Rakabu v The State [1991] FJHC 17; Haa0006.1991 (14 February 1991)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 6 OF 1991

Between:

SAILOSI RAKABU
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Hettige for the Respondent

JUDGMENT

The appellant pleaded not guilty to an offence of Robbery with Violence. After a short trial in which the prosecution called the complainant and tendered the interview and charge statements of the appellant, he elected and made an unsworn statement from the dock questioning the voluntariness of his statements and denying the offence.

The learned trial magistrate delivered a short judgment in which he dealt fully with the complainant's evidence and dismissed the appellant's unsworn denials. In particular the learned trial magistrate recognised that the case was one which turned principally on the question of the identity of the assailant and he unhesitatingly concluded that it was the appellant.

Such a finding of fact based as it was on an assessment of the credibility of the complainant's evidence can only now be challenged on appeal if it can be shown to have been unsupported by the evidence.

In this regard the appellant complains that no identification parade was held in the case.

However the learned trial magistrate fully dealt with the circumstances in which the complainant recognised and later identified the appellant by reference to the candle light present in the small room in which they were drinking and the period of 2 hours during which time the complainant would undoubtedly have had ample opportunity to acquire some familiarity with the appellant's appearance. This ground of appeal fails.

Reference was also made to the clear admissions recorded in the appellant's statements as being corroborative of the complainant's evidence and his identification of the appellant as the assailant.

Also in respect of these the appellant challenged the voluntariness of his statements in his unsworn statement in court. That contrasts vividly with the complete absence of any cross-examination of the two police officers concerned.

It is also significant that both statements were recorded on the 10th of November 1989 some 2 months after the incident is alleged to have occurred; both are in a language readily understood by the appellant and both bear his signatures in various places.

In those circumstances the learned trial magistrate was perfectly entitled to find "......... that (the appellant's) unsworn statement from the dock that he did not give the statements willingly is without foundation".

This ground of complainant is also dismissed.

Then the appellant purports to rely on the evidence of 2 female witnesses who were called by the prosecution at his trial and who both failed to identify him despite allegedly having given his name to the police in their statements.

In respect of both witnesses the prosecution sought to declare them "hostile" and succeeded against one but failed in respect of the other. The learned trial magistrate nevertheless rejected both witnesses evidence as "unworthy of credit" as he was quite entitled to do and nothing has been placed before this Court to suggest that that was not a proper assessment of the witnesses testimony which substantially supported the complainant's evidence in all material respects except for the identity of the assailant.

It is also significant that both women gave their statements to the police on the very next day after the incident occurred when events would have been freshest in their minds and at a time when their "loyalties" towards their Vanuatu hosts were unquestionable. This ground of appeal also fails and is dismissed.

All grounds of appeal having thus being dismissed as being without merit the appellant's conviction is accordingly upheld.

As for sentence the learned trial magistrate imposed 18 months imprisonment. This cannot be considered harsh or excessive for a robbery of an innocent albeit naive visitor to our country who had been threatened with a broken beer bottle and had his $70 camera stolen in the process.

Needless to say learned State Counsel correctly points out that the appellant has several previous convictions for similar offences in his recent past and for which he received the relative leniency of concurrent suspended sentences.

This most recent offence under appeal was committed during the operational period of the suspended sentences and a consecutive sentence cannot be considered unprincipled.

The appeal against sentence is dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
14th February, 1991.