Savu v State [2014] FJCA 208; AAU0090.2012 (5 December 2014)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the Magistrates' Court
Exercising Extended Jurisdiction]

CRIMINAL APPEAL NO. AAU0090 OF 2012
[Magistrates' Court Case No. 575 of 2012]

BETWEEN:

RUSIATE SAVU
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Chandra JA
Goundar JA

Counsel : Appellant in Person
Mr. L.J. Burney for the Respondent

Date of Hearing : 19 November 2014
Date of Judgment : 5 December 2014

JUDGMENT

Calanchini P:

I have read the draft judgment of Goundar JA and agreed with the proposed orders.

Chandra JA:

I have read the draft judgment of Goundar JA and agreed with the proposed orders.

Goundar JA:

[1] The appellant was charged with one count each of aggravated burglary and theft. He was convicted of both charges and sentenced to a total term of three years' imprisonment after a trial in the Magistrates' Court exercising extended jurisdiction. On 26 February 2014, the appellant was granted leave to appeal against his convictions on the ground that the learned Magistrate erred in law and fact in failing to direct herself on the Turnbull guidelines on the visual identification evidence that formed the basis for the convictions.

The Evidence

[2] The prosecution case against the appellant was based upon circumstantial evidence. The complainant, Meena Patel gave evidence that on 2 April 2012, when she opened her shop at Renwick Road she saw it was broken into. She saw the ceiling was damaged and the intruders appeared to have entered the shop by unbolting the corrugated iron on the roof. She found out that clothing and cash to a total value of $11,000.00 was missing.

[3] Nikhil Patel gave evidence that following the burglary he obtained the CCTV footage from a security camera in one of the buildings opposite his shop. The CCTV footage was tendered in evidence. The footage showed that two unidentifiable men entering the building next to the complainant's shop at 5.48pm on 31 March 2012 and leaving the building at 4.45am on 1 April 2012 carrying bags.

[4] The only evidence that incriminated the appellant came from the witness, Jeremaia Cakacaka. Cakacaka was a security officer at the next door building known as the Old Kadavu House that according to the prosecution was used by the burglars to enter the complainant's shop. Cakacaka said on 31 March 2012, he closed the gate to the Old Kadavu House around 8pm. In the early hours of 1 April 2012, Cakacaka confronted the appellant and his co-offender when he found them inside the Old Kadavu House. Cakacaka said he saw the appellant and his co-offender were carrying bags. Cakacaka had known the appellant for ten years. He knew the appellant by his nickname Toa. Cakacaka said he had a conversation with the appellant and his co-offender, and when they assured him that they had not stolen anything, he opened the gate for them to leave the premises.

[5] The appellant gave evidence that when the alleged burglary took place he was at his home with his wife. His wife gave evidence that the appellant was at home when the alleged burglary took place.

Did the Turnbull guidelines apply in the circumstances of this case?

[6] In R v Turnbull [1977] 63 Criminal Appeal R.132, the English Court of Appeal enunciated guidelines to assess the quality of disputed visual identification evidence by removing the dangers of mistaken identification or recognizance. The guidelines are found at p137 of the judgment:

"First, whenever the case against an accused depends wholly or substantially on one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms, the judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as, for example, by passing traffic or a press of people? Had the witness seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent observation to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?... Finally he should remind the jury of any specific weakness which had appeared in the identification evidence.

Recognition may be more reliable than identification of a stranger but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made."

[7] The Turnbull guidelines have been accepted as the law in Fiji (Semisi Wainiqolo v The State unreported Criminal Appeal. No. AAUU0027 of 2006; 24 November 2006 at [9], Mesake Sinu v The State unreported Criminal Appeal No. AAU0037 of 2009; 13 March 2013) at [21]).

[8] The reasons the learned trial Magistrate did not apply the Turnbull guidelines to Cakacaka's evidence are contained at paragraph 14 of her judgment:

"There is no issue of identification as raised by the accused. He was positively and directly identified by the third prosecution witness, Jeremaia Cakacaka who was a watchman for 9–10 years at the old Kadavu House. This witness stated that he saw two men and recognized the accused to be one of them. This witness stated that they had bags with them. This witness stated that he was one metre away from the accused at the time the accused was making his exit from the old Kadavu House. This witness stated that he has known the accused for more than 10 years from the streets and the prison. This witness stated that he knows the accused's nickname as Toa. The Turnbull guidelines are not appropriate here as this was not fleeting glance identification. It was that of recognition of the accused by the third prosecution witness. The accused in his own evidence stated that his nickname is Toanivala".

[9] Clearly, the learned trial Magistrate misdirected herself when she said the Turnbull guidelines are not appropriate here as this was not fleeting glance case but was of recognition. The Turnbull guidelines equally apply to cases of disputed recognition as was the case here. In R v Thomas [1994] Crim. LR 120, the English Court of Appeal held that where there has been some form of recognition, the risk that needs to be assessed is whether the witness is mistaken in his or her purported recognition of the accused. That risk is assessed by taking into account the Turnbull guidelines against the circumstances in which the sighting occurred (Wainiqolo, supra at [18]). The question is whether this Court should apply the proviso pursuant to section 23 (1) of the Court of Appeal Act. The proviso states:

"Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal against conviction or against acquittal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has occurred."

[10] The test for the application of the proviso is whether there was evidence before the trial court on which a reasonable minded jury would have returned with the same verdict if they had received the requisite directions in accordance with the Turnbull guidelines (Freemantle v Reginam [1995] 1 Cr. App. R). In the present case, the witness knew the appellant by his nickname and he had known him for a decade. The witness had a conversation with the appellant when he inquired from him regarding his reasons for being inside the premises before allowing him to leave. Mr. Burney submits that if the trial Magistrate had accepted that Cakacaka had a conversation with the appellant (which she did) then the risk of mistaken recognizance ceases. Mr. Burney cites Freemantle (supra) where the Privy Council found that a brief exchange of words between the witness and the offender to be a most significant feature of the recognition of the offender which considerably enhanced the quality of the evidence.

[11] I accept the State's submissions. The conversation that the witness had with the appellant virtually took away any risks associated with mistaken recognizance. The evidence of visual recognizance was qualitatively good to a degree due the conversation that the witness had with the appellant, which justifies the application of the proviso. For these reasons, I would dismiss the appeal against conviction.

Sentence appeal
[12] Counsel for the State in fairness to the appellant who is unrepresented has brought to the attention of this Court certain errors in the sentence. Initially, the appellant had also appealed against his sentence. However at the leave hearing the appellant elected to proceed with his conviction appeal only. When the errors highlighted by the State were explained to the appellant, he elected to proceed with his appeal against sentence as well. We grant appellant leave to appeal against sentence.

[13] The first error in the sentence relates to the non-parole period that the learned Magistrate fixed in this case. After imposing a total sentence of 3 years' imprisonment the learned Magistrate ordered that the appellant serve 2 years and 9 months before being eligible for parole. The fixing of a non-parole period is provided by section 18 of the Sentencing and Penalties Decree. Section 18 states:

"(1) Subject to subsection (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole.

(2) If a court considers that the nature of the offence, or the past history of the offender, make the fixing of a non-parole period inappropriate, the court may decline to fix a non-parole period under subsection (1).

(3) If a court sentences an offender to be imprisoned for a term of less than 2 years but not less than one year, the court may fix a period during which the offender is not eligible to be released on parole.

(4) Any non-parole period fixed under this section must be at least 6 months less than the term of the sentence.

(5) If a court sentences an offender to be imprisoned in respect of more than one offence, any non-parole period fixed under this section must be in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences imposed."

[14] Subsection (1) has to be read subject to subsection (2). The effect of these two provisions is that an offender who is imprisoned for 2 years or more must be subject of a non-parole period unless due to the nature of the offence, or the past history of the offender, fixing a non-parole period is inappropriate. In other words, fixing of a non-parole period for a term of 2 years or more is mandatory unless for the limited reasons provided by subsection (2) the court declines to fix one. It therefore follows that when the court fixes a non-parole period under subsection (1), the court is not required to give reasons for its decision because the provision is mandatory. However, if the court declines to fix a non-parole period then the court must give reasons for exercising the discretion under subsection (2).

[15] Subsection (3) deals with sentences that are less than 2 years but not less than 1 year. When an offender is sentenced to a term of 1 year or more but less than 2 years, then the court has discretion to fix a non-parole period. The exercise of the discretion under subsection (3) must be supported by reasons.

[16] Subsection (4) places a limit on fixing of any non-parole period under subsections (1) and (3). Any non-parole period must be at least 6 months less than the term of the sentence. In the present case, the learned Magistrate fixed a term of 2 years and 9 months on a sentence of 3 years in contravention of subsection (4). Subsection (4) restricted the imposition of a non-period period of more than 2½ years. The term of 2 years and 9 months is therefore unlawful.

[17] The second error in the sentence is that the learned Magistrate failed to make any allowance for the period the appellant was in custody from 23 April 2012 to 27 June 2012. Section 24(1) of the Sentencing and Penalties Decree is very clear. The sentencing court must make allowance for the remand period in sentence.

[18] The third error in the sentence arises from the consecutive order that the learned Magistrate imposed on the offences that were part of a single transaction and based on the same facts. In Wong Kam Hong v The State unreported Criminal Appeal No. CAV0002 of 2003S; 23 October 2003, the Supreme Court endorsed the following principle at p6:

"The "one-transaction rule" can be stated simply. Where two or more offences are committed in the course of a "single transaction", all sentences in respect of these offences should, as a general rule, be concurrent rather than consecutive. The underlying principle is that all the offences taken together constitute a single invasion of the same legally protected interests".

[19] The learned Magistrate gave no reasons for departing from the above principle. The appellant committed the offences of burglary and theft in the course of a single transaction. By not applying the "one transaction rule" the learned Magistrate made an error of law.

[20] These errors in the sentence justify the intervention of this Court. The difficulty that lies is that the appellant has served 2½ years of his sentence (including the remand period).

[21] To do justice in this case, the best option is to set aside the sentences imposed by the Magistrates' Court and impose a sentence of 2½ years' imprisonment on each count to be served concurrently. The new sentence will allow for an early release from prison. There will be no order for a non-parole period because the appellant has virtually served his sentence.

Orders of the Court:

Appeal against convictions dismissed.
Appeal against sentence allowed.
The sentence imposed by the Magistrates' Court is set aside and substituted with a sentence of 2½ years' imprisonment on each count, to be served concurrently effective from 23 October 2012.

............................................
Hon. Mr. Justice W. Calanchini
PRESIDENT

............................................
Hon. Mr. Justice S. Chandra
JUSTICE OF APPEAL

............................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions for State