Seveti v State [2001] FJHC 210; HAA0035.2001 (6 July 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0035 OF 2001

BETWEEN:

MALAKAI SEVETI
Appellant

AND:

STATE
Respondent

Appellant in Person
N.K. Bulamainavalu and Ms A.K. Bavou for the Respondent

Date of Hearing: 6th July 2001

Date of Judgment: 6th July 2001

JUDGMENT

On the 27th of March 2001 the Appellant was convicted in the Suva Magistrate’s Court by the Chief Magistrate of a charge of Robbery with Violence, contrary to Section 293 (1) (b) of the Penal Code, Chapter 17 and sentenced to five years imprisonment, the maximum sentence a Magistrate’s Court may impose.

The evidence against the Appellant was that a house occupied by one Beniamino Racumu was broken into by the Appellant and ten others on the 19th of August 2001 at Lami. The State claimed that the Appellant and his companions ransacked the house and stole approximately $15,412.00 worth of properties and that the Appellant and his group violently tied up Mr. Racumu and fled with the stolen properties.

The Appellant pleaded not guilty. He said, in an unsworn statement to the Court, that he knew nothing about the offence.

I am satisfied, on reading the Record of the Magistrate’s Court that there was ample evidence on which the Chief Magistrate could convict the Appellant so that his appeal against conviction must stand.

The Appellant argued six grounds of appeal claiming inter alia that the Police should have held an identification parade before charging him and that their failure to do so rendered his conviction wrong. He relied on R. v. Turnbull (1977) 1 Q.B. 224 in which the Court of Criminal Appeal in England set out guidelines concerning the law on evidence of visual identification in criminal cases.

At page 228 the Court said:

“The judge should direct the injury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?”

In the instant case there was evidence from the Prosecution that the complainant had observed the Appellant for approximately twenty minutes while he ransacked the house which was well lit both inside and outside. I agree with the Chief Magistrate that this was not a “fleeting glance” so that Turnbull’s case does not apply here. I therefore reject this ground of appeal.

The next ground alleged bias by the Magistrate in his assessment of the evidence. There is not a scrap of evidence in my view to warrant that claim. This ground must also fail.

The last ground of appeal against his conviction was that the Learned Magistrate had denied the Appellant legal aid. There is nothing in the Court Record to show this and as a Magistrate’s Court is a Court of Record and there is no material before this Court that the Record is not correct, I also reject this ground.

As to sentence I consider the Chief Magistrate was correct in taking a serious view of the offence. Robbery with Violence is unfortunately very prevalent in Fiji and I believe the Appellant should consider himself fortunate that the maximum sentence a Magistrate’s Court can impose is only five years. Had the case been heard in the High Court the Appellant would have been liable to a maximum penalty of life imprisonment.

For these reasons I dismiss the appeal.

JOHN E. BYRNE
JUDGE

D:\Prasad\HAA0035J01S.wpd