Tupou v The State [1998] FJHC 51; Criminal Appeal EM25 of 1985 (17 April 1998)

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. EM25 OF 1985

BETW>BETWEEN:

NIKASIO TUPOU
AND MITIELI KALOU
Appellants

THE STATE
Respondent

AppellantPerson

Mr. J. Naigulevu for the Respondent

Date of Hearing: 14 April 1998
Date of Judgement: 17 April, 1998

JUDGMENT

The Appellants ants were both convicted by Suva Magistrate, S.P. Sharma on 16 January, 1998 on 2 counts of Robbery with Violence and one count of Unlawful Use of a Motor Vehicle.

They were each sentenced to two consecutive terms of 2 years imprisonment on the Robberies and 9 months concurrent on the unlawful user.

They appeal in basically identical terms saying their convictions were unsafe and unsatisfactory, because the learned Magistrate rate should not have accepted the evidence of witnesses who identified the First Appellant at one robbery scene, and the Second Appellant at the second robbery scene, both being passengers in the stolen vehicle used to effect the robberies.

They further point to alleged impossibilities of identification of them in the evidence of the identifying witnesses, and in further grounds handed up at the hearing, conflicts between the witnesses on identification.

The First Appellant complained of procedural irregularity in his not being served in the lower court with proper documentation. The Second Appellant also complained of police seizing incriminating material from the house at 218 Rewa Street without a search warrant, although, as pointed out to him, that evidence did not directly relate to him, but to the First Appellant.

They both also say that the evidence of one of their associates with a criminal record called by the prosecution was wrongly rejected by the learned Magistrate after declaring him hostile.

They also say their sentences were excessive and had a wrong factual basis.

The Appellants, being unrepresented, may not fully understand that a High Court Judge on appeal does not hear the case afresh, all over again.

He is merely concerned to see that there was evidence upon which the learned trial Magistrate could reasonably have come to the conclusions he did on the evidence.

The Judge on appeal is bound by the evidence appearing in the record.

The same applies to the sentences. It is not that a Judge may alter the learned Magistrate's sentences at his private whim. It is only if the sentences are manifestly excessive, and out of all proportion to the offences, that a Judge may interfere.

EVIDENCE

The van used in the robberies was a blue Liteace van BU-055 stolen after 7a.m. on Thursday 12 June, 1997 from the road where its electrician owner had parked it in Brown Street, Suva. He first missed it at a 1/4 to 3p.m.

At 2:30p.m. the same day the van was used to commit robbery by three people 2 of whom came out of it to the cashier at Carpenters Service Station, Tamavua, near Mead Road. The third one stayed inside the van. They were 2 fat men. in ragged clothes, about 30 years of age. They pushed this cashier. He only saw two eyes. One with a stick said "Stay there, don't move." The other one had a knife. The cashier was afraid. The men were there about 10 minutes. The cashier noted the number of the van, BU-055, but could not identify any of the robbers.

With the cashier was a supervisor, who also saw the same things, except that it was an iron rod not a stick that one robber had. He says he saw one of the robbers, the 1st Appellant, Tupou go to the office and as he was about to enter that office, he turned around and he could see Tupou's face. He was wearing only a pull-over with a hood, not completely masking his face, like the other robber, who was confronting the cashier.

On the Monday following, 16 June 1997, at Samabula Police Station the supervisor picked the 1st Appellant Tupou out of a line-up of 11 Fijian men of similar appearance.

A second cashier at Carpenters Motors was approached by the robber with the knife and money and a gold chain were taken from him. He saw 4 people not 3. He said the ordeal lasted 2 minutes in relation to him. The one who came to him was not masked, it was like a pom-pom with eyes cut out but he could not identify any of them. One had a knife, one had a steel rod, one had a bottle.

The same van BU-055 then turned up within minutes at Kundan Singh’s Service Station not far from Carpenter’s Motors. A bowser attendant on the driveway had bottles thrown at him by one occupant of the van while two others went inside to where the cashier was. One of them had a rod, about a meter plus long. The attendant could not identify any of the man, but saw the van number BU-055.

At Kundan Singh’s, there happened to be a taxi-driver customer at the Supermarket cashier, about 10 feet from the Service Station. He heard the sound of bottles cracking. He ran towards the bowser and saw 3 people sitting in the van BU-055. The person sitting in the left hand front had an iron rod. As the witness ran along, the van came close to him. He managed to recognise the face of the man sitting at the left had side in front. It was the 2^nd Appellant. He was wearing a pull-over, but the pull-over was not covering his full face. The front of the face was visible. He held the iron rod pointing at the Supermarket like a gun.

On Sunday 15 June 1997 at a line-up of 9 Fijian men of similar appearance, this witness promptly identified the 2^nd Appellant, Kalou, as the man he saw.

Both Appellants when interviewed under caution, stoutly denied their involvement. But the 1^st Appellant, Tupou did admit that he had lived for 5 months at a house at 218 Rewa Street with Keresoni Rarawa, the prosecution witness declared hostile and rejected as a witness of truth by the learned Magistrate. Tupou further admitted he had bee at that address as early as 8 am on the morning of the robberies.

Upon Police searching the abandoned van they found the cash register from Kundan Singh’s forced open, a piece of rusting iron pipe about 1 meter long, cement block pieces and bottles.

On visiting 218 Rewa Street, they found pieces of broken blocks/bricks and 2 pieces of rusting iron pipe in the basement. Upon comparing the rusting pipe found in the van with the rusting iron pipe found at Rewa Street they were found to be a match.

There were 4 pieces of cement block seized from 218 Rewa Street and 6 pieces of cement block obtained from the abandoned van. Blocks 1 and 2 from the van fitted blocks from 218 Rewa Street.

In cross-examination of the identifying witnesses, the 1st Appellant made no impression whatever on the supervisor, Rakesh Pillay who saw his face. The 2nd Appellant however did ask apposite questions of the taxi driver Nitra Nand who saw his face in the front seat of the blue van. But the witness only improved his evidence and said he saw his face and his build, by which he meant his shoulders. He saw him properly. At the I.D. parade, the witness said he had a good look at the 2nd Appellant "just to confirm myself and went along the parade and came back." He stood there at the parade looking for 2 minutes.

Both Appellants gave evidence on oath but merely repeated their denials made to police, and their alibis.

They called alibi witnesses. The 1st Appellant's first alibi witness, Setoki, was a moneylender at the wharf. The 1st Appellant was a casual wharf labourer. Setoki attempted to place the 1st Appellant there all afternoon on 12/6/97 but admitted in cross-examination that he was working at his money-lending. Notwithstanding this he claimed to have kept the 1st Appellant under observation the whole time. This was although there were many people there. A friend of the 1st Appellant's of 5 years' standing, one Osea Valekasavu, said he was with him all afternoon at the wharf. But he could not remember what day of the week it was, under cross-examination, although he purported to remember the date.

The 2nd Appellant called his uncle, one Amenatave Aremulu to say he had come to the wharf two times, one to leave some canvas shoes and then between 2:15pm to 2:45pm (the exact time of the robberies) to take the canvas shoes away again. It was never explained why the 2nd Appellant found it necessary to do this.

The 2nd Appellant was away between 1:15pm and returned at 2:15pm. The witness did not expect the 2^nd appellant's return but met him downstairs after a one-hour lunch break, and estimated the time from the normal length of the lunch break. He denied he was guessing the time of the 2nd Appellant's return.

The 1st Appellant as a Ground of Appeal points to the inability of Chandar Nair, whose personal wallet and gold neck-chain were taken, in a close encounter, to identify the 1st Appellant because of his mask, yet Rakesh Pillay could from some distance away identify him.

Pillay was seemingly cross-examined about this difficulty on the first question asked him by the 1st Appellant, but said that the 1st Appellant had no mask on him. Pillay also said the 1st Appellant was wearing a pullover with a hood.

Rajesh Kumar, the first cashier robbed of $60 had given evidence that he could not identify either robber, saying he only saw two eyes. But he did not mention masks.

Nair, the second cashier robbed of $250 of Carpenters Motors money, plus $100 of his own, plus a gold chain worth $350 could not identify the robber who came to him with a knife, although he was not really masked, but had a pom-pom with cut eyes, meaning presumably slit eyeholes.

This leaves open the possibility that it was not the 1st Appellant who took the money from Nair, but the 2^nd appellant, the 1st Appellant being in close proximity.

Whatever be the explanation, Pillay was adamant that he saw the 1st Appellant's face and to prove that he did, was able to pick him out unerringly in the line-up a few days later. In any case, insofar as the 1st Appellant seeks to use witnesses' statements to police to discredit their evidence, the attempt fails because those police statements did not find their way into the record. They cannot be quoted from in extenso in this Appeal.

The 2nd Appellant also as a Ground of Appeal complains of differences between the police statement of Nitya Nand, the taxi driver who identified him and Nand's evidence. The police statement allegedly refers to the face of the robber in the front seat of the van being covered but the balaclava coming off and his face thus being seen, whereas in evidence Nand said nothing of this, only that he was wearing a pull-over over his face, but not fully covering it.

The short answer to this is that the discrepancy was not. put at the trial and the police statement is not part of the Record on Appeal. Therefore the Magistrate was in no position to give regard to it.

The 2nd Appellant also relied on discrepancies between Nand and police as to what day he reported his

ability to identify the 2nd Appellant to the police. This point was not made to the Magistrate at the trial, and in any event appears to have no great bearing on the case.

The only lacuna in the Magistrate's Record is that the Appellants were not invited to make final submissions on the evidence. But the learned Magistrate made a close analysis of the evidence in any event, so that the omission to ask for submissions was not fatal.

MAGISTRATE'S JUDGMENT

The learned trial Magistrate's judgment in my view, was impeccable. He isolated from the start that the issue was identification. It is refreshing to see such a judgment come up from the Magistrates Court.

He then took pains to warn himself thoroughly in terms of Turnbull's case, the locus classicus on the dangers of identification evidence.

He then made certain findings of fact which were substantially correct except that some personal cash $100 as well as a gold chain were stolen from Chandra Nair, not Rakesh Pillay.

Also no witness identified the cash register forced open and found in the back of the van abandoned in Lekutu Street as the property of Kundan Singh, but circumstantially, one would have no doubt it was. There was, however no evidence that its value was $4,000.

For a stealing, of course, it is sufficient if property worth any amount is stolen.

The learned Magistrate then proceeded to analyse the case, as I say, impeccably, and gave the benefit of his observations of the witnesses.

He saw and heard the witnesses, and was prepared to accept the identifying witnesses beyond reasonable doubt. He applied the guidelines in Turnbull's case. He found that the identifying witnesses had special reasons for remembering the two Appellants. They had a relatively undisturbed opportunity of observing the Appellants.

The learned Magistrate said he tried "to unveil the identification evidence thread by thread looking for weaknesses." He found none.

Upon reviewing the evidence, I totally agree with him.

The learned Magistrate also carefully reviewed the evidence of alibi from the two Appellants and their witnesses. He found them "lacking in force and credibility."

This was a view he was entitled to take and that all of them were closely known friends of each other and not independent witnesses, like the identifying witnesses, who knew neither each other nor the police before the incidents. The Magistrate found the defence not sufficiently worthy of credence and was unacceptable.

There is no basis for me as an appellate tribunal to gainsay these findings. The learned Magistrate had the benefit of seeing these witnesses. His findings cannot be disturbed, on the facts of this case.

The learned Magistrate was also astute enough to see that the evidence of the 1st Appellant's admitted connection with the house at 218 Rewa Street and hence the rusty iron piping and cement bricks found there and in the van also tended to corroborate the identification of him as one of the robbers.

Lastly, I find no substance in the Appellants' complaint of rejection of the witness Keresoni Rarawa as hostile, or of the non-disclosure of police material at the trial, nor that property was obtained without a search warrant from 218 Rewa Street.

All in all, the learned Magistrate's judgment was a model of correct analysis of the evidence. He was perfectly justified in convicting both Appellants and their Appeals against conviction are dismissed.

As to sentence, I am of the view that the sentences imposed were quite within the range of sentences that could be imposed for this type of offence, and were even on the low side, considered individually.

It may perhaps be thought that the Robbery sentences should have been concurrent, from one point of view, but in that case, I think 4 years' imprisonment on each Robbery concurrent would have been well within permissible limits, so that the end result would be the same.

This accords with the tariff suggested in the New Zealand case of R. v. Moananui [1983] NZCA 66; [1983] N.Z.L.R. 537 cited with approval by the Fiji Court of Appeal in Joseva Lui and Ors. v. The State Crim.App.No. AAU0005/975

The Appellants had 31 and 9 previous convictions respectively, the majority of which were for offences of stealing other people's property.

The sentence of 9 months imprisonment for Unlawful Use of a Motor Vehicle was scarcely even complained about, merged as it was in the larger whole.

The Appellants' appeals against their sentences are also dismissed.

K.J. Townsley
JUDGE

17 April, 1998