Savu v State [2014] FJCA 222; AAU0090.2012 (26 February 2014)

IN THE COURT OF APPEAL, FIJI
[ON APPEAL FROM THE HIGH COURT]

CRIMINAL APPEAL NO: AAU 0090 OF 2012
(High Court Case No: HAC 140 of 2012)
(Magistrates' Court Case No: 575/2012)

BETWEEN:

RUSIATE SAVU
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Appellant in Person
Mr. L. Fotofili for the Respondent

Date of Hearing : 21 February 2014
Date of Ruling : 26 February 2014

RULING

[1] The appellant seeks leave to appeal against a judgment of conviction pronounced by the Magistrates' Court under extended jurisdiction. The appellant had also appealed against sentence, but at the hearing, the appeal against sentence was abandoned.

[2] The appellant after a trial was convicted of aggravated burglary and theft. The prosecution case was based on circumstantial evidence against the appellant. The prosecution led evidence of a CCTV footage of the alleged burglary. The footage showed two men entered the premises that were burgled on 31 March 2012 at 5.48 pm. The same men left the premises at 1 April 2012 at 4.45 am. The men could only be identified by the clothes they were wearing. The prosecution case was that one of the men was the appellant although he could not be positively identified in the footage because it was taken from a long distance. The only incriminating evidence against the appellant was that the security officer at the premises, Jeremaia Cakacaka recognized the appellant and spoke to him when he was leaving the premises. Cakacaka said on the early hours of 1 April 2012, he came across the appellant within the premises that was burgled. Cakacaka saw the appellant was holding a bag. He told the appellant to leave the premises and even opened the gate for him. Cakacaka said he knew the appellant from the streets and prison. Cakacaka said he himself was a thief but was reformed. Under cross examination Cakacaka said he had known the appellant for 10 years. Apart from Cakacaka's testimony there was no other incriminatory evidence against the appellant.

[3] The appellant relied on alibi as his defence and called his wife to give evidence.

[4] The appellant advances several grounds of appeal against conviction. His first contention is that he cannot be convicted solely on circumstantial evidence. It is clear that the appellant's contention is misconceived. Circumstantial evidence is as good as direct evidence and an accused can be convicted solely on circumstantial evidence. This ground is not arguable.

[5] The appellant's second contention is that there was no direct evidence that he was the burglar. While I accept that there was no direct evidence, the prosecution relied upon circumstantial evidence that placed the appellant at the alleged crime scene at the relevant date and time. This ground is no arguable.

[6] The appellant's third contention that the learned Magistrate failed to direct herself on burden and standard of proof has no merit because in her judgment the learned Magistrate clearly directed herself that the prosecution carried the burden of proof and they must do so beyond reasonable doubt.

[7] The appellant's fourth contention is that the CCTV footage was inadmissible. The CCTV footage was relevant evidence and there is no law in Fiji preventing its admissibility in evidence. This ground is not arguable.

[8] The remaining contentions of the appellant deal with Cakacaka's identification evidence. The appellant submits the learned magistrate erred in law in directing herself that the Turnbull guidelines did not apply to Cakacaka's evidence because his evidence was of recognition and not of a fleeting glance. The learned Magistrate said at photograph 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] Although the appellant raised identification as an issue, the learned Magistrate quite properly pointed out that this was not a case of fleeting glance. The learned Magistrate said this was a case of recognition. When recognition is challenged, the Turnbull guidelines require the jury be reminded that although recognition may be more reliable than identification, mistakes in recognition of close relatives and friends can still be made. In so far as the learned Magistrate's direction that the Turnbull guidelines were not appropriate in a case of recognition is concerned, the direction is arguably a misdirection in law. Whether the Turnbull directions should have been given on the facts of this case, of course, is a question of mixed law and fact. Leave is granted on this issue only.

Hon. Justice D. Goundar
JUSTICE OF APPEAL