The learned Magistrate referred correctly to the Turnbull principles on identification ((197QB 228), at page 5 of her jher judgment. In particular she said (at page 6):
“Where the quality of the evidence is good, the jury may safely be left to assess it, and may convict on that . Conversely, where
the quae quality of the evidence is poor, the judge should withdraw the case from the jury and direct an acquittal unless there is
other evidence which goes to support the correctness of the identification. The judge should tell the jury what evidence there is
which may support the identification.”
At page 7 the learned Magistrate directed herself as to the need to look for corroboration of the identification. It follows that
she thought the evidence was weak and required corroboration. She was right. PW1 did not explain why it was necessary to identify
the robber by build when he must have seen his face. It is not in evidence that the robber’s face was covered. Further the witness
had only one good eye and observed the robber’s build over a period of only two minutes. Although the identification parade was properly
conducted, the witness frankly said that he identified the robber by build only.
The learned Magistrate was right to direct herself to look for supportive evidence. She was however wrong to find it in the evi which
put the Appellant innt in a brown taxi in Samabula an hour or two before the incident. Corroborative evidence in identification cases
need not satisfy the strict test for corroboration. In R -v- Long (1973) 57 Cr. App. R. 871 evidence which supported the identification but did not amount to corroboration in the strict sense was permitted. In this case,
I do not accept that being seen in a brown (a very common colour in Fiji) taxi in Samabula two hours before the robbery, supported
the evidence that the Appellant committed the offence. The evidence might have been supportive if the Registration Number of the
car matched, but no one at the robbery scene was able to remember it. In the circumstances I consider that the learned Magistrate
erred in accepting this evidence as corroboration or supportive evidence and this ground of appeal succeeds.
Character
At the hearing of this appeal, I asked State Counsel to explain why he had cross-examined the Appellant on his previous convictions
when he gave sworn evidence. He said it was because the Appellant had put his character in issue by suggesting, at page 27 that Special
Constable Gonevou was a liar.
The record shows that State Counsel did not apply to cross-examine d character, and that the learned Magistrate did not specifically
rule that he could, althoalthough she did not stop him. Further in her judgment she did not direct herself on the issue, and there
is no reference at all to the evidence of previous convictions.
When does an accused person put his character in issue? Firstly when he himputs it in issue by suggesting that he has good character,
ter, and secondly when he has attacked the character of prosecution witnesses. Normally, an appeal court will not interfere with
the exercise of a judicial discretion to allow such cross-examination unless there was an error of principle or no material on which
the Magistrate/Judge could have properly exercised that discretion (Jenkins 1945 31 Cr. App. R. 1, 15.)
In Selvey -v- DPP (1970) AC 1 Cr. App. R. 591 Ackner LJ explained how the judicial discretion was to be exercised. He said that the trial judge must weigh the
prejudicial effect of the questions against the damage done by the attack on the prosecution’s witnesses and must exercise his/her
discretion to ensure that the trial is fair to prosecution and defence. The test of when the accused lost his protection against
cross-examination on character, was whether a deliberate attack was being made upon the conduct of a witness calculated to discredit
him wholly as a witness.
In Selvey the accused was charged with the buggery of a 21 year old man. In the course of the evidence of the complainant, the accused suggested
that the complainant was the sort of person who did sexual acts for money. The judge allowed cross-examination on the accused’s character.
On appeal, the House of Lords held that the cross-examination had been properly allowed.
In the course of his judgment Viscount Dilhorne referred to the case of Rex -v- Rouse (19KB 184, in which the court said that merely alleging that that the witness was a liar, was nothing more than a denial of the charge
and did not permit cross-examination on the accused’s character. At page 334, his Lordship said:
“Accordingly, when a man in the accused’s station of life uses such terms as “he is lyand “it is a lie” or even sven stronger expressions,
all that is generally meant is a denial of the truth of the case for the prosecution and not a real reflection upon the character
of a witness. So the first question that has to be considered is whether what has been said, amounts in reality to more than an emphatic
denial of the charge.”
That principle is directly applicable to the facts of this case. At page 23, the accused was cross-examining Waisea Gonev former Special
Constable) ble) about his evidence that he had seen the accused in a taxi in Samabula. The records reads as follows:
“Q: &nnbsp;; Where here am I from?
A:&n;"> p;&nbbsp;&nsp; &nsp; p; &nnsp;&&nsp; Don’t k/ow.
n lang=ENng=EN-GB>&-GB>
Q: & p; &nsp; &nsp; ;&nbpp; &nnsp;&&nsp; Kpan>Know me from ?here?
A: &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; Fpan>From Tamavua with the other civilians there.
span>
<< clap clap class=Less=Level1 vel1 stylestyle="tex="text-align: justify; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> Q: ;&nspp;&nssp; p; &nbp; &nbp;
A:GB>A: &nnsp;&&nsp;;&nspp;&nssp;&nsp;
The allegation of lying seems clearly to be nothing more than an emphatic denial of the prosecution case that the Appellant was seen
by the witness in Samabula in a brown taxi. There therefore appears to have been no material on which the learned Magistrate could
have exercised her discretion to allow the cross-examination she allowed, on page 27 of the record. Further, the record shows that
she did not exercise her discretion at all, and did not address the issue at all, in her judgment.
I find therefore that permitting the prosecution to cross-examine the Appellant s previous convictions with no cause, and in failing
to exeo exercise her discretion in the matter, the Magistrate made an error of law which resulted in a substantial miscarriage of
justice. This miscarriage of justice could have been minimised if she had directed her mind to the issue in her judgment, and had
said that she disregarded the evidence of character in her decision to convict. However she did not do so, and the result is that
there has been a real miscarriage of justice.
Conclusion
On the ground of unsatisfactory identification evidence, and on the ground that the Appellant’s previous convictions have been improperly
and unfairly admitted in evidence, this appeal is allowed. The conviction is set aside accordingly.
I have considered the question of re-trial and have taken into account the recent date of the offence, the nature of the evidenc the
length of time the Appe Appellant has spent in prison. In the circumstances and particularly because of the tenuous nature of the
evidence, I do not consider it just to order a re-trial. The Appellant’s conviction is wholly quashed.
Nazhat Shameem
JUDGE
At Suva
HAA0082j.01s
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