THE STATE Respondent
Counsel: 1st Appellant in Person
Mr N. Shivam for 2nd Appellantllant
Mr T. Fa for 3rd Appellant
Mr T. Romanu for Respondent
Hearing: 26th October 2001
Judgment: 16th November mber 2001
JUDGMENT
&nbB>
The three Appellants were jointly charged on two counts of Robbery with Violence, and one count of Office Breaking Entering and Larceny.
They were convicted after a trial and sentenced on 21st of June 2001 to 5 years imprisonment each. They now appeal against those
convictions.
The charges read as follows:
  FIRST COUNT
p class=MsoN=MsoNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> Statement of Offencen>
ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code, Cap. 17.
p class=MsoN=MsoNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> Particulars of Offence
JOSEFA TALE, WAISEA KALOUMAIRA, SULIASI SIVARO with others on the 19th day of November 2000 at Kadavu Island in the Southern Division
robbed ROBERT FORSTER of assorted jewelleries valued $22,000.00, American cash $400.00, Australian cash $300.00, Fijian cash $1,200.00,
assorted watches valued $1,000.00, 3 Swiss army pocket knives valued $330.00, one Organ valued $120.00, Binoculars valued $500.00,
Samsung Camera valued $350.00, Torch valued $60.00, assorted clothes $200.00, Air Rifle valued $80.00, Cassette recorder valued $100.00,
Leather Handbag valued $100.00, Passport, Credit Card, Driving Licence valued $200.00 to the total value of $26,940.00 and at the
time of such robbery did use personal violence to the said ROBERT FORSTER.
p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> SECOND COUNT
< Statement of Offence
/p>
ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code, Cap. 17.
Particulars of Offence
JOSEFA TALE, WAISEA KALOUMAIRA, SULIASI SIVARO with others,he 19th day of November 2000 at Kadavu Island in the Southeouthern Division
robbed ARUN KUMAR s/o Ram Samuj of cash $60.00 and at the time of such robbery did use personal violence to the said ARUN KUMAR s/o
Ram Samuj.
THIRD COUNT
Statement of Offence
OFFICE BREAKING ENTERIN LARCENY: Contrary to section 300(a) of the Penal Code, Cap, Cap. 17.
Particulars of Offence
1">
JOSEFA TALE, WAISEA KALOUMAIRA, SULIASI SIVARO with others on the day of November 2000 at Kadavu Island in the Southern Divi Division
broke and entered the office of Dive Kadavu Resort and stole from therein cash $1,290.00, assorted jewelleries valued $5,600.00,
3 wallets valued $380.00 to the total value of $7,270.00 together with the travellers cheque valued $USD880.00 the property of Dive
Kadavu Resort.
The grounds of appeal are similar in respect of each Appellant and may be summarised as follows:
1. ;&nbssp; &bsp; &nbbp; &nbssp; Tpan>The learned Maed Magistrate erred nding that this was not a case of “fleeting glance” identification;
2. p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;&
ass=L stylxt-indent: -35.45pt; margin-left: 70.9pt; margin-top: 1; marg margin-boin-bottom:ttom: 1"> 1"> 3. & &nsp; &nbssp; &nbssp; Tpan>That that the learned Magistrate erred in accepting the dock identification of the Appellants by PW1 and PW2 when there was no
idenationde;
4. & p; &nsp; &nsp; ;&nbpp; &nnsp;&&nsp; In respfct o 3the 3rd Appellant Suliasi Sivaro, the learned Magistrate erred in refusing to hold a voir dire in respect of his interview;n> 5. &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;&nsp; &nbp; sp re ofcthe 3rd Aprd Appellant the learned Magistrate erred in rejecting his sworn evidence that he was not an accomplice;
: 1"> 6. &nbssp; &nbssp; &nbp; &nbs; sp re of the 1st Apst Appellant, that the sentence was harsh and excessive.
The facts
The evidence led by the prosecution revealed a brutal and carefully planned robbery on the owners and staff of a hotel resort in Kadavu
called the Dive Kadavu Resort.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Robert Forster the Director of Dive Kadavu gaveence that on the 18th of November 2000 after 1am he was in bed, and his wife was reading
inng in bed, when four men burst into their bedroom armed with knives, pinch-bar and screwdriver. Three of them had balaclavas covering
their faces. One had his head covered and his face exposed. Two of them jumped on him and stuck a knife at his throat. The others
attacked his wife and threatened to rape and kill her if she did not give them money. The men ransacked the room and took everything
valuable in it. They tried to remove his wife’s jewellery as she lay in the bed. She resisted and pulled down the mask of the person
leaning over her.
The room was lit by a bedside lamp which was bright. Robert Forster said that the was well-lighted. He identified the person who did
not havt have his face covered as the third accused (the 3rd Appellant). He said that he saw the face of the person leaning over
his wife. He identified the man as the first accused (the 1st Appellant).
The men were in the room for half an hour. They heard the electrician Arun Kumar out from the next room, and they ran to the room
and beat heat him up. Arun Kumar was not able to identify anyone. He later found his wallet missing. It had air tickets and $50 to
$60 in it.
Nerdna Forster’s evidence corroborated that of her husband’s. She also identified the 3rd Appellant and the 1st Appellant. However,
she also said that as the 2nd accused (the 2nd Appellant) left the bedroom and went to the verandah he pulled his mask off and she
saw his face. She identified the 2nd Appellant in the dock.
The injuries suffered by the three witnesses were contained in their medical reports. Robert Forster had a 2-3 inch bruise on the
chest consistent with assault by a screwdriver. Nerdna Forster had multiple injuries including a broken leg, a fractured cheek bone
and injuries to the chest. Arun Kumar had a swollen face, tender chest wall, and rope mark around his neck. The total value of the
stolen goods on Count 1 was $26,940.00. On Count 2, the total amount stolen was $60.00. On Count 3 the total missing was $7,270.00.
It was clear from the evidence, that whoever committed the offence on Count 1, had also committed Count 2 and Count 3.
An employee of the Resort, Apakuki Ceula, gave evidence that between 1.30am and 2.00am that night he saw feople coming down from the
the Resort towards Vunisea. He followed them and later heard the sound of an outboard motor going towards the open sea. He went
to the resort and found the Forsters and Arun Kumar tied up and injured.
A witness Yee Sigi gave evidence that he showed one “Aminiasi” and five others, the boss’s room at the Divevu Resort. He did not identidentify
any of the Appellants.
The caution interview of the 1st Appellant was tendered. In cross-examination it was suggested to the interviewing officer Sergeant
Eparama, that he had assaulted the Appellant and forced him to confess to the crimes. He said the statement was voluntary. Corporal
Remesio gave evidence that he interviewed the 2nd Accused and that he refused to answer any questions. He denied assaulting the 3rd
Accused and said that he had resisted arrest thus receiving injuries.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Sergeant Sakiusa Nakalevu gave evidence that he attended the report of the robbery and found a screwdriver, caps and a black bag about
150 metres from the Resort, and a watch and gold bangles on the beach.
The 1st Appellant gave evidence which was consistent with his caution statement. He said that he went to Kadavu from Suva after 2pm
on the 18th of November with some men in a boat. He said one was Vilikesa Buadromo. He said he waited at Kadavu while the others
went away. There were 6 of them altogether. They all got off the boat at a beach and went up a footpath towards a Fijian bure. He
waited outside the bure while the others went in. He heard some screaming. They returned. They boarded the boat and returned to Suva.
He said he was later arrested by soldiers and the police and that he was assaulted at the Central Police Station. He said he was
kept in custody from 7am on the Sunday morning to the following Wednesday when he was taken to court. He said he did not make a statement
and that he was forced to sign a statement made up by the police. Under cross-examination, he said the 3rd Appellant was not with
them in Kadavu.
His caution interview which had been admitted in evidence b learned Chief Magistrate, gave a clear account of how the robbery was
planned. He denied pied participating in the offence, but later admitted it. He said that he with four others (including the 2nd
and 3rd Appellants) boarded a boat at the fish market. He said when they reached Kadavu, Vilikesa got off the boat and fetched another
youth from the island. The boat then stopped at another place and they all got off except for one Waisele. They went to the hotel
and he said he remained outside on the steps with one youth from Kadavu. He said he heard the European man scream and then a bag
was passed to him by the 3rd Appellant. He said the others then went to the office while the 3rd Appellant guarded the European man.
After 15 minutes another bag was passed to him. They then ran to the boat with people from the village in pursuit. They then went
back to Suva. He said the items stolen included money, cigarettes, a radio and a gun which they threw into the sea. He was arrested
at the Trade Winds Hotel.
In his judgment the learned Chief Magistrate correctly directed himself on the dangers ofal identification evidence, referring to
the Turnbullnbull ((1976) 3 ALL ER) guidelines. He said that the identification of the 1st and 3rd Appellants was done after the men had been in the
room for approximately 25 minutes with a bright light on. He said that the identification evidence of Robert Forster was corroborated
by that of Nerdna Forster.
At page 12 of his judgment he stated that an identification parade was never held and that the onlyence against the three accused
was the dock identification tion evidence of PW1 and PW2. In the case of the 2nd Accused, the only evidence was the uncorroborated
dock identification of PW2. However he accepted the identification because of the length of time the robbers spent in the room, the
lighting in the room, the distance between the 1st Accused and the witnesses and the fact that there was no impediment between the
robbers and the witnesses. He relied also on the 1st Appellant’s admission on oath that he was at the scene (outside the bure) at
the time the offence was committed. He said (at p.16) “I reject accused No. 1's assertion that he knew nothing about this robbery.
Why would a person take the trouble to travel by fibre glass boat from Suva, risking death on the high seas to a Resort in Kadavu,
to merely “sit outside a bure? In my view, Accused No. 1 came to Kadavu to commit the alleged crimes.”
The 1st Appellant
The evidence against the 1st Appellant was the evidence identifying him as the person whose balaclava waled down by Nerdna Forster.ster.
This evidence was given by Robert Forster and Nerdna Forster. The other evidence against him was his own statement to police in which
he admitted travelling to Kadavu with four men, and his sworn evidence making the same admission.
The evidence of identification of the 1st Accused was not satisfactory.Chief Magistrate conceded this. There was no identification
parade. The witnesses identifietified the Appellant in the dock several months after the event. The Appellant’s face was covered
by a balaclava until Nerdna Forster pulled it down. It is not clear whether the balaclava remained pulled down thereafter, and for
how long before the robbers left.
In the circumstances it was the sort of identification evidence which should warn the Magistrate or Judge that corroboration ought
to be o be looked for, to support it. In the case of the 1st Appellant, his identification by Robert Forster was corroborated by
the evidence of Nerdna Forster. Further, the sworn evidence of the 1st Appellant corroborated the identification evidence because
he admitted he was at the scene (albeit outside) at the time of the robbery. That evidence came from an independent source and implicated
the Appellant in a material particular in respect of the offences charged.
In these circumstances, the learned Chief Magistrate did not err when he accepted the evidence of ification of the 1st Appellant,
of Robert and Nerdna Forsterrster. This ground fails.
The 1st Appellant also submits that his caution interview was wrongly admitted. It is correct that the learned Chief Magistdid not
follow the suggestegested procedure for a voir dire in the Magistrate’s Court in Vinod Kumar -v- The State Crim. App. No. AAU0024 of 2000S. In that case the Court of Appeal said that following a direction to all Magistrates by the Chief
Justice, a procedure should be followed for determining the admissibility of confessions. The Court said (at p.2):
“After all witnesses for the prosecution have been called the defenda to be given the opportunity to give evidence if he wishes shes
exclusively on the taking of the caution statements. He can then be examined and cross-examined only on matters concerning the taking
of the statement. The defendant may also call witnesses to give evidence before the Court exclusively on the taking of the caution
statement. This procedure contains an important safeguard for an accused person. An accused may give evidence as to the admissibility
of the statement without losing the right to make an unsworn statement from the dock or to decline to give evidence in the case generally.”
The Chief Magistrate did not follow this procedure. However, the caution interview was only significant in that the Aant admitted
that he knew wnew what the others were doing inside the Resort, and took bags passed to him by the others as he waited outside. In
all other respects his sworn evidence was similar to his interview with the police and it was his sworn evidence which the Chief
Magistrate relied on. In the circumstances I do not consider the admission of the interview to have been prejudicial to the Appellant.
His interview insofar as it named the 2nd and 3rd Appellants could not be considered as evidence against them, and the learned Chief
Magistrate rightly did not refer to them, or rely on them, in his judgment.
The 1st Appellant’s conviction was therefore safe in law and his appeal against conviction fails.: 1">
The 2nd Appellant
The only evidence against the 2nd Appellant was the identification evidence of Nerdna Forster. It was clearly of the “fleeting glance”
variety. His face was covered with a balaclava in the room, and it is only when he left to go to the verandah, that he pulled it
down. She said (at page 37 of the record):
“The 2nd accused, when he was leaving the room, in the verandah, he pulled off his mask, I saw his face.”
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Under cross-examination she said:
“I saw Accused No. 2 leaving the room towards the verandah, where he lifted his balaclava. I saw the whole of his face and I will
never forget it. I was 3 feet from the window. The person was about 8 to 9 feet away. The light was shining on his face. The lamp
was 60 watts. He pulled the balaclava off. It was hot. I could recognise the guy beyond doubt.”
This was a dock identification. There was no identification parade. There was no other evidence corroborating the eviden Nerdna Forster
in this regs regard. She could only have seen him for a short while.
This was the sort of identification evidence that Turnbull (supra) was intended to address. In a trial by asrs, it was the sort of iden identification that would be withdrawn from the assessors
in the absence of corroboration.
In the circumstances I find that the learned Chief Magistrate was wrong to convict the 2nellant on the uncorroborated evidence of
Nerdna Forster. Her. He did not warn himself of the dangers of convicting on her evidence without corroboration. Nor did he direct
himself that an honest witness can be mistaken in his or her identification of the accused. The conviction of the 2nd Appellant is
unsafe and I quash it accordingly.
The 3rd Appellant
ass=MsoNormal styl styl style="margin-top: 1; margin-bottom: 1"> The identification evidence of the 3rd Appellas much more reliable. Firstly the witnesses watched him for a 30 minute period. Secondly
hily his face remained uncovered for the whole period. Thirdly, the evidence of Robert Forster is corroborated by the evidence of
Nerdna Forster. Taking all these matters into account, together with the evidence of bright lighting and the small size of the room,
the evidence of identification of the 3rd Appellant was strong enough and reliable enough for the Chief Magistrate to convict upon
it. This is so despite the failure of the police to hold an identification parade. I note that the learned Chief Magistrate did not
warn himself of the possibility that the witnesses, no matter how honest, might be mistaken in their identification. The Privy Council
in Scott -v- R (1989) 89 Cr. App. R. 153 said (at p.163 - per Lord Griffiths):
“.... if convictions are to be allowed upon uncorroborated identification evidence there must be strict insistenon a judge giving
a clear wear warning of the danger of mistaken identification which the jury must consider before arriving at their verdict and it
will be in the most exceptional circumstances that a conviction based on uncorroborated evidence should be sustained in the absence
of such a warning.”
In this case the learned Chief Magistrate did (at page 34) refer to the Turnbull guideline on mistaken though honest witnesses. Further, the evidence of Robert Forster and Nerdna Forster corroborated each other.
Finally, the evidence was generally of good quality and arguably did not require corroboration at all.
The learned Chief Magistrate therefore did not err in convicting the 3rd Appellant on all three counts. The appeal by the 3rd Appellant
against conviction is dismissed.
Sentence
Only the 1st Appellant appealed against sentence. He was sentenced to 5 years imprisonment on Count 1, 1 year on Counand 1½ years
on Count 3. He3. He ordered all sentences to be served concurrently.
The sentence of 5 years imprisonment for an offence of Robbery with Violence, of this nature is well within the tariff. Indeeden the
violence used and thnd the value of the property stolen, a higher sentence might have been justified. The 1st Appellant submits that
his pre-trial period of remand ought to have been taken into account. At the time of trial, he had been in remand for some 7 months.
In the circumstances of this case, a term of 5 years imprisonme already on the lower scale of the tariff for Robbery with Violence.
Further the 1st Appellppellant asked the learned Chief Magistrate to take into account his period of remand, and the Chief Magistrate
said, in his sentencing remarks, that he had taken into account all that had been said in mitigation.
I do not consider that the sentence passed was harsh or excessive or wrong in principal. The appeal against sentence is dismissed.
Summary
The appeals by the 1st and 3rd Appellants fail and are dismissed. The appeal by the 2nd Appellant succeeds. His conviction is quashed.
No re-trial is ordered, because of the tenuous nature of the identification evidence.
Nazhat Shameem
JUDGE
At Suva
16th November 2001
HAA0078j.01s
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