Cakau v The State [1998] FJHC 36; Haa0100.97 (25 March 1998)

Fiji Islands - Cakau v State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA100 OF 1997

BETW>BETWEEN:

SEMI CAKAU
APPELLANT

AND:

STATE
RESPONDENT

Mr. Abhay Singh for the Appellant
Mr. Wylie Clarke for the Respondent

JUDGMENT

The judgment of Nausori Magistrate Nadakuitavuki in convicting this Appellant iwed throughout.

FACTS

On 2 December 1995 one Azad Ali, the proprietor of a meat firm, was robbed of his takings as he drove into his home after closing his shop. He was hit on the head with a cane knife, and required seven stitches. There were 5 men involved in the attack. They smashed the windows of his van and took over $4000. They escaped in a stolen taxi BL047.

The Appellant was positively identified by the owner of the stolen taxi, who got a good look at him at the time of its theft. The Appellant was clearly seen by the owner driving the taxi at Laucala Beach where the owner was bound and gagged then dumped at Nasese. The owner had also clearly seen him in the rear of the taxi by the rear vision mirror at the time the taxi was commandeered by the robbers. He was wearing a red T-shirt.

The Appellant was also seen in the headlights of a police vehicle while escaping from the getaway taxi BL047 after the Robbery when the taxi was intercepted. A policeman saw that the Appellant was the driver of that taxi. He had on a red T-shirt. He was found hiding in a cassava patch by other police, still with the red T-shirt on.

The owner by pure chance then saw the Appellant the next day at CWM Hospital where they were both attending for their respective injuries. The Appellant had apparently sustained injuries during the chase. The Appellant in an unsworn statement from the dock claimed it was a case of mistaken identity and that he had only happened to be drinking with some girls in the cassava patch when the police chase erupted around him. He only ran out of panic because he had a police record.

He was convicted of (1) Robbery with Violence and (2) Damaging Property and sentenced to 5 years and 2 years imprisonment to run concurrently.

IDENTIFICATION

The evidence of P.W.3 and P.W.4 alone constituted direct evidence of identification of the Appellant. The evidence of P.W.2 and P.W.5 is of a lesser variety and does not connect the Appellant with the getaway taxi, as the earlier witnesses do. Nevertheless, it is evidence which fits in with the earlier witnesses’ observations.

However, the trial Magistrate lumps them all together. He does not analyse their evidence, or warn himself as he must, of the dangers of identification evidence and assess the various strengths and weaknesses of the identifying witnesses. He does not seem to be even aware of judicial cautions issued for decades about the unsatisfactoriness of dock identifications.

For instance, P.W.3 the police officer, saw the driver of the getaway taxi for only 2-3 seconds in the police car headlights before he fled.

It is, of course, the evidence of P.W.4 the owner of the getaway taxi BL047 that overwhelmingly identifies the Appellant as one of those who stole his taxi to use as the getaway vehicle.

He 'identified the Appellant not only at the time of its theft from him but later at C.W.M. Hospital.

NATURE OF THE ACT

Under this heading (drawn from the case of R. v. Sims (1946) K.B.531, a case over 50 years old) the trial Magistrate goes astray entirely by referring to the chase after the offence was committed, and the Appellant's identification by P.W.3 and P.W.4 in the course of that chase, as part of the res gesta.

This belonged more properly under the heading of identification. There is no reason to import the doctrine of the res gesta at all. The case cited of R. v. Moore (1914) 10 Crim.App.Rep.54 clearly has no application to the present case. There, the accused with others had defrauded the complainant of 2 Pounds sterling by means of a "three card trick" on a train. The accused had got 40 yards down the platform when apprehended, by the complainant, whereupon a complete stranger handed the complainant the 2 Pounds back. It was held that this incident was part of the res gesta. This has no application to the present case.

Reference to this doctrine only serves to complicate a relatively simple case.

The Magistrate should more properly under this heading have dealt with parties to offences and how the driver of a getaway vehicle is equally guilty with those who use the violence and take the money.

He also seems to refer to two incidents happening "at Naulu on the same night". If this mystifying reference is to another Robbery committed on the same night, it was most improper and impermissible.

EXISTENCE OF ANY NECESSARY KNOWLEDGE OR INTENT

Under this heading, the trial Magistrate found, totally unnecessarily, and without any direct evidence at all, that the Appellant and his associates "master-minded the planned robbery." They "have studied the movements of the (complainant) Mr. Azad Ali, for some time."

It was unnecessary to go so far in convicting the Appellant. It would have been sufficient to find his complicity from driving the get-away vehicle. He may have had nothing to do with the planning.

GROUNDS OF APPEAL

The Appellant's Counsel, Mr. Abhay Singh conceded that most of the Appellant's home-drawn grounds of appeal were untenable and inappropriate.

He relied on 3 areas: (1) Improper reliance by the Magistrate on the identification evidence (2) Failure to consider whether all the ingredients of Robbery with Violence could be sheeted home to the Appellant (3) Irregularities in the history of the matter, particularly refusal of adjournment to get a lawyer after Mr. Tevita Fa withdrew, and failure to adjourn to allow the Appellant to locate and call his alibi witnesses.

Mr. Wylie Clarke for the Respondent State submitted that although the trial Magistrate's decision was flawed with multiple and manifest irregularities, still there was no substantial miscarriage of justice, and the evidence of identification was overwhelming, to support the conviction.

I agree with the State's submission. Furthermore, I find the Appellant had ample time after Mr. Tevita Fa's withdrawal on 27.1.97 and the resumption of the hearing on 4.6.97 both to get new counsel and have his alibi witnesses ready.

Despite the trial Magistrate's (i) failure to analyse the case properly and say why he accepted the identification evidence, (ii) reference to an offence other than that with which the Appellant was charged (iii) wrong application of the res qesta principle (iv) over-stating the Appellant's proved connection with the offence, nevertheless there was in my view no substantial miscarriage of justice in the conviction of the Appellant, (see sec.219(a) of the Criminal Procedure Code).

This was because of the overwhelming strength of the identification evidence where the identifying witness had the Appellant tinder observation for quite some time and on two different days. This was no mere fleeting glimpse.

SENTENCE

As to sentence, again the "sentencing principle" espoused by the Magistrate would appear to be one that might not be widely accepted on all sides. In the particular circumstances of Fiji, with ever-more violent Robberies escalating in numbers, deterrence would be by far the most important purpose of sentence, with public revulsion towards the crime being by no means the main consideration.

The cases cited by the Magistrate for his so-called "sentencing principle'' show they have nothing to do with the facts of the present case, in which, though regrettable, a cut to the victim's head is quite common-place.

The cases cited for the so-called "sentencing principle" are as follow:-

In R. v. Davies, The Times, November 10, 1964 (33 years ago) reported in (1965) Crim. Law Review p.251 bleach was thrown in the eyes of a policeman and a civilian helper pursuing the accused. They were blinded temporarily. It was correctly described as a horrible offence causing public revulsion. A sentence of 10 years was upheld.

In R. v. Mitchell 16 March 1965 (33 years ago) there were Indecent Assaults on 7 male pupils. Severe punishment was necessary to mark the disapproval of society. 6 years' imprisonment, however, was reduced to 4.

Both cases cited had an element of unusualness, blinding and homosexuality, which was considered to outrage society, whereas the present case had nothing to distinguish it except that it was injury during a Robbery which has become far too common in Fiji and needs deterrence.

It has been held repeatedly by Fiji Courts of Appeal and single High Court Judges that sentences for Robbery with Violence in the modern day on offenders with criminal records taking substantial sums of money should range between 5 and 8 years imprisonment.

I am unable to say that the present sentences totalling 5 years imprisonment on the Appellant who is not a first offender are manifestly excessive.

His Appeal against convictions and sentences are accordingly dismissed.

K.J. TOWNSLEY
PUISNE JUDGE

25^TH MARCH, 1998
SUVA