Uluicicia v State [2022] FJCA 35; AAU166.2017 (4 March 2022)

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

CRIMINAL APPEAL NO. AAU 166 of 2017

[In the High Court at Suva Case No. HAC 298 of 2016]

BETWEEN:
MOSESE ULUICICIA

Appellant

AND:
STATE

Respondent

Coram: Gamalath, JA
: Prematilaka, JA
: Bandara, JA

Counsel: Appellant in person

: Ms. P. Madanavosa for the Respondent

Date of Hearing: 23 February 2022

Date of Judgment: 04 March 2022

JUDGMENT

Gamalath, JA

[1] I agree with the conclusion arrived at by Bandara, JA.

Prematilaka, JA

[2] I agree with Bandara, JA that the appeal should be dismissed.

Bandara, JA

[3] The Appellant was charged with one count of aggravated robbery contrary to section 311 (1) (a) of the Crimes Act, 2009. Following trial in the High Court at Suva the Appellant was convicted as charged.

[4] The assessors returned a unanimous opinion that the Appellant was guilty of the said offence, and the Trial Judge concurred with their opinion.

[5] On 9^th November 2017 the Appellant was sentenced to a total period of 10 years and 9 months imprisonment, with a non-parole period of 8 years and 9 months.

[6] The Appellant filed a timely appeal before this court, setting out four grounds of appeal against the conviction and three grounds of appeal against the sentence.

[7] Single judge of appeal by his ruling dated 14^th June 2019 granted leave to appeal only on the first ground against the conviction.

[8] The Appellant by his written submissions dated 19^th October 2020 had urged the full court, to consider the four grounds of appeal against the conviction of which leave was refused by the single judge of appeal. In his written submissions, the Appellant addresses the said four grounds along with the ground on which leave was granted. The State has responded to the same. He has not renewed any of the grounds of appeal against sentence; nor did he make any oral submission on sentence either. The State also therefore has not dealt with the matter of sentence in its written submission.

[9] Accordingly the five grounds of appeal against the conviction which were advanced before us are as follows:

“Against Conviction:

1. The learned trial Judge erred in law and in fact in not analyzing deeper each of the prosecution witness statement as it was tendered after the allegation, while it was still fresh in their minds;
2. The learned trial judge also ignored and mis-considered the evidence of finger prints given by the PW 12 and PW13 and the last PW14 Mosese Rokobera. It appears to be a work of Police fabrication against the appellant;
   
3. That further the learned trial judge erred in law and in fact in sharing assessors facts of how to refuse appellants evidence of alibi before the judgment of this trial;
   
4. That the learned trial judge was swayed and biased when failing to put weight or consider the evidence of the defence witnesses and appellants which was given under oath;
   
5. That further in the judgment of the matter, the learned trial judge did not highlight or explained in court during its ruling why he refused the defence witnesses testimony of the appellant’s alibi.”
   

[10] Section 23 (1) (a) of the Court of Appeals Act 1949, provides that the Court may allow the appeal if it thinks that the verdict should be set aside because it:

(i) Is Unreasonable
(ii) Cannot be supported having regard to the evidence
(iii) Was grounded on a wrong decision of any question of law
(iv) Miscarriage of justice had occurred

[11] Section 23 (2) adds the provision that where the Court concludes that a point raised in the appeal might be decided in favour of the appellant, the Court may nevertheless dismiss the appeal if they consider that no substantial miscarriage of justice has occurred.

Summary of evidence

[12] An accurate summary of the evidence is reflected at paragraphs 25-38 of the Trial Judge’s summing up which is as follows:

“25. First witness for the prosecution was Jan Mohammed Sakur. His evidence was that;

1. He is the managing director of Sakura Cars and Motor Parts Traders Ltd. and he resided at Lot 37 Toganivalu Road, Samabula. On 05/08/16 he was alone at his house and his wife Nasira Mohammed was due to return from Canada on the following morning. He went to bed around 9.30pm that day. Around 2am on the following morning he was awaken by two Fijian youths whose faces were covered. The two Fijian youths told him to keep quiet, punched him a few times and tied his hands at the back. They took his Apple iPhone, switched it on and showed him a $5 note and asked him where the money is. He told them to check his trouser pocket. Thereafter again they came to him, showed a piece of gold and asked him where the gold is and he told them to check the next room. He saw them walking around the house with torch light ransacking each room till about 5.30am.
   
2. Later on when the police came an ambulance was arranged to take him to the hospital. The following items were stolen on that day; $150 FJD and $50 AUD, 1 x Apple iPhone valued at $2,000, 1 x Samsung Galaxy 5 valued at $2,000, assorted jewelries valued at $10,000 and 1 x Black Honda CRV registration number FH 787 valued at $35,000.00. The total value of the items stolen is $49,150. The two Fijian youths took his phone and asked for the password and punched him. He told them that the password which was his date of birth is 201236. He is the only person who knew the password to his phone. On 09/08/16 the police showed him an Apple iPhone and he identified that phone because it was unlocked when he pressed the password.
   

100. He had that phone for approximately 18 months. He identified the phone shown to him in court as the one that was stolen. He entered the password in court and he showed that the phone was unlocked. He also pointed out that there is a message in the phone from his daughter that the mother is coming on Saturday. This phone was tendered as PE 2.
     

4. During cross examination he agreed that he did not mention about the password in his phone in his first statement given to police. He also agreed that he told the police about the password when the police officers brought the phone to him on the 9th August.
   

26. Next witness was Nasira Bibi Mohammed. She said;
    
    1. She is the wife of the first prosecution witness. They live in the two-storey house at Lot 37 Toganivalu Road for more than 20 years. On 06/08/16 which was a Saturday, she arrived from Canada at about 5am and reached home around 8am. She did not enter the house because the vehicle driven by her husband, registration No. FH 787 was not there. She then went to their shop at Samabula. When she asked the boys at the shop, about her husband she was told that the husband was supposed to go with one of the drivers to pick her up. Then they started looking for him. She came home with Abdul Rasheed. Her neighbour told her that the backdoor in the house is open. Then that lady’s son climbed over the fence and opened the gate. They entered the house from the back door which was opened. When she went to their bedroom she saw her husband lying down with his hands tied at the back. She called the police and the ambulance. She said all the rooms were in a mess, everything was on the floor and all drawers were opened. Her jewelry bag was also missing. She said the value of the jewelries which included gold bangles and diamond rings was more than $10,000.00.
       
27. The third prosecution witness was Rigieta Benilili. She said;
    
    1. When she came to off the light in the garage around 6am on 06/08/16 she noticed that the door of her neighbour’s house was open. Her neighbour was Mr. Sakura. Thereafter Mrs. Sakura came to her and asked about Mr. Sakura Mohammed. She informed Mrs. Sakura that the back door is open and then she saw that there is a ladder that was leaning onto the wall where the kitchen window is. The kitchen window was also open. Her son climbed over and opened the gate. They went inside the house through the back door. She entered the sitting room and saw that everything was in a mess. She saw Mr. Mohammed lying down on the floor and she informed Mrs. Sakura. She said between midnight and 6am in the morning she heard the sound of the electronic gate opening. She heard this sound in the morning but it was still dark.
       
28. The fourth prosecution witness was Mr. Mohammed Rasheed. He said;
    
    1. In August 2016 he was employed under the first prosecution witness. On 06/08/16 he went inside the first witness’s house with the second prosecution witness, the Fijian lady who is staying beside that house and her son. They saw an aluminum ladder leaned on the wall near the kitchen window. He said he saw the first prosecution witness lying on the floor with the hands tied at the back.
       
29. The fifth witness was Iferemi Suguturaga. He said;
    
    1. In August 2016 he was working at a Bakery and was also working part-time at the Sand Dunes nightclub as a bouncer. On 07/08/16 around 1.00am when he took a break while he was working at the nightclub ‘Lui’ gave him a phone. When he was asked who Lui is, he pointed at the accused. He said he knows Lui because they used to stay together at Raiwai. They have been neighbours for about 15 years.
       
    2. When Lui approached him that morning he was able to see Lui clearly. Lui showed him the phone and told him that he had no money. It was a sliver phone. He then took that phone to Signals nightclub which was about 3 metres away so that he can sell the phone to the bar-tender, Tulia. Tulia did not want to buy the phone for the price quoted by Lui initially which was $200.00.
       
    100. He then went outside and told Lui about Tulia’s response. Then he was told by Lui to sell the prone for $160. He again took the phone inside to Tulia and told her that the phone is $160. Then she took the phone and gave him the cash. He came out and gave the $160 to Lui. He saw some boys standing beside Lui. When he gave the phone to Tulia she asked the password for the phone as the phone was locked. Though Lui showed him the password when he was outside he forgot it when Tulia asked for the password. Then he went back and asked Lui again. Lui pressed the password on his phone which was 201236. He then went inside and showed the password to Tulia.
         
    4. He said when Lui came to him with the iPhone one Saimoni Junior who was also a bouncer in the Sand Dunes nightclub was present. He identified PE 2 as the iPhone given to him by Lui on 07/08/16.
       
    5. He pointed at the accused as the person he was referring to as Lui.
       
    6. During cross examination he said he does not know any other name of the person he referred to as Lui. He said the other bouncer Saimoni Junior is called by the name ‘Junior’. He said he only mentioned the name Lui to the police and he did not say that Lui’s name is Mosese Uluicicia. When it was pointed out that it is written in his statement made to the police that his colleague ‘Joe’ saw him giving the phone, he said police had mistakenly written that and ‘Joe’ is supposed to be ‘Junior’. When it was pointed out that it is stated in his statement made to the police that he saw Lui at the top bar around 1am he said it was outside. He said the content the police had put in his statement is wrong. When it was pointed out that he had told the police that Lui gave him $20 he said Lui did not give him any money. He denied that he told Tulia that the phone belongs to him. He denied the suggestion that he implicated the accused to save himself when the police questioned him about the iPhone.
       
30. The sixth prosecution witness was Saimoni Kalidredre Heamasi. He said;
    
    1. On 06/08/16 he was working as a bouncer at the Sand Dunes nightclub top bar. His shift started at 6 o’clock and finished at 4.30am. He said Iferemi Suguturaga was also on duty at the top bar with him. Around 1am he saw Lui approached Iferemi. He knew Lui because Lui always come and drink at Sand Dunes. When Lui approached Iferemi he was beside Iferemi and nothing was blocking his view. He said Lui and Iferemi were talking to each other and he saw Lui giving Iferemi a phone. He said it was grey at the back and the front is black and it was an iPhone. After the phone was given to Iferemi they both left. He recognized PE 2 as the same iPhone he saw Lui gave Iferemi that morning. He said he had not spoken to Lui but he knows Lui because they had troubles in the club. He said he can recognise Lui very well. He pointed at the accused as the person he referred to as Lui.
       
    2. During cross examination when he was asked how can he say he knows Lui if he had never spoken to Lui, he said he knows Lui because one day there was a fight with Lui and after few weeks Lui came to him and apologised. He said his colleagues at work call him ‘Junior’. He agreed that he did not tell the police when his statement was recorded that he is also known as Junior. He agreed that he told the police that the mobile phone he saw was a black iPhone.
       
31. The seventh prosecution witness was Tulia Raluve. She said;
    
    1. On 06/08/16 she was working as a bartender at Signals Nightclub. Around 1am on 07/08/16 an iTaukei man asked her if she can buy his phone for $200. This was a grey colour phone. When she asked whose phone is it, he said that it was his. She said she thinks that the name of this iTaukei man is Filimoni. She did not want to buy it for $200. He then went and came back around 2am. He asked her how much money she can give for the phone and she said she got $160. According to her the iTaukei man told her that his father is really sick and therefore he needs the money. The iTaukei man gave her the phone, the password and the charger for $160. Thereafter he came back to her again to change a $20 note.
       
    2. She had this phone for nearly one week. After that, police from the Samabula Police Station came to her house looking for the iPhone. They took the iPhone from her. She told the police that she got the phone from one bouncer in Sand Dunes Nightclub. She identified the phone she referred to as PE 2.
       
    100. During cross examination she agreed that the iTaukei man told her that he will put down the price of the phone to $170 and that she told that to the police.
         
32. The eighth prosecution witness was police officer, Mahendra Narayan. He said;
    
    1. He is based at Valelevu Police Station in the Traffic Section. On 06/08/16 he reported for work at 10.50pm. Around 4.30am the following morning a taxi driver informed about a vehicle that was parked near Food Town Supermarket at Valelevu. He went with another officer to check the vehicle. The registration number of the vehicle was FH 787. The key was in the ignition. They waited for about 45 minutes looking for the driver and thereafter that vehicle was brought to the Valelevu Police Station. Thereafter upon receiving information that the said vehicle was stolen from Samabula area he informed the Samabula Police Station regarding the vehicle and thereafter it was handed over to a police officer from the Samabula Police station.
       
33. The ninth prosecution witness was the doctor who examined the first prosecution witness. He said;
    
    1. He examined the first prosecution witness on 06/08/16. He tendered the medical report as PE 3. He said he observed abrasion/bruising on both wrists and lips and bruising at the back.
       
34. The tenth prosecution witness was DC 4643 Vilikesa Baledroma. He said;
    
    1. He is stationed at the Samabula Police station for the past seven years. On 06/08/16 he was instructed by his Crime Officer to investigate this case. As part of the investigation he obtained a search warrant to track the IMEI number of the complainant’s phone that was stolen. They received information that a new sim card had been inserted to that stolen phone and the owner of that sim card is Penisoni Bogidua.
       
    2. Thereafter they located Penisoni Bogidua and inquired about the phone. They were informed that his number was used by his wife, Tulia Raluve. Then Tulia Raluve was questioned about the mobile phone and the mobile phone was taken from her. They were informed by Tulia Raluve that she bought the phone from an unknown person in the nightclub. He said he handed over the mobile phone to the crime writer at the Samabula Police Station. He identified PE 2 as the phone he recovered from Tulia.
       
35. The eleventh prosecution witness was Detective Corporal 3400 Abdul Khan. He said;
    
    1. He is currently based at the Samabula Police Station. He said he recorded the statement of Iferemi Suguturaga. He said Iferemi was given the statement to read before it was signed. He also said he went to the Valelevu Police Station upon receiving information about the vehicle. He arranged the vehicle to be taken from Valelevu Police Station to the Samabula Police Station.
       
    2. During cross examination he said Iferemi Suguturaga’s statement was recorded in English. He said Iferemi was first interviewed under caution and after the interview all that was put into the written statement. He denied fabricating the statement of Iferemi.
       
36. The twelfth prosecution witness was Detective Sergeant 4485 Viliame Naupoto. He said;
    
    1. He is based at the Police Crime Scene Unit. He said he had undergone in-house training and also has been trained by Interpol as a crime scene officer. On 06/08/16 he received instructions around 10.58am requesting him to attend a case at Lot 37 Toganivalu Road. When he arrived at the scene he was briefed by DC Munilesh and was escorted to the alleged point of entry. He noticed that the inner window had been removed and placed along a wooden counter at the kitchen. He said he obtained two sets of finger prints that were on the tiles directly beneath the push-out window. The said finger prints were then labeled and packed in a brown envelope. He said he made a note of the address and a basic description of where the prints were taken from when labeling them. He initialed both. The two finger prints he obtained were tendered as PE 4 and PE 5. He identified the envelope which the finger prints were put in and it was tendered as PE 6. He said he handed over the finger prints to the officer-in-charge along with a brief crime scene report he prepared when he went back to the office.
       
    2. During cross examination he said according to their procedure they only take photographs of the prints when the prints are on rough surfaces where they cannot be uplifted using the finger print lifters. When it was suggested that the finger prints were not uplifted from Lot 37 Toganivalu Road but when the accused was held in custody, he said those are the prints that he uplifted from the scene.
       
37. The thirteenth prosecution witness was Police Constable 4149 Kalivati. He said;
    
    1. He is stationed at the Samabula Police Station. On 11/08/16 he obtained the finger prints from the accused inside the crime office. He tendered the finger print form as PE 7. He confirmed taking the prints that are printed in PE 7. He said he wrote ‘Lui’ in part C of that form as the alias of the accused based on the information provided by the accused. He handed over PE 7 to Constable Vilikesa.
       
38. The final prosecution witness was Mosese Rokobera. He said;
    
    1. He served in the Fiji Police Force for 36 years and retired last month. He said he had served in the Fiji Police Forensic Services for 32 years and retired as the Director of the Forensic Services. He had undergone extensive training in crime scene examination and finger prints analysis. He gave an account of the training he had undergone overseas. He said he had dealt with more than 2,000 cases of finger print comparison during his service. He explained the process of comparing finger prints. He said he conducted the analysis of the finger prints in this case on 13/10/16.
       
    2. He said he examined the two prints PE 4 and PE 5 and compared with PE 7. He used the right index finger which he had marked with the box in PE 7 and prepared a chart for the purpose of explaining in court. He tendered the finger print chart he prepared as PE 8. On PE 8, he had marked twelve identification characteristics which he found to be in true relative position and coincidence sequence. He explained that coincidence sequence means that the characteristics should be in the same position with the one that is compared with. He also tendered PE 9 where he had recorded the explanations. He said the presence of the twelve characteristics he had identified confirms that finger print from the crime scene and the finger print in the finger print form are from the same person and that is the accused in this case.
       
    100. He said once the finger prints are brought to his office they will be locked inside the locker in his office, and only he has the key for the locker. He said that it has been established for the last 100 years that two persons have not been found to have the same finger print.
         
    4. During cross examination he admitted that he spoke to Viliame Naupoto who gave evidence before him, during the lunch break. He denied the suggestion that he discussed regarding the evidence Mr. Naupoto gave in court during this conversation. When it was suggested that he cannot confirm that Mr. Viliame Naupoto actually went to the scene of crime and uplifted the prints, he said it is part of their procedure where crime scene examiners endorse at the back of the lifts where they collect the finger prints from. He said they will only take photographs of the prints if the prints are found on a rough surface or in a situation where it is impossible to lift the print with a finger print lifting tape.
       
    5. He denied the suggestion that the finger prints were obtained when the accused was in police custody. When it was suggested to him that the accused’s finger prints were not uplifted from the kitchen tiles at Lot 37 Toganivalu Road, he said he believed that it was lifted from the tiles at a window in the said address. He further said that in one of the prints there is a white portion across the lift that confirms that it is the joint of white tiles.”
       

Consideration of the 1^st ground of appeal

“THAT the learned trial Judge erred in law and in fact in not analyzing deeper each of the prosecution witness statement as it was tendered after the allegation, while it was still fresh in their minds.”

[13] As regards the grievance set out in this ground of appeal, it is necessary to consider whether the Trial Judge analysed the inconsistencies in evidence led by the prosecution and gave clear, precise and detailed analysis of them to the assessors showing how they should approach them.

[14] In paragraph 4 of the summing up the Trial Judge properly directed the assessors, as to what purpose a statement made by a witness to the police could be used:

“4. A statement made by a witness to the police can only be used during cross-examination to highlight inconsistencies. That is, to show that the relevant witness on a previous occasion had said something different to what he/she said in court. You have to bear in mind that a statement made by a witness out of court is not evidence. However, if a witness admits that a certain portion in the statement made to the police is true, then that portion of the statement becomes part of the evidence.”

[15] In paragraphs 8-11 the Trial Judge had clearly dealt with the issue of assessing the credibility of a witness in the context of inconsistencies in his/her evidence:

“8. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. You may also find inconsistencies between the evidence given by different witnesses. This is how you should deal with inconsistencies. You should first decide whether that inconsistency is significant. That is, whether that inconsistency is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next.

9. However, if there is no acceptable explanation for the inconsistency which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies in the evidence given by a witness influence your judgment on the reliability of the account given by the witness is a matter for you to decide.
   
10. Therefore, if there is an inconsistency that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of the witness’ evidence is inaccurate; or you may accept the reason the witness provided for the inconsistency and consider him/her to be reliable as a witness.
    
11. You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what the witness said in evidence. You may ask yourself whether the evidence of a witness seem reliable when compared with other evidence you accept. These are only examples. It is up to you how you assess the evidence and what weight you give to a witness' testimony.”

[16] In paragraphs 25 of the summing up the Trial Judge had highlighted an inconsistency, in relation to the evidence of the prosecution witness Jan Mohammed Sakur, in the following manner:

“c) He had that phone for approximately 18 months. He identified the phone shown to him in court as the one that was stolen. He entered the password in court and he showed that the phone was unlocked. He also pointed out that there is a message in the phone from his daughter that the mother is coming on Saturday. This phone was tendered as PE 2.

4. During cross examination he agreed that he did not mention about the password in his phone in his first statement given to police. He also agreed that he told the police about the password when the police officers brought the phone to him on the 9th August.”
   

[17] In relation to the inconsistency that arose as to the names ‘Lui’ and ‘junior’ the Trial Judge had given adequate direction to the assessors:

“e) During cross examination he said he does not know any other name of the person he referred to as Lui. He said the other bouncer Saimoni Junior is called by the name ‘Junior’. He said he only mentioned the name Lui to the police and he did not say that Lui’s name is Mosese Uluicicia. When it was pointed out that it is written in his statement made to the police that his colleague ‘Joe’ saw him giving the phone, he said police had mistakenly written that and ‘Joe’ is supposed to be ‘Junior’. When it was pointed out that it is stated in his statement made to the police that he saw Lui at the top bar around 1am he said it was outside. He said the content the police had put in his statement is wrong. When it was pointed out that he had told the police that Lui gave him $20 he said Lui did not give him any money. He denied that he told Tulia that the phone belongs to him. He denied the suggestion that he implicated the accused to save himself when the police questioned him about the iPhone.”

[18] A further discrepancy that arose in relation to the involvement of Lui had been brought to the attention of the assessors by the Trial Judge in the following manner:

“(30-b) During cross examination when he was asked how can he say he knows Lui if he had never spoken to Lui, he said he knows Lui because one day there was a fight with Lui and after few weeks Lui came to him and apologised. He said his colleagues at work call him ‘Junior’. He agreed that he did not tell the police when his statement was recorded that he is also known as Junior. He agreed that he told the police that the mobile phone he saw was a black iPhone.”

[19] In paragraph 53 the Trial Judge had given clear directions to the assessors, pointing out the inconsistencies, and showing how they should take them into consideration, in the following manner:

“53. The defence points out that there are inconsistencies in the evidence led by the prosecution. The defence pointed out the evidence of the fifth prosecution witness, Iferemi Suguturaga that Lui approached him outside the night club and the sixth witness’ evidence that he saw Lui approach the fifth witness inside the nightclub. The defence also pointed out the evidence of the seventh prosecution witness, Tulia Raluve that the fifth prosecution witness told her that the iPhone belongs to him whereas the fifth prosecution witness denied that during cross examination. You should consider these inconsistencies and any other inconsistency you may have noted according to the directions I gave you earlier on dealing with inconsistencies.”

[20] It is manifestly clear from the foregoing that the Trial Judge had given adequate directions, both on law and facts on the issue of inconsistencies in evidence.

[21] Moreover, the Trial Judge had dealt with the same issue in his judgment in the following manner.

[22] In paragraphs 6, 7 and 8 of the judgment it is stated:

“6. According to the fifth prosecution witness’ evidence, when ‘Lui’ approached him and said that he (Lui) does not have money showing him the phone tendered as PE 2, without any hesitation the fifth prosecution witness volunteered to sell that phone. At once he decided to go to the seventh prosecution witness who was a bartender at Signals Nightclub to sell the phone. However, according to the seventh prosecution witness, she does not know the fifth prosecution witness with whom she negotiated and bought PE 2 which was an Apple iPhone for $160 around 2.00am in the morning. The fifth prosecution witness said he did not receive any money from ‘Lui’ for selling the phone. But in his statement given to the police it is stated that he received $20 from ‘Lui’. There were inconsistencies between the evidence given by the fifth prosecution witness and the evidence of the sixth and the seventh prosecution witnesses. The above facts taken together with the demeanour and deportment of the fifth and seventh witnesses when they gave evidence, prompted me to approach their evidence with caution.

7. There was a significant inconsistency between the evidence given by the fifth prosecution witness and the evidence of the sixth prosecution witness with regard to the place where the person the two witnesses referred to as ‘Lui’ approached the fifth prosecution witness. Though the fifth prosecution witness said in his evidence that he was approached by ‘Lui’ outside the nightclub, the sixth prosecution witness said this happened inside the nightclub. It was revealed during cross examination that the fifth prosecution witness had told the police that he met ‘Lui’ at the top bar in the nightclub. Considering all the evidence I accept the version of the sixth prosecution witness, that is, ‘Lui’ approached the fifth prosecution witness inside the Sand Dunes Nightclub.
   
8. However, I note that there was no inconsistency with regard to the fact that ‘Lui’ gave PE 2 to the fifth prosecution witness in front of the sixth prosecution witness in the early hours of 07/08/16.”
   

[23] At the end of the summing up the counsel for the Appellant had sought a redirection in relation to an inconsistency in the evidence of the witness Naupoto in the following manner:

“Ms. Hazelman: My Lord just in regards to the inconsistency I believe my Lord did raise the inconsistency between PW 5,6, 7 but my Lord did not raise the inconsistency in regards to for this for the Police Officer Viliame Naupoto and Mosese Rokobera the inconsistency in the sense that in terms of the when he had given the when he arrived at crime scene office he prepared the crime scene report and he had given it to a to his OIC but the other prosecution witness Mosese Rokobera in his evidence he stated that received it from this particular evidence Naupoto just in regards to that inconsistency, My Lord.”

[24] This ground of appeal lacks merit.

Consideration of the 2^nd ground of appeal

“THAT the Learned Trial Judge also ignored and mis-considered the evidence of fingerprints given by the PW12 and PW13 and the last PW14 Mosese Rokobera. It appears to be a work of police fabrication against the appellant.”

[25] In essence, the complaint of the Appellant in relation to this ground is, that the evidence was not sufficient to prove all the elements of the offence, specifically the identification of the Appellant. He claims that the fingerprints uplifted from the scene were not authentic but planted in order to frame him.

[26] It appears that the Appellant had taken the view, that if the evidence of Cpl. Naupoto is to be accepted, they should have a second set of prints since two people were involved in the robbery. The Appellant seems to think that the finger prints should have been photographed by Cpl Naupoto. The latter had categorically stated that he had followed the accepted procedures and processes involved whilst uplifting the prints.

[27] Witness Mosese Rokobera had testified as to how the prints were received and analysed by him and how the results were matched with the Appellant’s finger prints. In relation to the said evidence the Trial Judge observes in paragraph 13 of the judgment that:

“13. Based on the evidence of the twelfth prosecution witness and the final witness for the prosecution I am satisfied beyond reasonable doubt that the finger prints PE 4 and PE 5 were uplifted from 37, Toganivalu Road, Samabula and they were obtained and compared following the proper procedures established in the Fiji Police Forensic Services with PE 7 which contained the finger prints obtained from the accused by the tenth prosecution witness. Further, I accept the opinion given by the final witness for the prosecution that the finger print from the crime scene and the finger print in the finger print form are from the same person and that is the accused in this case.”

[28] A minor discrepancy that had arisen in relation to the evidence of Cpl Naupoto and Mosese Rokobera has been addressed by the Trial Judge at paragraph 14 of his judgment in following manner:

“14. The defence pointed out that there was an inconsistency between the evidence of the twelfth prosecution witness and the final witness for the prosecution in that, where the twelfth prosecution witness’ evidence was that he handed over the prints and the report to his officer in charge who was an officer by the name of Marshal, the evidence of the final witness for the prosecution was that the twelfth prosecution witness provided him with the information in order to do the comparison on 13/10/16. In my view, this inconsistency is not significant and is not sufficient to cast a doubt on the credibility of the aforementioned witnesses.”

[29] The Trial Judge accepted the testimony of both police officers Cpl Naupoto and Mosese Rokobera, as credible and reliable and rejected the version of the Appellant that the finger prints were a fabrication by them. There were no material whatsoever before the court to substantiate the claim of the Appellant. There was no evidence to show that the two witnesses discussed their evidence as claimed by the Appellant, and the fact remains that the two witnesses had been performing different duties during the time of investigation.

[30] This ground of appeal lacks merit.

Consideration of the appeal grounds three to five against the conviction

“3) That further the learned trial judge erred in law and in fact in sharing assessors facts of how to refuse appellants evidence of alibi before the judgment of this trial;

4) That the learned trial judge was swayed and biased when failing to put weight or consider the evidence of the defence witnesses and appellants which was given under oath;

5) That further in the judgment of the matter, the learned trial judge did not highlight or explained in court during its ruling why he refused the defence witnesses testimony of the appellant’s alibi.”

[31] Appeal grounds three to five against the conviction pertains to an issue of alibi. Therefore they can be considered together. At the outset it must be pointed out that no alibi notice under section 125 (1) of the Criminal Procedure Act had been given by the Appellant.

[32] It appears that the Appellant is aggrieved by the fact, that the Trial Judge did not believe his alibi witnesses, and also by his failure to provide reasons for refusing to believe them.

[33] The Appellant’s claim that the Trial Judge directed the assessors to reject his alibi witnesses is totally frivolous and unfounded. The court record does not reflect anything to that effect, whereas it clearly appears that directions have been given to the assessors on how to deal with the alibi witnesses. It is also to be noted, that no redirections have been sought by the counsel for the Appellant on such a grievance, at the end of the summing up.

[34] In paragraphs 16 and 17 of the judgment the Trial Judge states that:

“16. The above circumstances, taken together, leads to the irresistible inference that the accused had committed the offence of robbery at 37, Toganivalu Road, Samabula in the company of another.

17. Given all the evidence led in this case, I do not find the evidence given by the accused and his defence witnesses that the accused did not leave his house at Jittu Estate from the evening of 05/08/16 to the morning of 06/08/16 credible and reliable.”
    

[35] The foregoing grounds of appeal lack merit.

Order

1. Appeal dismissed.
   

Hon. Mr. Justice S. Gamalath

JUSTICE OF APPEAL

Hon. Mr. Justice C. Prematilaka

JUSTICE OF APPEAL

Hon. Mr. Justice W. Bandara

JUSTICE OF APPEAL