IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0022 OF 2003

Between:

STATE
Appellant

And:

TOMASI YABAKIONOMAI IGILADI
Respondent

Counsel: Mr. B. Solanki for State
Mr. A. Singh for Respondent

Hearing: 22nd August 2003
Judgment: 3rd September 2003

JUDGMENT

This is an appeal by the Director of Public Prosecutions against the acquittal of the Respondent on the following charges:

FIRST COUNT

Statement of Offence

OFFICIAL CORRUPTION: Contrary to section 106(a) of the Penal Code, Cap. 17.

Particulars of Offence

TOMASI YABAKIONOMAI IGILADI on the 7th day of October 2001 at Suva in the Central Division, being a person employed in the Fiji Police Force and being charged with the performance of that duty of a Police Officer by virtue of that employment, corruptly obtained the sum of $50 on account of omitting to charge LOIS DICKINSON for the offence of careless driving.

SECOND COUNT

Statement of Offence

ANNOYING FEMALES: Contrary to section 154(4) of the Penal Code, Cap. 17.

Particulars of Offence

TOMASI YABAKIONOMAI IGILADI on the 7th day of October 2001 at Suva in the Central Division, with intent to annoy LOIS DICKINSON, uttered words intending that such words shall be heard by LOIS DICKINSON, which offended her modesty.

The charges were first laid in November 2001. The Respondent pleaded not guilty on both counts on the 16th of November 2001. The trial commenced on the 10th of April 2002. Lois Dickinson gave evidence that on the 7th of October 2001, she was staying at the Suva Motor Inn. At 7.15pm she went out to buy food. She saw a policeman on the footpath along Victoria Parade. She drove through Gladstone Street. A policeman in uniform then came in a taxi and stopped her saying she was drunk and that he wanted to charge her with careless driving, drunk driving and failing to stop. He got into her car and told her to drive to Gladstone Street. The evidence then reads as follows:

“The police asked my name. I told him my name. He asked me where my husband was. I said I didn’t have a husband. He asked me why. I said I don’t have one. He told me I need an escort. I said I didn’t need one, as I had friends. He asked me how long it took to travel from New Zealand. I said 3 hours. He told me I was tired and I needed a massage. I told him I didn’t need one.”

He asked again if she needed a massage. She refused and he said he did not want to prosecute her. He asked her for her name and number. She told him but deliberately gave him the wrong number. He recorded this in his notebook.

He then asked for $70 and she gave him $50. He took the money and said she could go. He then got off the car at Ratu Sukuna House. She returned to the Suva Motor Inn and complained to Ms Fenton at Munro Leys and Associates the next morning. She also reported the matter to the police. She identified the Respondent at an identification parade.

In cross-examination, she said that she had described the Respondent as a man of medium build and of dark complexion. She said that she was irritated and annoyed by the policeman’s behaviour. She said that she had been with the policeman in her car from approximately 7.15pm to 8.15pm.

The trial continued on 22nd July 2002. Special Constable Leone Masitabua gave evidence. He said that on 7th of October 2001, he was on street patrol around the Government Buildings area at 7.10pm, when he saw a black private car parked on Gladstone Road facing the police post. He saw the Respondent getting into the car. The witness called out to him as “Yanu”, his nickname, but the person did not respond. The private car went down Gladstone Road. He said he had known the Respondent for 3 years, and that he recognised him. Under cross-examination his recorded answers were as follows:

“A:	It was 7.10pm. I am positive. I had a watch. I saw the time as 7.0pm. It was a long work hours from 7am to 11pm. I consumed yagona with the community of the Suva South Police Post.

A:	I started drinking yagona at about 6pm. I saw Tomasi. There is a spot light in front of the Police Post. Tomasi came by taxi. Tomasi was going towards a private car. He was 20 metres away from me. He opened the passenger side door and hopped in. I didn’t see anything else.

A:	I know there was a driver in the vehicle. I didn’t see the driver. The vehicle was tinted. Tomasi was like, from this witness box to the Government Buildings main gate. I used to call him “Yanu.” He used to respond. I was surprised he didn’t respond.

A:	I didn’t mistake it to be Tomasi. The visibility was clear. I record my departure in my note book. I didn’t enter the above in the police post diary.

A:	Tomasi sat in the front passenger seat of the car. I am positive of that.

Q:	You made a mistaken identity?

A:	Yes.

A:	The person I saw was in police uniform.”

The next witness was Sgt. Sukulu Cavu who interviewed the Respondent. In his interview, the Respondent told the police that on the 7th of October 2001 he had been on orderly duty at the Victoria Police Post and that he had gone to the Central Police Station at 7.15pm. He said that prior to that time he had been on patrol and that he had not interviewed any person as alleged. He said that his movements had been recorded in his notebook. He then handed his notebook to the interviewing officer. It was suggested to him that the entry in the notebook was inconsistent with the entry in the Victoria Station Diary which showed that the Respondent’s reliever reported for duty at 8.15pm. The Respondent said that since he did not have his watch with him at the time, the times recorded were not accurate. He denied speaking to PW1, and said that the identification of him by both witnesses was mistaken.

Sgt. Cavu said that he checked the Respondent’s notebook and found that at 7.45pm the Respondent had recorded that he had been at the Central Police Station. The entry was witnessed by one Cpl. 1312.

IP Ram Jattan then gave evidence that he had conducted the identification parade and that PW1 had identified the Respondent in it.

Sgt. Kishore Kumar gave evidence that the Respondent had given a further interview after the parade in which he continued to deny the allegations. Finally IP Vakataura gave evidence that he had formally charged the Respondent.

The learned Magistrate then found a case to answer. The Respondent made an unsworn statement saying that he was at the police station at 7.45pm. He called no witnesses. On 31st December 2002, the learned Magistrate acquitted the Respondent saying that he would give reasons later. These reasons were provided on 9th January 2003. The reasons were that there was no corroboration of the evidence of PW1 on Count 2, that the Respondent had maintained his denials throughout the investigation process, that the Respondent’s notebook confirmed these denials and that PW2 had admitted that he had been mistaken in the identity of the person getting out of PW1’s car. He concluded:

“After carefully examining and comparing all the evidence, I have come to the conclusion that the prosecution has failed to prove the accused’s guilt on both counts beyond reasonable doubt. I am left with a lot of doubt on the accused’s guilt. The benefit of that doubt must go to the accused. I therefore dismiss the charges against the accused and acquit him accordingly on both counts.”

The appeal

The grounds of appeal were originally as follows:

“(a)	That the learned trial Magistrate erred in law and in fact when he acquitted the Respondent of the two counts;

(b)	That the learned trial Magistrate erred in fact when he failed to consider or give appropriate weight to the prosecution identification evidence.”

On the 23rd of July 2003, the Director filed an additional ground of appeal, that “the learned trial Magistrate erred in law when he admitted the police notebook belonging to the Respondent as evidence through a prosecution witness.”

Further, counsel for the State sought to supplement the court record to the effect that when the second prosecution witness was asked “you made a mistaken identity?” the answer was “no.” Such additional evidence was filed by motion and the affidavit of the witness himself. Annexed to the affidavit of the witness were the notes made by the prosecutor which confirmed that the answer was “no.”

However when the matter was referred to the learned magistrate he said he maintained that the answer given was “yes.” The application to adduce further evidence was therefore refused.

Ground 1

The entire case depended on the identification evidence of PW1 and PW2. Objectively, such evidence was likely to be reliable because PW1 said she spent an hour with the Respondent in her car, on a well-lit city road, and PW2 said he recognised the Respondent in circumstances which supported PW1’s identification. However the learned Magistrate found a reasonable doubt arising from the notebook entry.

Assuming that the notebook was correctly tendered, the entry showed that the Respondent was already at the Central Police Station at 7.45pm, and that another officer had verified the time and the entry. The learned Magistrate did not refer to the Respondent’s statement under caution in which he said that his recorded times were inaccurate because he did not have a watch. However, even allowing for such inaccuracies and assuming that the entry was correct the Respondent could not have been with PW1 for an hour if he was at the station at 7.45pm. The notebook entry was clearly inconsistent with PW1’s evidence.

Further, PW2’s evidence that he saw the Respondent at 7.10pm was inconsistent with the Respondent’s statement to the police that he did not get into a private car that evening and that he had remained at the Police Post until 7.15pm.

The notebook entry was therefore crucial. If it had been made solely by the Respondent, it would have been a previous consistent statement which was self-serving and only relevant to show the Respondent’s conduct after the alleged incident. However the endorsement by the Respondent’s non-commissioned officer, Corporal 1312, gives it additional weight. It certainly lent credence to the Respondent’s alibi.

The prosecution did not call the Corporal to explain the circumstances in which he signed the note-book. Of course the defence could have called him, but the defence did not have to prove anything. The learned Magistrate came to the conclusion that the notebook entry, which had been witnessed by an independent senior officer, lent credence to the defence and that he therefore had a reasonable doubt as to the Respondent’s guilt.

In the circumstances such a finding of fact was not perverse on the facts of this case. Despite the strong identification evidence, and considering PW2’s evidence that he was mistaken when he identified the Respondent, I do not consider that he erred.

This ground does not succeed. For the same reasons the second ground also fails.

The notebook

As a general rule, police notebooks are memory-refreshing documents, and are not admissible unless it is alleged that police officers were falsifying their contents (R –v- Bass (1953) 1 QB 680).

In R –v- Sekhon 85 Cr. App. R. 19, one police officer kept an observation log based on his own observations and those of other police officers reporting to him. The Court of Appeal held that such a log, which was a memory-refreshing document, must be available for inspection by other parties for the purpose of cross-examination, and where it was suggested that the witness was making up his evidence and had concocted his notes, the notes might be admissible to show consistency. Generally however, the notes are not admissible to prove the truth of their contents and are relevant only to credibility.

This case is however quite different from those cases where witnesses seek to use their notes to show consistency. Here the notebook was actually consistent with the Respondent’s defence. Firstly, it did not contain PW1’s name and (incorrect) telephone number. Secondly it recorded that the Respondent was at the Central Police Station at the time when PW1 said that he was sitting in her car.

The notebook was not a memory-refreshing document in this case. It was an important piece of evidence which the police rightly seized, and which was rightly exhibited by the prosecution. It is of course the prosecution’s duty to put all the relevant evidence before the court, or at least to make it available for the defence to do so.

Ground 3 also fails.

Result

For the reasons given in this judgment the State’s appeal against acquittal is unsuccessful and is dismissed.

Nazhat Shameem
JUDGE

At Suva
3rd September 2003