IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
Criminal Appeal No: HAA023 of 2012

Between:

LIVAI RAVONOKULA
Appellant

And:

THE STATE
Respondent

Hearing: 10 January 2013
Judgment: 15 January 2013

Counsel: Appellant in person
Ms P. Low for State

JUDGMENT

[1] This is an appeal against conviction.

[2] The appellant was convicted of two counts of burglary and two counts of theft, after a trial in the Magistrates' Court at Labasa. He was sentenced to a total sentence of 3 years' imprisonment to be served concurrently with a pre-existing custodial sentence.

[3] The prosecution's case against the appellant was that he broke into the dwelling house of the complainant on two separate occasions in one day and stole a range of assorted liquor belonging to the complainant. The main evidence against the appellant was his confession made to a police officer under caution. The admissibility of the confession was determined by the learned magistrate in a voir dire hearing, after the appellant challenged it. Apart from the confession, there was circumstantial evidence of the recent possession of one of the stolen liquors from the complainant's dwelling residence. 

[4] The appellant filed his grounds of appeal in person. The grounds are unclear, but at the hearing, he clarified them by giving better particulars.

[5] The first ground of appeal is that the learned magistrate erred in not conducting the voir dire hearing at the outset of the trial.

[6] According to the court record, the voir dire was held after the prosecution had led evidence of the recent possession of stolen liquor from civilian and police witnesses. The appellant had apparently given a bottle of Bundaberg Rum to a taxi driver on the date of the alleged offences in exchange for taxi fare. The complainant identified the said rum as one of the items that was stolen from his home. This was not a case where the prospect of a conviction depended solely on the admissibility of the appellant's confession. When there is some other evidence apart from a confession that can take the prosecution's case beyond a no case to answer stage, then the practice of holding a voir dire at the outset of the trial is not applicable. 

[7] In Rokonabete v State Criminal Appeal No. AAU0048.005S (14 July 2006), the Court of Appeal said at paragraph 24:

Whenever the court it[sic] advised that there is challenge to the confession, it must hold a trial within a trial on the issue of admissibility unless counsel for the defence specifically declines such a hearing. When the accused is nor[sic] represented, a trial with[sic] a trial must always be held. At the conclusion of the trial within a trial, a ruling must be given before the principal trial proceeds further. Where the confession is so crucial to the prosecution case that its exclusion will result in there being no case to answer, the trial within a trial should be held at the outset of the trial. In other cases, the court may decide to wait until the evidence of the disputed confession is to be led.

[8] I am satisfied that the learned magistrate complied with the procedure endorsed in Rokonabete's case and no error has been shown in the manner the admissibility of the appellant's confession was determined. This ground fails.

[9] The appellant's second ground of appeal is that the learned magistrate erred in accepting the circumstantial evidence adduced by the prosecution at his trial. At the hearing of the appeal, the appellant clarified this ground by saying that the prosecution led evidence of an assorted liquor that was not subject of the charges. 

[10] PC Raj was the investigating officer in this case. He gave evidence that he seized a carton of drinks and a quarter full bottle of Captain Morgan Rum from the appellant. The Captain Morgan Rum was not an alleged stolen item. Counsel for the State accepts that the evidence of Captain Morgan Rum should not have been led in evidence by the prosecution but submits that the appellant was not prejudiced by the error. I agree. The only reference to the Captain Morgan Rum in the learned magistrate's judgment is when she summarized PC Raj's evidence. Captain Morgan Rum was not used as a basis for circumstantial evidence to convict the appellant. Bundaberg Rum, which was identified by the complainant as to be his property, was used as circumstantial evidence. The second ground of appeal fails.

[11] The third ground of appeal is that the learned magistrate erred in accepting the contradicting statements of the prosecution witnesses. This ground lacks particulars of the alleged contradictions in the prosecution's case. A perusal of the court record does not support this ground. The learned magistrate carefully analysed all the evidence and decided to accept the prosecution's evidence over that of the appellant's witnesses. No error has been shown in the learned magistrate's findings of credibility and reliability of witnesses called by the prosecution. This ground fails.

[12] The final ground is that the conviction is unsafe. At the hearing, the appellant relied on Nawana J's ruling on a voir dire in State v Cakau & Ors Criminal Case No. HAC143 of 2007 (Ltk) to advance submissions to the effect that a confession made to a police officer is inadmissible unless corroborated. I have read Nawana J's ruling in Cakau's case. The ruling does not support the appellant's submission. In any event, the proposition that the appellant's confession was inadmissible without corroboration is wrong in law. Jurisdictions that have adopted requirements of corroboration for admissibility of confessions have done so by legislation. In Fiji, the admissibility of confession made by an accused to a person in authority is still governed by the common law and not by legislation. 

[13] None of the grounds have been made out. The appeal against conviction is dismissed. 

Daniel Goundar
JUDGE

At Labasa
15 January 2013

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions, Labasa for State