; (1979) 143 CLR 575, Mason J of the High Court of Australia, said, at p
“The question is primarily to be resolved by looki the nature and strength of the Crown case and the nature oure of the defence which
is made to it. If the Crown case is overwhelming, then the absence of counsel cannot be said to have deprived the accused of a prospect
of acquittal. If the accused in such a case has prosecuted his defence with skill, that may constitute some confirmation that conviction
was inevitable in any event. But if the Crown case is less than overwhelming I have some difficulty in perceiving how in general
the conduct of the case by an accused who is without legal qualification and experience can demonstrate that, even with the benefit
of counsel, he had no prospect of an acquittal.”
The record shows that the Appellant did not crossine any of the witnesses, except for a single question asked of PW3 (which was of
little rele relevance). Nor did the Court ask any questions, particularly of the accomplice Semi Rasiga. Nor did the learned Magistrate
in his judgment, refer to the elements of the offence, and the evidence adduced to support those elements. As I have already said,
there was no corroboration warning as to the danger of convicting on uncorroborated evidence of the accomplice.
In these circumstances I am not satisfied that the Appellant was not prejudiced by his lack of representation by counsel. This grou
also successful. The conviconviction and sentence are therefore quashed.
Re-trial
This is a very old matter. The offence was purportedly committeNovember 1995. However, the offence is a serious one carrying a maximum
sentence of 14 year years. Furthermore it appears from the interview record tendered that the reason the case was not brought until
August 1998 was because the Appellant was avoiding the police. Furthermore although the prosecution asked for a number of adjournments,
the defence was not blameless in this regard.
Taking all these matters into account, especially the seriousness of the offen consider that a re-trial ought to be ordered.
Summary
The grounds of appeal are successful. Conviction and sentence are quashed. A re-trial dered.
Nazhat Shameem
b>JUDGE
At Suva
22nd May 2001
