Vakanawakoro v State [2014] FJCA 211; AAU0114.2011 (5 December 2014)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU0114 OF 2011
[High Court Criminal Case No. 179/10]

BETWEEN:

JOSEVA VAKANAWAKORO
Appellant

AND:

THE STATE
Respondent

CORAM : Calanchini P
Guneratne 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 agree with his proposed orders.

Guneratne JA:

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

Goundar JA:

[1] Following a trial in the High Court at Suva, the appellant was convicted of one count each of aggravated robbery and theft of a motor vehicle. On 27 October 2011, he was sentenced to a total term of 14 years' imprisonment with a non-parole period of 11 years.

[2] The appellant filed a timely appeal against his convictions under section 21(1) of the Court of Appeal Act. On 5 December 2013, he was granted leave to appeal against his convictions on the ground that the learned trial judge erred in law and fact in failing to give Turnbull directions on the visual identification evidence led at the trial. On 18 February 2014, the appellant renewed his application for leave on two new grounds, namely, that the learned trial judge erred in failing to direct on the uncorroborated evidence of a single identification witness and that the inconsistencies in the evidence gave rise to a reasonable doubt as to his guilt.

[3] In his written submissions that were filed on 25 July 2014, the appellant raises five additional complaints against his convictions. The complaints are:

(i) The police misled him during his interview as to the time of the robbery.

(ii) The police failed to check his alibi.

(iii) The prosecution failed to call two relevant witnesses.

(iv) The identification parade was unfair.

(v) The State entered a nolle prosequi in an unrelated case because a witness claimed he was forced by the police to make a statement implicating the appellant.

Evidence led at the trial

[4] In his written submissions, counsel for the State has succinctly summarized the evidence that was led at the trial. I adopt that summary in this judgment.

[5] In her evidence in chief, Ms Sulueti Raluve described two Fijian boys coming into her workplace and robbing her Managing Director, Mr. Krishneel Nand. She said the one who claimed to be from the LTA Office was wearing a bula shirt, white pants and black shoes and that he looked good in his haircut which was short and neat. She said he was fair and tall and looked like 28 years of age. Her evidence was that the other one who claimed to be a police officer was wearing black flip-flops, black pants, white tee-shirt, sunglasses and she guessed he was about 30 years of age. He was short and dark. She said they could be easily identified and that she saw them from a distance of 95cm in good lighting conditions. She said it was broad daylight and she had a clear look of both men. She was with them for about 3 minutes. She confirmed that she attended an identification parade on 3 September 2010 and picked out the man who had impersonated a police officer. She then pointed out the appellant in court. She said she had seen this person in her boss's office about 5 steps from where she stood and saw him again as he left the workplace in Mr. Nand's vehicle as she was standing outside.

[6] The appellant cross-examined Ms Sulueti Raluve in relation to the description she had given to the police in the statement she made 20 minutes after the robbery. He highlighted a number of issues such as the fact that the witness did not describe the robber as having a beard in her police statement. Also she had described him as being short whereas the appellant was 5'11 tall and had a beard at trial. Ms Sulueti said that she had subsequently told the police that the robber had a beard and the police told her he still had a beard.

[7] A second eye witness, Ms Maria Adicagi, gave evidence that she had attended the identification parade on 3 September 2010 and had failed to identify anyone. She explained that she had been really scared and could not remember anything.

[8] The State called 3 witnesses to rebut the appellant's alibi that he was helping dismantle a funeral shed at the time of the robbery. Under cross-examination, all 3 stated that they could not recall whether he had helped to dismantle the funeral shed at the material time, although they each confirmed his presence at the funeral.

[9] Detective Sergeant Virendra Deo gave evidence that he was present at the identification parade, explained the procedure and confirmed that Ms Sulueti Raluve had identified the appellant. He was cross-examined about the alleged irregularities in the conduct of the parade.

[10] The appellant gave evidence that he was not involved in the robbery. He stated that he had been arrested on 31 August 2010, questioned about a robbery and had, at that time, informed the police that he had been at a funeral gathering on 26 August 2010 and later in the afternoon at rugby training. He said he was interviewed by the police and had volunteered to stand on the identification parade as he was telling the truth. He said that none of the other 9 men on the parade had his build and only 2 had beards. He was pleased after the parade because he was not aware that he had been identified and that is why he did not raise any issue about the conduct of the parade in his Record of Interview.

[11] The appellant called Etuate Ratu who confirmed that the appellant was dismantling a funeral shed with him at the material time. Etuate Ratu stated that he had given this information to the police after the robbery. In cross-examination, he rejected the State counsel's suggestion that he was trying to help out the appellant. The appellant also called Uate Camaitoga who confirmed that the appellant had been dismantling a funeral shed at the material time.

Visual identification
[12] The crux of this appeal relates to the lack of directions on the visual identification evidence of witness, Sulueti Raluve. It is not in dispute that the appellant was convicted solely on the basis of Ms Raluve's identification evidence.

[13] It is settled law in Fiji that the reliability of any disputed visual identification evidence must be assessed using the guidelines enunciated in the English case of R v Turnbull [1977] 63 Criminal Appeal No. 132 (Semisi Wainiqolo v The State, unreported Criminal Appeal No. AAU0027 of 2006; 24 November 2006). The Turnbull guidelines deal with the directions that the trial judge must give to a jury whenever the case against an accused depends wholly or substantially on disputed visual identification evidence. It is not necessary to set out the guidelines in detail. In Wainiqolo (supra) at paragraph 9, the Court has outlined the Turnbull guidelines in detail. In summary, the first limb of the guidelines require the trial judge to warn the jury of the special need for caution before relying on disputed visual identification evidence to convict the accused. The second limb requires the trial judge to direct the jury to examine closely the circumstances in which the visual identification was made by the witness or witnesses. The final limb requires the trial judge to point out to the jury any specific weakness in the visual identification evidence.

[14] In his summing up, the learned trial judge summarized Ms Raluve's evidence, but gave no directions in accordance with the Turnbull guidelines. The assessors were not given any assistance as to how they should assess the reliability of Ms Raluve's evidence and the learned trial judge gave no reasons for not giving the Turnbull directions.

[15] Counsel for the State in fairness to the appellant submits that the failure to give Turnbull directions is fatal to the appellant's convictions. Mr. Burney cites the English authorities to support his concession. In Scott v R (1989) 89 Cr. App. R. 153, the Privy Council held that a conviction based on uncorroborated evidence should be sustained in absence of a warning of the danger of a mistaken identification only in most exceptional circumstances. Similarly, in Reid v R [1990] 1 AC 363, the Privy Council held that a significant failure to follow the guidelines laid down in R v Turnbull will cause the conviction to be quashed because it will have resulted in a miscarriage of justice.

[16] Ms Raluve's identification evidence no doubt had weaknesses. Although the identification was made in broad daylight, her initial description of the appellant did not match the physical description of the appellant when she subsequently identified him in the police identification parade. Ms Raluve told the trial court that before she attended the identification parade the police told her that the suspect had a beard. Among the nine men who stood in the identification parade only two had beards. The appellant was one of them. There was a possibility that the identification of the appellant at the parade was suggestive. Ms Raluve offered no explanation to the inconsistency in her initial description of the appellant as a short and dark man and her subsequent identification of the appellant with a beard and 5' 11 tall. These matters made Ms Raluve's identification evidence weak.

[17] The inherent weaknesses in the visual identification evidence and the trial judge's failure to give Turnbull directions to deal with those weaknesses have led me to conclude that there has been a miscarriage of justice, and the State's concession that the convictions cannot be sustained is fair. Mr. Burney further informed the Court that if the convictions are quashed, the State does not seek a re-trial. After taking all these matters into account, I would allow the appeal and make an order quashing the appellant's convictions. I would not make an order for a re-trial. It is not necessary to deal with the other complaints.

Orders of the Court:
Appeal against convictions allowed.
The appellant's convictions are quashed.

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

............................................
Hon. Mr. Justice Almeida Guneratne
JUSTICE OF APPEAL

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

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