Respondent
1st Appellant in Person
Mr W. Kurisaqila for Respondent
Hearing: 21st September 2001
Judgment: 5th October 2001
JUDGMENT
On 27th March 2001 both Appellants were cted by the Suva Magistrates Court, of the following offence:
Statement of Offence
ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of the Penal Code Act 17.
Particulars of Offence
PETER COSTA and SAVENACA WAQATABU and others o 26th day of February 2000 at Suva in the Central Division being armed with offensive
weapoweapon robbed JOSUA BALEIVARANI VARI of $65,869.58 the property of THOMAS COOK NEW ZEALAND LIMITED.
They were both acquitted on Count 1 which reads as follows:
Statement of Offence
UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 292 of the Penal Code Act 17.
Particulars of Offence
PETER COSTA and SAVENACA WAQATABU and others on the 26th day of Feb 2000 at Nasinu in the Eastern Division unlawfully and with without
colour of right but not so as to be guilty of stealing took to their own use and benefit a private motor vehicle registration number
DK116 the property of KIRAN KUMARI s/o DIP NARAYAN.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Both Appellants now appeal against conviction and sentence.
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Grounds of Appeal
The grounds of appeal of the Appellants are similar and may be summarised thus:
1) &bsp; ; &nbbp;&nnbsp; tsp; the lear learned Magistrate erred in convicting on Count 2, when he acquitted on Count 1;
/p>
2ndif]> &nbbsp; there waufficieficient evit evidence to prove the case against each accused beyond reasonable doubt;
ass=Level1 sel1 style="text-align: justify; text-indent: -35.45pt; margin-left: 70.9pt; margin-right: .2pt; margin-top: 1; margin-bottom:
1">3) tae le Mnedstrgie erted ined in rejecting the evidence of alibi;
<1"> &-GB>
4) &nbp; &nnbsp; &nbssp; tsp; the police fabe fabricated the evidence against each accused;
& tpe Apntslaere were prejudrejudiced because of lack of legal representation;
&nGB>
6) &nbbsp;&&nsp;;&nsp; tsp; the sentences of 5 iars imprisonment were harsh and excessive.
Submissions
The 2nd Appellant was represented at the hearing of the appeal, but the first Appellant was not. Counsel submitted that this wasse
of circumstantial evidenvidence, in which the Appellants needed careful and well-prepared representation. He said that the prosecution
had failed to prove each thread of circumstantial evidence to the extent that the only reasonable hypothesis was the guilt of the
Appellants. He referred in particular to the evidence of glass fragments found in the balaclava found on the 2nd Appellant, saying
that there was no evidence that the glass could not have come from somewhere else. He further submitted that the balaclava was not
analysed for glass until three days after seizure, which allowed the police to plant that evidence. He agreed that this was not put
to the police witnesses at the trial, and said that if the Appellants had been represented, it would have been. He further submitted
that the foreign currency alleged to have been given by the 2nd Appellant to a taxi driver had not been traced to the robbery, and
that the money had instead been stolen by the taxi driver.
State Counsel opposed the appeal saying that there was evidence of glass on balaclava, canvas shoes, a get-away van andThomas Cook
Office all matc matched. He said that this evidence combined with the presence of foreign currency on both Appellants was enough
to prove their guilt beyond reasonable doubt. He agreed however that the matters now being raised at the appeal by the Appellants
were not raised at trial probably because the Appellants were not legally represented.
The evidence at trial
lang=EN-GB>
On 26th February 2000, the Thomas Cook Foreign Exchange was open for business. Just before 9am the staff heard a crashing noise and
someone screaming. Fred Gibson (PW1) saw a man at one of the booths trying to break it with a crowbar. He was wearing a dark-coloured
balaclava and his head was covered. Arvind Chand saw two robbers, both wearing balaclavas. The glass from two booths was shattered
and a total of $65,869.58 was missing in various foreign and Fiji currencies. Josua Vari (PW4) saw 4 robbers, all wearing dark-coloured
balaclavas and blue overalls, carrying iron rods and knives.
At about 8.30am Ramiza Rafia Janiff saw a white van double-parked near the Fiji Visitors Bureau. She said the van had a driver and
other people. She later identified the driver as being the 1st Appellant from police photographs and an identification parade. She
said the white van was double parked for a while, then moved to the road in front of Jack’s Handicrafts. This was at 8.30am half
an hour before the robbery.
Gobardhan (PW8) gave evidence that his white van DK116 was stolen his home on 26th February 2000. His son Arun Kumar recovered the
van on the same day at 3pat 3pm. The police found glass fragments in the van, which was analysed by the Government Analyst who said
that the glass matched the glass at Thomas Cook.
One Metuisela Koroi (PW14) gave evidence that he is a taxi driver, and that the 2nd Appel on the 27th of February 2000, hired his
taxi to go to Nadi Nadi with his wife and two children. The fare was $150, but the Appellant paid him over a thousand dollars in
foreign currency. He did not count the money, but later gave the money to the police.
On 29th February the police searched PW14's house and found $1000 in various currencies. They also searched the 1st Appellant’s room
at the Ocean View View Motel and found cash, foreign currency, a black “pompom”, a pair of black Nike canvas shoes amongst other
items. A receipt was found on him showing that he had changed US money into Fiji currency.
On the same day the 2nd Appellant’s home warched, and money and a navy blue “pompom” was seized from him.
On 3rd March 2000, glass fragments from the scene, from the van, the two ‘pompoms’ and the canvas shoes were given to the Government
Analyst, who said in her report that “glass fragments from the van, pompom (blue) and shoes are similar to the glass fragments found
at the scene.” In her evidence the Government Analyst said that:
“The glass fragments from the pompom matched the glass fragments from the crime scene. The glass fragments had the same characteristics.”
She read her report out in court. She did not explain how ested the glass, and to what extent the glass was similar. Nor was she asked
by either pros prosecution or defence.
The 1st Appellant remained silent and called a witness Josateki Cama who said that he had beth the 1st Appellant at the Ocean View
Hotel between 8.30am.30am to 9am on the 27th of February 2000.
The 2nd Appellant gave evidence saying that the US money he had changed for Fiji money had been sent to hihis mother from the USA.
HeA. He said he had never worn the pompom which was found in his suitcase.
That was the evidence against the accused.
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Circumstantial Evidence
As with all cases, the court must of course be satisfied of the accused’s guilt beyond reasonable doubt. In respect of circumstantial
evidence the court should ask itself whether the guilt of the accused, taking all the evidence together, is the only reasonable conclusion
one could come to. In other words, is there any other reasonable hypothesis consistent with the accused’s innocence?
The pieces of evidence relied on by the prosecution were the presence of the 1st Appellant Thomas Cook’s half an hour before the robbery,
the presencesence of glass in items of clothing found on each accused, and the possession by each accused, of foreign currency one
or two days after the robbery. No evidence was led that the currency found was part of the stolen money.
Although the identification of the 1st Appellant by praph prior to the identification parade is not altogether satisfactory because
the witness ness might have been identifying the person in the photograph rather than in the van, the registration number of the
van was never identified by the witness. We do not know if it was the same van in which the glass was later found. However, it does
place the 1st Appellant at the scene about half an hour before the robbery. It is a thread in the cable of the evidence. It was evidence
on which the learned Chief Magistrate was entitled to rely.
The evidence of the glass in the pompom belonging to the 2nd Appellant, and the shoes of the 1st Appellant is similarly far from conclusive.
No evidence was led to show that the glass could only have come from the Thomas Cook robbery and nowhere else. No evidence was led
to show how the analyst tested the glass to rule out the possibility of the glass coming from somewhere else. All we can say about
this evidence, is that glass similar to the glass at the robbery was found on the pompom and the shoes. It is a thread in the cable
but it is not conclusive proof of the Appellants’ guilt.
Similarly the foreign currency was not traced to the robbery. However the types of currency stolen included Australian, Canadian,
English, Solomons, and Vanuatu money, which types were also found in the possession of PW14 which had been given to him by the 2nd
Appellant. This evidence is certainly another thread in the cable of proof.
In the light of all of this evidence together, there was sufficient evidence to justify putting the Appellants to their defence. The
evidential burden was then on them to provide alternative hypothesis.
They did so. The 1st Appellant provided an alibi witness. It follows that his defence was that the identifying witness Ramiza Janiff
was either mistaken or untruthful. The 1st Appellant said nothing about the presence of glass in his shoes. In his caution interview
to the police he said that the shoes and foreign currency found in his possession belonged to his girlfriend.
The 2nd Appellant gave evidence that he was at home at the time of the robbery, that he had never worn the pompom, and that hebeen
framed by the police. ice. The learned Magistrate clearly did not accept the Appellants’ defences. He said at page 6 of his judgment:
“In my view, when piercing PW6's, PW14's, PW1nd PW17's evidence together, they all point to the inevitable conclusion that both accusedsuseds
participated in the robbery that occurred at Thomas Cook on 26th February 2000, after 8.30am. I find on the evidence that the prosecution
has proven Count No. 2 (i.e. robbery with violence) beyond reasonable doubt and I find both accuseds guilty as charged.”
This was a conclusion the learned Chief Magistrate was entitled to come to. He found, having rejected thernative hypothesis offered
by the Appellants, that their geir guilt was an inevitable conclusion. He did not err in law and this ground is dismissed.
The Acquittal on Count 2
The only evidence of Unlawful Use of Motor Vehicle was the evidence that the 1st Appellant was ally sitting at the wheel of a white
van half an hour before tore the robbery. Was it the van stolen from Gobardhan in which glass was later found? We do not know. Although
the circumstances were indeed suspicious, the prosecution had not proved Count 2 beyond reasonable doubt on this piece of evidence
alone. What was merely a thread in the cable of evidence in respect of Count 2 was not enough to discharge the burden of proof on
Count 1. The evidence in support of Count 2, did not lead inescapably to guilt on Count 1. As such the learned Chief Magistrate was
right to acquit on Count 1 despite his finding on Count 2. This ground is also dismissed.
Lack of Legal Representation
Counsel submitted that the 2nd Appellant was prejudiced by the absence of a lawyer. The record shows tha20th April 2000 both Appellppellants
were legally represented. After many adjournments, on 5th March 2001, both Appellants elected Magistrates Court trial, in the absence
of counsel. It is not clear why they were no longer represented by counsel but counsel last appeared on 11th July 2000.
The Appellants not only had the opportunity trepresented by counsel, but they were represented by counsel and opted to proceed to
trial rial without legal representation. I consider that they had waived their constitutional right to counsel in these circumstances.
However, although the court was entitled to proceed without counsel, it had a duty to ensure that the Appellants were not prejudiced
by lack of legal representation.
Counsel for the State conceded that the matters raised by the Appellants at theal, would probably have been raised at trial if the
Appellppellants had been represented. Metuisela Koroi would have been asked if he had had a hand in the robbery, and why he did not
give the foreign currency to the police when he received it on 27th February.
Sgt. Marika Nasegai would have been asked why it took him three days to she clothing for analysis. It would have been suggested on
c on cross-examination that the police had ‘framed’ the Appellants. The Government Analyst would have been cross-examined on the
veracity of her tests, and on how conclusively she could link the glass fragments.
In McInnis -v- The Queen [1979] HCA 65; (1979) 143 CLR 575, Mason Jhe High Court of Australia, said at p.583:
“The question is primarily to be resolved by looking to the nature and strength of the Crown case and the nature of the defence which
is made to it. If the Crown case is overwhelming, then the absence of counsel cannot be said to have deprived the accused of a prospect
of acquittal. If the accused in such a case has prosecuted his defence with skill, that may constitute some confirmation that conviction
was inevitable in any event. But if the Crown case is less than overwhelming I have some difficulty in perceiving how in general
the conduct of the case by an accused who is without legal qualification and experience can demonstrate that, even with the benefit
of counsel, he had no prospect of an acquittal.”
As counsel for the 2nd Appellant submitted, this was a case of Robbery with Violence involving a large sum of money. It was a case
of cstantial evidence which reqh required skilful prosecution and skilful defence. At the end of the day, I am left with a serious
doubt as to whether the Appellants had a fair trial in the absence of counsel. I am left with a serious doubt as to whether their
various defences were properly put before the court.
For these reasons, and on this ground alone, this appeal succeeds. The convictions and sentences are quashed.
Re-trial
Taking into account the seriousness of the case, and the relatively short time which has lapsed since the offence was committed, I
consider that a re-trial should be ordered.
Conclusion
This appeal succeeds. A re-trial is ordered in respect of Count 1 for each accused.
Nazhat Shameem
JUDGE
At Suva
5th October 2001
Haa0065j.01s
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