Koroi v The State [1999] FJHC 16; Haa0050j.98b (22 March 1999)

Fiji Islands - Solomoni Koroi v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0050 OF 1998

:

SOLOMONI KOROI
Appellant

AND:

THE STATE
Respondent

Appellant in Person
Ms. A. Driu for the Respondent

JUDG>JUDGMENT

The appellant was convicted by the Labasa Magistrate Court on the 16th of March 1998 for three (3) offencesely Robbery With Violence; Larceny<; and Escaping from Lawful Custody - and was sentenced to a total consecutive term of four (4) years imprisonment made up as follows: Robbery - 3 years; Larceny - 6 months and Escaping - 6 months.

The appellant had pleaded 'Not guilty' to the charge. At the trial the prosecution called seven (7) witnesses and the appellant gave sworn statement that he 'did not commit these offences'. Plainly the identity of the culprit was the crucial issue in the case.

In a short six (6) page judgment the trial magistrate began by briefly canvassing the evidence of the prosecution's eye-witnesses and the appellant's sworn denial and thereafter correctly asks the question:

'Was it the accused who actually committed the offence?'

The trial magistrate for reasons that are not entirely clear then proceeds to an examination of the law on 'corroboration' and the 'burden of proof' in the next three (3) pages and then follows the critical passages:

'I am satisfied beyond reasonable doubt that the accused robbed the victim and used violence on her. I am also satisfied beyond doubt that he stole some money from her although the difference in amount as alleged and as admitted by the accused is only $1.00.

I am satisfied beyond reasonable doubt that he escaped from lawful custody. He admitted during cross-examination that he ran away while helping police search the kitchen for gold sovereign.'

The appellant now appeals against both his conviction and sentence.

As for his conviction the appellant sought to rely on various inconsistencies in the eye-witnesses description of the offender's clothing on the morning in question and the failure to hold an identification parade. Complaint was also made as to the misdirection by the trial magistrate on the 'onus of proof' in suggesting that the appellant could have denied on oath the prosecutor's accusation during cross-examination that he had committed the offences, but instead, 'he chose to remain silent'.

I have carefully considered the so-called 'inconsistencies' in the eye-witness's evidence of the accused's 'clothing' and am more than satisfied that the complaint is more imagined than real.

All eye-witnesses were unanimous in their evidence that the offender wore 'a hat' and all testified to a history of having dealt with, seen and spoken to the accused from his earliest childhood. This was plainly not a case of a fleeting glance of a stranger at a distance in bad light.

What's more the appellant in his sworn evidence in cross-examination admitted his earlier written confession to the police that he 'stole 5 sovereign' and '$6.00' and that he had run away whilst searching the kitchen at his place and whilst under arrest in the custody of a police officer.

I am wholly satisfied that there was more than sufficient evidence to convict the appellant and that the trial magistrate made no error in directing himself as to the burden of proof.

In this latter regard it should be said that whilst an accused person has a right 'to be presumed innocent until proven guilty', and a right, 'not to be a compellable witness against himself' (Sections 25(1)(a) & (f) of the 1997 Constitution), once an accused elects to give sworn evidence in court in his defence, he becomes an ordinary witness before the court and loses his right to silence. In other words no witness, whether an accused or not, has a right to refuse or to decline to answer any reasonable and permissible question put to him in court.

There is no merit in any of the grounds urged by the appellant against his conviction which is accordingly sustained and upheld.

As for the cumulative sentence of 4 years imprisonment the appellant says it is 'harsh and excessive' and ought to have been made concurrent as all three (3) offences could be considered as having occurred during the course of a single transaction.

State Counsel very properly in my view conceded that the consecutive order of the trial magistrate was wrong in principle and I entirely agree.

All three (3) offences arose out of the same incident and occurred within a period of 24 hours and in respect of the Robbery and Larceny counts, they occurred within minutes of each other and involved the same victim in the same location.

The sentences are accordingly ordered to be served concurrently making a total sentence of three (3) years imprisonment with effect from the 16th of March 1998.

Subject to the above minor adjustment to the sentence, the appeal is dismissed.

D.V. Fatiaki
JUDGE

At Labasa,
22nd March, 1999.

Haa0050j.98b