Verani v State [1997] FJHC 83; HAA0037D.1997S (7 July 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.HAA0037 OF 1997

Between:

LEPANI VERANI
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in person
Mr. N. Bhindi, for Respondent

Hearing: 7th July 1997

Decision: 7th July 1997

ORAL DECISION OF PAIN J

The Appellant appeals against his conviction in the Magistrates Court on a charge of robbery with violence and the sentence of 12 months consecutive imprisonment imposed thereon.

There was a defended hearing in the Magistrates Court. Evidence of the robbery was given by the complainant. He said that several men stopped his truck. They used threats and violence. They robbed him of his money till. In evidence he said that he recognised the accused as one of those men.

The prosecution also produced a caution statement which the interviewing officer said was made by the Appellant. A carbon copy of a charge statement was also produced. The carbon copy was admitted by the learned Magistrate as the original could not be located. However, it was an original carbon copy and clearly showed the charge statement in its original form.
The Appellant himself gave evidence. He said that he was not involved in the commission of the robbery. In his evidence and cross-examination of the complainant he clearly put identification in issue.

The learned Magistrate in his decision gave extensive details of all the evidence. He then went on and said at page 22 of the record "from the demeanour of the accused this Court is not satisfied with his alibi nor his stories. He is not telling one iota of truth in this Court. The prosecutions have proved their case beyond doubt."

Unfortunately the learned Magistrate did not deal with the issues arising in the case. He has only considered credibility. I repeat what has often been said in this Court. A Magistrate giving a decision that is subject to appeal ought to deal with the legal issues and give reasons for his decision.

In this case there was no challenge to the fact that a robbery was committed. The Appellant said that he was not one of the persons who committed that robbery. The principle issue in this case was the identification of the Appellant as one of the participants. It was necessary for the prosecution to prove beyond reasonable doubt that it was the Appellant who so participated.

The complainant who was the only eye witness to give evidence said that he had seen Appellant once before the incident. That was in his village a few days before. He said that he saw him on the day of the incident on the 29th February 1992. At the hearing on the 16th February 1995 he identified the Appellant (who then in the dock) as one of the people who committed the robbery.

This identification evidence is exceedingly weak. No means such as an identification parade were used by the police to verify the identification of the Appellant after the commission of the offence. The only direct identification is dock identification three years after the event. This is recognised as having little if any probative value and is a method of identification which ought to be avoided if possible. If this was the only evidence in the case then on Turnbull principles it would be unsafe to convict the Appellant.

However, this was not the only evidence adduced. The prosecution relied on the caution and charge statements which were produced at the hearing. It is probably because of the confession contained in the caution statement that the police did not consider it necessary to obtain any further identification of the Appellant.

The caution statement is signed in 8 places by the Appellant. Those signatures appeared to be consistent. They also appear to be consistent with the signature on the charge statement. The caution statement amounts to a full confession of the commission of this particular offence. Not only is the offence admitted but the explanation shows that the Appellant was fully conversant with what occurred and played a principal role. The charge statement confirms the confession made in the caution statement.

The Appellant, on the hearing of this appeal, denies that he made the caution statement and objects to the production of a copy of the charge statement. However, no challenge to the statements was made at the hearing. There was no evidence, cross-examination or other matter to suggest that the caution statement was not a voluntary statement. In particular, it was not said in evidence or put in cross-examination by the Appellant to the prosecution witnesses that the statement was never made by him.

The Magistrate rejected the evidence of the Appellant. He said that the Appellant was "not telling one iota of truth in the Court". He said that the prosecution had proved the case. That necessarily means that he accepted the evidence of the confession contained in the caution statement and confirmed in the charge statement. That confession on its own is sufficient evidence for a conviction. The evidence of the eye witness may be weak but the confession is sufficient evidence on its own and also gains some support from that other evidence from the complainant.

Accordingly, when the whole of the evidence is considered it will be seen that the prosecution did not rely solely on the evidence of the identifications by the complainant. Although that evidence on its own would not be satisfactory, the confession of the Appellant proves the matter beyond reasonable doubt.

The second ground advanced by the Appellant was that he was not allowed to call an alibi witness. This request was left until the very last moment. No earlier concern had been expressed by the Appellant regarding the attendance of this witness at Court. The trial had been pending for a very long time and the Appellant had made no apparent effort to locate the witness and have him attend Court. In fact the Appellant said to the learned Magistrate that he had no idea where the proposed witness lived. It seems most unlikely that the proposed witness could be found. In view of the rejection of the accused's evidence and the fact that the accused himself said that he could not remember the date he was with the proposed witness, it is most unlikely that the evidence of that proposed witness could have been of any material assistance to the Appellant. Having considered the record in this case and for the reasons given, I am satisfied that no miscarriage of justice has occurred in respect of this matter.

The appeal against conviction cannot succeed. The Appellant was rightly convicted on the evidence accepted by the learned Magistrate.

The Appellant also appeals against the sentence of 12 months consecutive imprisonment.

This was a very serious offence of robbery with violence. It was committed by the Appellant, a person whose previous offending and lack of remorse gave him no favourable consideration for a reduction in sentence.

A sentence of 12 months imprisonment for an offence of this nature is extremely lenient. I note that a greater sentence was imposed on a co-offender on an earlier occasion.

The learned Magistrate was aware that the Appellant was currently serving a term of imprisonment. That was apparent from the conviction list tendered at the hearing. A sentence of 6 years imprisonment had been imposed by this Court on the 14th March 1994 on a charge of robbery with violence. That sentence gives some indication of the view of this Court in relation to such offending.

When imposing sentence the learned Magistrate referred to the prison term being served by the Appellant. In imposing a consecutive sentence of only 12 months imprisonment for this serious prior offence the learned Magistrate gave proper consideration to the totality principle. The sentence is neither harsh nor excessive.

Accordingly, for the reasons I have given the appeals against the conviction and sentence are dismissed.

Justice D.B. Pain