Livanasiga v State [2015] FJCA 153; AAU0123.2011 (3 December 2015)

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

CRIMINAL APPEAL NO. AAU 0123 of 2011
(High Court Action No. HAC 59 of 2010)

BETWEEN:

1. INOKE LIVANASIGA
2. TEVITA SUGU
Appellants

AND:

THE STATE
Respondent

Coram : Calanchini, P
Lecamwasam, JA
Madigan, JA

Counsel : Appellants in Person
Ms. P. Madanavosa for the Respondent

Date of Hearing : 17 November 2015
Date of Judgment : 3 December 2015

JUDGMENT

Calanchini P

[1] I agree that the appeals against conviction should be dismissed.

Lecamwasam JA

[2] The appellants were convicted after trial in the High Court on two counts of aggravated robbery, one contrary to Section 311(1)(a) and the other contrary to Section 311(1)(b) of the Crimes Decree of 2009, one count of wrongful confinement contrary to Section 286 of the Crimes Decree and on one count of theft of a motor vehicle contrary to Section 291(1) of the Crimes Decree. They were sentenced to 13 years imprisonment with a non-parole period of 11 years.

[3] The facts briefly are as follows:

Prior to 15th February 2010 the two Appellants with three others planned to rob Dee Cees Bus Company. In order to carry out the robbery they wanted to get a motor vehicle to use in carrying out the robbery and to use as a get-away vehicle. The second Appellant had been entrusted with the task of getting a vehicle, for the Appellants to carry out the robbery and eventually use as get-away vehicle. The second Appellant was successful in his endeavour when he took witness Kavitesh Lal's van in the course of which one of the accused tied the hands of the driver Kavitesh Lal, relieved him of his mobile phone and put him in the boot of the van, thereby wrongfully confining him to the boot of the van. Thereafter they all proceeded to Dee Cees Bus Company Head office and took the money that was in a briefcase. The briefcase was in a car that was getting ready to go to the bank to bank the takings from the week-end. Having used a cane knife and causing injuries to the driver of the car they fled from the bus company premises and presumably proceeded to Tevita Seru's house that is the house of witness number 8, where they shared the proceeds. There is evidence to the effect that they were seen driving Kavitesh Lal's vehicle on the day of the incident.

[4] The Appellants appealed against their conviction and sentence and the single Judge granted them leave to appeal their conviction and refused their application for leave to appeal the sentence. The single Judge granted leave, on a single ground of appeal that is on the issue whether the trial Judge erred in law and fact in failing to give accomplice directions on Seru's evidence. Nevertheless the appellants have renewed their grounds of appeal before the full Court.

[5] Grounds of Appeal– Inoke Livanasiga - (verbatim as stated in the petition of appeal):

(i) That the Learned Trial Judge erred in law and fact to direct the assessors that the Black brief case was found in Tevita Seru state in chief premises after seven days.

(ii) That the Learned trial Judge erred in law and fact that the state in Chief Mr Tevita Seru should have been charged on the evidence the black briefcase.

(iii) That the Learned trial Judge erred in law and fact to follow the "rule of law" to state in Chief Mr Tevita Seru evidence.

(iv) That the Learned trial Judge erred in law and fact that the state in chief that the danger inherent in relying on the evidence state in chief without corroboration.

(v) That the learned trial Judge erred in law and fact that the state in chief Mr Tevita Seru was certainly participles criminis.

[6] Grounds of Appeal – Tevita Sugu

(i) That the Learned trial Judge erred in law and in fact when his lordship failed to properly and adequately direct the assessors with full force of all the standard directions and warnings in regards to identifications. This has resulted in a miscarriage of justice in the circumstances of the case and to the appellant.

(ii) That the Learned trial Judge erred in law and in fact when his lordship, misdirected the assessors when he stated "it would appear that the circumstances surrounding the identification of Kavitesh Lal and Tevita Seru were strong and compelling".

(iii) That the Learned trial Judge erred in law and in fact when his lordship did not give the assessors accomplice direction on Tevita seru's evidence. In doing so, I was prejudiced and was denied a fair trial.

(iv) That the Learned trial Judge erred in law in not giving the assessors the proper standard directions on Alibi evidence in the following;

• (a) Where the accused states that he was somewhere else, the burden of proof is on the prosecution to disprove the alibi and not the accused to prove it.
  
• (b) Where a late alibi is set up (i.e. at trial) it is open to the Trial Judge to comment that the prosecution was deprived of the opportunity of investigation and testing the alibi.
  
• (c) Should the assessors conclude that the alibi is false, they should not, for that reason alone convict the accuse.
  

The second accused Appellant has filed an additional ground of appeal by his memorandum dated 22nd October 2015.

(v) That the Learned trial Judge erred in law when he did not identify to himself and the assessors that (PW1) Kavitesh Lal was to be treated as a suspected accomplice and fail to direct the assessors on the law of suspected accomplice evidence that it was dangerous to act upon unless corroborated. This is a miscarriage of justice in the circumstances of the case and to the Appellant.

[7] For convenience now I will deal with all these grounds of appeal together:

Tevita Seru's conduct is no doubt questionable. If he was not involved in any manner what was the reason for the five accused to go to Seru's residence, out of all other places. If Seru's residence was not a 'heavenly place' Appellants would not have brought the briefcase containing the cash there to share. Although Seru says he was horrified and frightened when he saw the huge amount of money, he never informed the police about the incident until the police came in and recovered the briefcase some days later. If he was an honest and law-abiding person he could have informed the police within a reasonable time.

While it is legal to convict upon the uncorroborated evidence of an accomplice it is the rule of practice which has become virtually equivalent to a rule of law, it is regarded as dangerous, to so convict. What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. The corroboration must proceed from an independent source and it must be weighed as to its probative value. It must confirm in some material particular not only that the crime has been committed but also the accused committed it. The corroboration need not extend to the whole story nor need it be direct evidence that the accused committed the crime. It is sufficient if the evidence is merely circumstantial.

[8] Taking all these factors into consideration it is inconceivable to say that Seru was just a bystander. Even if he is considered as an accomplice or accessory that will not assist the Appellants. Though Seru has attempted to conceal his involvement it seems that 'sharing the loot' and leaving the briefcase at Seru's place are things that had actually happened. If not the police would not have recovered the briefcase from Seru's residence. Therefore his evidence should not be disregarded in toto. However, in these circumstances the Judge should have given an accomplice warning in regard to Seru. Seru is the most crucial witness for the prosecution.

[9] It is unsafe and undesirable for the Court to rely upon the identification of an accused in Court for the first time or dock identification. The reason being that the witness may think to himself that the police must have got hold of the right person and it is, so easy for a witness to point to the accused in the dock. However, dock identification is not inadmissible. In this case Kavitesh Lal observed the face of the second appellant for about 15 to 20 minutes and Tevita Seru observed all the accused for 40-50 minutes. Though absence of police identification parade may be a short coming in this case, assessors are at liberty to act on such identification if they are satisfied. Therefore I do not see any miscarriage of justice and the ground of appeal on dock identification should fail.

[10] The second Appellant challenges the identification by Seru and Kavitesh Lal on the basis that they are accomplices. The second Appellant vehemently attacked the summing up of the Learned Judge for the comments he made in regard to identification by Kavitesh Lal as 'strong and compelling'. Learned Judges should refrain, when making comments on the facts of a case, from substituting his own personal views on facts. Strength of evidence on facts is entirely a matter for the assessors.

[11] Accomplice Evidence
The second Appellant raised the above ground of appeal on accomplice evidence and argued that Kavitesh lal was also an accomplice and therefore the learned judge should have given accomplice warning to the assessors and as the Judge has not given an accomplice warning it is fatal to conviction and move this court to acquit.

[12] A conviction is not necessarily wrong merely because it is based on the uncorroborated evidence of an accomplice. It is the duty of the judge to warn the assessors that they should not form an opinion of guilt on the evidence of an accomplice unless corroborated by independent evidence on material particulars.

[13] In this case Seru's evidence is of utmost importance regarding the identity of the Appellants. Even if Seru is treated as an accomplice as regards identity in relation to 2nd Appellant and even the 1st Appellant, Kavitesh Lal's evidence helps the prosecution in identifying the accused. Kavitesh Lal has seen and observed the 2nd Appellant for about 15-20 minutes. Therefore, even if Seru is considered as an accomplice his evidence is corroborated by Kavitesh Lal. Therefore, regarding the Appellant's identity Seru's evidence is corroborated by Kavitesh Lal on all fours. Hence, failure to give an accomplice warning has not caused a miscarriage of justice.

[14] In this case in addition to Tevita Seru (PW8), Kavitesh Lal is also an important witness, in reality is a victim too. Not only Kavitesh Lal has lost his van, he was also subjected to harassment and confinement of the accused. According to the evidence I do not see any reason why he should be treated as an accomplice or a suspected accomplice. I do not see any fault on the part of the Learned High Court Judge for not treating Kavitesh Lal as a suspected accomplice. Therefore, the ground of appeal urged by the second accused Appellant on that basis should fail.

[15] The second accused Appellant has taken up the defence of alibi. There is no burden whatsoever on an accused person who puts forward a plea of alibi and the burden is always on the prosecution to establish beyond reasonable doubt that the accused was not elsewhere, but present at the time of the criminal offence.

[16] An alibi is not an exception to criminal liability and it is nothing more than an evidentiary fact, which like other facts relied on by an accused, must be weighed in the scale against the case for the prosecution. The Learned High Court Judge had dealt with the issue of alibi only in three lines in a very perfunctory and cursory manner.

[17] It is manifestly clear that the Learned Judge has not adequately dealt with the issue of alibi in his summing up. Although the Learned Judge did not deal with the alibi adequately study of the evidence shows that no miscarriage of Justice resulted thereby. In regard to the case against the second Appellant there was ample evidence before the assessors which, is believed justified the verdict they returned. I therefore hold the conviction of the second accused is justified and I dismiss his appeal.

In view of the above reasoning, all the grounds of appeal should fail hence the appeals should be dismissed.

Madigan JA

[18] I have seen a draft of Lecamwasam J's judgment and for the reasons he states therein, I would dismiss the appeal.

[19] Dock identification is a very vexing issue and whilst it is not necessarily fatal to a conviction, the finders of fact must be properly directed as to what weight to put on it in the circumstances.

[20] This Court discussed the matter fully in Peni Lotawa AAU 0091 of 2011 where it was said (para 17)

"Dock identification is completely unreliable in the absence of a prior foundation of identity parade or photograph identity because it then becomes the ultimate leading question".

[21] The Court went on to cite with approval the opinions of the Privy Council in Holland v HM Advocate (Times, 1st June '05) where it was held that such identification was not per se incompatible with a fair trial but other factors must too be considered such as whether the accused was legally represented, what directions the Judge gave to the finders of fact on this identification and how strong the prosecution case was in all other respects.

[22] In the instant case, there was a very strong foundation to the identification. The two witnesses identifying the accused persons had them under observation at close range for 20 to 30 minutes. It was not a case of a fleeting glance being validated by dock identification.

The Orders of the Court are:

1. Appeals dismissed.
2. Convictions affirmed.
   

Hon. Mr. Justice W. Calanchini
PRESIDENT, COURT OF APPEAL

Hon. Mr. Justice S. Lecamwasam
JUSTICE OF APPEAL

Hon. Mr. Justice P. Madigan
JUSTICE OF APPEAL

Solicitors:
Appellants in Person
Office of the Director of Public Prosecutions for Respondent.