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Ramagimagi v State [2015] FJHC 243; HAM238.2014 (9 April 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 238OF 2014

BETWEEN:

SAMUELA RAMAGIMAGI
Applicant

AND:

STATE
Respondent

Counsel: Mr. R. Kumar for the Applicant
Ms. S. Kiranfor Respondent

Date of Hearing: 31 March2015
Date of Ruling: 9 April 2015

RULING

1. This is an application for leave to appeal out of time.
   
2. The Applicant was charged before the Magistrate Court of Lautoka with one count of Robbery.
   
3. Applicant pleaded Not Guilty and after trial convicted on 6.2.2014 and was sentenced on 13.3.2014 for 3 years 6 months imprisonment with 30 months as non-parole period.
   
4. This application for leave to appeal against the conviction was filed on 7.10.2014, 7 months out of time.
   
5. The Applicant had given following reasons for his delay:
   
   • (i) The learned Magistrate did not write the words '28 days to appeal' in the Judgment in order for the Applicant to understand the legal requirement to appeal the conviction within that time frame.
     
6. The Section 248 of the Criminal Procedure Decree provides:
   
   • (1) Every appeal shall in the form of a petition in writing signed by the Appellant or the Appellant's lawyer, and within 28 days of the date of the decision appealed against-
     
     • (a) it shall be presented to the Magistrates Court from the decision of which the appeal is lodged;
       
     • (b) a copy of the petition shall be filed at the registry of the High Court; and
       
     • (c) a copy shall be served on the Director of Public Prosecutions or on the Commissioner of the Fiji Independent Commission Against Corruption.
       
   • (2) The Magistrates Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.
     
   • (3) For the purposes of this section and without prejudice to its generality, "good cause" shall be deemed to include-
     
     • (a) a case where the Appellant's lawyer was not present at the hearing before the Magistrates Court, and for that reason requires further time for the preparation of the petition;
       
     • (b) any case in which a question of law of unusual difficulty is involved;
       
     • (c) a case in which the sanction of the Director of Public Prosecutions or of the Commissioner for the Fiji Independent Commission Against Corruption is required by any law;
       
     • (d) the inability of the Appellant or the Appellant's lawyer to obtain a copy of the judgment or order appealed against and a copy of the record, within a reasonable time of applying to the court for these documents.
       
7. The principles for an extension of time to appeal are settled. The Supreme Court in Kumar v State; Sinu v State [2012] FJSC 17; 2 CAV0001.2009 (21 August 2012) summarized the principles at paragraph [4]:
   

"Appellate courts examine five factors by way of a principled approach to such applications. These factors are:

(i) The reason for the failure to file within time.

(ii) The length of the delay.

(iii) Whether there is a ground of merit justifying the appellate courts consideration.

(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?

(v) If time is enlarged, will the respondent be unfairly prejudiced?"

8. More recently, in Rasaku v State [2013] FJSC 4; CAV0009, 0013.2009 (24 April 2013), the Supreme Court confirmed the above principles and said at paragraph [21]:
   

"These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargement of time. Ultimately, it is for the court to uphold its own rules, while always endeavoring to avoid or redress any grave injustice that might result from the strict application of the rules of court. "

9. The Applicant was not represented at the trial. The learned Magistrate had not recorded that the Applicant has time to appeal against the conviction. However, in the sentence the learned Magistrate had written that the Applicant has 28 days to appeal. Further it is recoded that the Applicant was explained his rights. The Applicant is not a novice to the Criminal Justice system. He has more than 10 convictions and had served sentences for those cases. The ground submitted for delay cannot be accepted and this application could be dismissed.
   
10. However, considering the fact that the Applicant was not represented at the trial, this court considered the grounds of appeal against the conviction in order to ascertain any substantial prejudice had been caused to the Applicant or there are grounds of merit justifying this court's consideration.
    
11. The grounds of appeal against the conviction are:
    

i. That the Learned Trial Magistrate erred in law when his worship did not afforded me the right to challenge the voluntariness of the admissions contained in the police records of interview statements on voir dire. Failure to hold a trial within a trial to test the admissibility of the confessional interview statement has thus resulted in serious miscarriage of justice.

ii. That the Learned Trial Magistrate erred in law when his worship convicted and sentenced me without the powers of original jurisdiction vested in him. This has resulted in serious miscarriage of justice and thus conviction is unsafe.

iii. That the Learned Trial Magistrate erred in law when his worship did not draw his mind to the requirements of Turnbull guidelines on identifications. Failure to do so resulted in a serious miscarriage of justice.

iv. That the Learned Trial Magistrate erred in law when his worship did not give directions that I was denied of the opportunity to test the correctness of PW (1) and (2) identifications in a proper identification parade. Failure to do so, has prejudiced my right to a fair trial.

Ground 1

12. The first ground is that the learned Magistrate had failed to hold a voir-dire inquiry. Such inquiry is required where the accused had made a confession to the police in his police statements and the prosecution is using that as evidence against the accused in the trial.
    
13. In Rokonabete v The State [2006] FJCA 40; AAU 0048.2005S (14 July 2006)it was held:
    

'Whenever the court is 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 not represented, a trial within a trail must always be held. At the conclusion of the trail within trial, a ruling must be given before the principal trail proceeds further. Where the confession is so crucial to the prosecution that its exclusion will result in there being no case to answer, the trail within a trial should be held at the outset of the trail. In other cases, the court may decide to wait until the evidence of the disputed confession to be led.

14. As there is no confession in this case, there is no requirement to hold a voir-dire inquiry. There is no merit in this ground and it fails.
    

Ground 2

15. The Applicant was charged under Section 293(1) (a) of the Penal Code. According to first schedule of the Criminal Procedure Code, the learned Magistrate has jurisdiction to hear this case with the consent of the accused. On 17.8.2009 that option was given to the Applicant. If he had elected a High Court trial the learned Magistrate should have transferred the case to the High Court. The Section 35 (2) (b) (ii) of the Criminal Procedure provides:

'All criminal cases to be heard by the High Court shall be transferred to the High Court in accordance with the Decree if the offence is an indictable offence triable summarily, and the accused has indicated to the Magistrates Court that he or she wishes to be tried in the High Court.'

16. In Batikalou v State [2015] FJCA 2; AAU31.2011 (2 January 2015) Court of Appeal held:

'[13] Indictable offences are tried in the High Court. However, indictable offences triable summarily, shall be tried by the High Court or Magistrate Court at the election of the accused person (section 4 (1) (b)). Such cases should be transferred to the High Court only if the accused has indicated to the Magistrate Court that he or she wishes to be tried in the High Court (section 35 (2) (b) (II) of the Criminal Procedure Decree 2009).'

17. Considering above it is clear that the learned Magistrate had Jurisdiction to hear this case. There is no merit in this ground and it fails.
    

Ground 3&4

18. The Applicant is known to the wife of the complainant. She had recognized the Applicant as a person who is known to her by his nick name and who used to come to her mother's shop 2 to 3 times a week. She further had stated that she saw him every day when he is playing. She had stated that she could recognize the Applicant at any time.
    
19. Therefore there is no reason for the learned Magistrate to guide himself with Turnbull guidelines.
    
20. In Wainiqolo v State [2006] FJCA 70; AAU 0027.2006 (24 November 2006) Court of Appeal observed that:
    

'The circumstances in the present case were different from a case where the first identification after the offence takes place in court. This was a case of recognition rather than identification of a stranger and different considerations arise.

An identification parade would have added nothing because it would not have tested the accuracy of her previous identification of the robber. She believed she had seen a person, a relative, she already knew. The accused is the person she thought she saw. If he had been placed on a parade, she would have been identifying him as that relative, not checking the accuracy of her original recognition of him. More than that, it would appear likely that an identification parade could be prejudicial in such a case because it could be seen as strengthening the initial identification when it is, in fact, no more than an identification of a person on the parade that she already knew and would be looking for.

Equally the identification in the dock was no more than identifying the accused as the person she knows as relative. It added nothing to the original recognition which, as we have said, was the identification the assessors needed to consider against the Turnbull warning.'

21. The Applicant had failed to satisfy this Court that any substantial prejudice had been caused to the Applicant or there are grounds of merit justifying this court's consideration.
    
22. Thus application for leave to appeal out of time against the conviction is dismissed.
    

Sudharshana De Silva
JUDGE

At Lautoka
9th April 2015

Solicitors: Office of the Legal Aid Commission for the Applicant
Office of the Director of Public Prosecutions for Respondent