Basa v The State [2005] FJHC 260; HAA0059J.2005S (2 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0059 of 2005S

Between:

SAKIUSA BASA
Appellant

And:

THE STATE
Respondent

Hearing: 26th August 2005
Judgment: 2nd September 2005

Counsel: Appellant in Person
Ms A. Prasad for State

JUDGMENT

This appeal, against conviction and sentence on a charge of robbery with violence is 21 days out of time. The Appellant says that he did file an appeal petition in time, but that the Suva Magistrates’ Court lost his petition, and his father had to re-type another one. In fact, the record shows that his letter, dated the 23rd of February 2005 was not received by the Suva Magistrates’ Court until the 8th of April 2005. Nevertheless the learned Magistrate instructed the Registry to prepare the record for appeal. In the circumstances, I consider that the Appellant should be given the benefit of the doubt in relation to the date the appeal was filed. I grant leave to appeal out of time accordingly.

He was charged on one count of robbery with violence. The prosecution alleged that on the 9th of January 2005 at Samabula, he robbed James Wright of a bunch of keys and immediately before such robbery, threatened to use personal violence on him. He first appeared in court on the 11th of January 2005 and complained immediately of police assault. A medical examination was ordered by the court. He pleaded not guilty. The prosecution asked to have the complainant’s evidence heard early as he was a tourist who wished to return to Australia. His evidence was heard on the 8th of February 2005. He said that his father worked for Asco Motors as the General Manager. He said that he came home at 100 Princess Road on the 9th of January with his younger sister. On his return he saw two men coming up the driveway. One of them was the Appellant. The Appellant grabbed him. The other man grabbed his sister. They were pushed against a wall and the Appellant threatened both of them with a screwdriver. He poked the screwdriver into the complainant’s stomach. He asked them for cash but they had none. He took the house keys from the complainant’s hand and tried to open the car with the keys. The complainant’s sister screamed. Their parents arrived and threatened to call the police. The Appellant and his accomplice left. The record reads:

“I know it’s him – I recall his build and tattoos on both upper arms (identified). Dark green vest he wore. I recall his fair complexion, well-built. He walked up the driveway very fast. I recognise, its him.”

And later:

“I am certain it is this man – I am 100% sure of his face.”

The entire event occurred just after midnight. The lights were on. The complainant was 19 years old. The Appellant cross-examined him about the reliability of the identification but it appears that he remained unshaken.

The remainder of the trial proceeded immediately after the evidence of the complainant. The next witness was Peniasi Dranamada of Princess Road, Tamavua. He said that on the 9th of January 2005 at about 12.15am he was sitting on his driveway at 105 Princess Road when he saw two youths run out of the driveway of 100 Princess Road. He heard voices shouting for help. The witness ran up to the front of the complainant’s home and saw the Appellant running out of the driveway. They faced each other and the Appellant shouted, “if you come closer I will use this screwdriver.” He and his accomplice ran away. The witness stopped a van and chased them. The Appellant ran into one compound at Lakeba Street but came out again because there were some men there. He then ran to Komo Park where the witness managed to overpower him. A bunch of keys fell out of his hand. The witness arrested him. He said he knew the Appellant by face. He had tattoos on his hands and was wearing a green vest. The learned Magistrate noted that the identified tattoos were clearly visible in court. In the course of arrest, other police officers joined the witness and helped to overpower the Appellant. Under cross-examination the witness maintained his identification of the Appellant and denied assaulting him in the course of arrest. He handed the keys over to the police.

The next witness was Satoki Bulewai, a Special Constable. On the 9th of January 2005 at 12.30 he was at home in Lakeba Street, when he saw two men in his compound. They told him that they were looking for a man in relation to a robbery. One of them was PW2. The witness waited in front of his compound, and saw the Appellant as he came out of the compound. The witness followed him. He threatened him holding something silver like a rod. The witness hit him with a stick and he ran away. The witness identified the Appellant in the dock. He said that the Appellant was standing two feet away from him under a lamp post. He and PW2 chased him into Komo Park. They caught him and waited for the police. He tried to escape but they held him down, and later handed him over to the police.

The next witness was the police officer who arrested the Appellant and took him to the police station. He said that the Appellant was injured at that time. He also handed over the bunch of keys to the complainant who identified it. Under cross-examination he denied punching the Appellant. PW5 was another police officer, who seized the Appellant’s clothes on arrest. They were vest and pants. He also interviewed the Appellant under caution. The interview was read in court. In it the Appellant told the police that on the 8th of January, he went to see his girlfriend in a taxi. His brother was with him. He got off at a bus stop on Princess Road. He was then chased by three men who assaulted him. He said he was wearing a black t-shirt and white shorts, but that the t-shirt got torn off in the struggle in Komo Park. He denied that the green vest was his. He denied all the allegations in relation to the robbery. Because the Appellant alleged police assault, the leaned Magistrate held a trial within a trial. The witness said that the Appellant was injured when arrested by him, and produced his medical report. The report states that he had abrasions and swelling on the face and tenderness on his ribs. There was an abrasion on his left wrist. The report also records nil tattoos.

The Appellant’s charging officer then gave evidence. The charge statement was exculpatory. The Appellant gave evidence in the trial within a trial. He said that he was chased by the “boys” on his way to seeing his girlfriend. He was injured on his ribs and face and was later seen by a doctor. In his ruling, the learned Magistrate said that the Appellant’s injuries were caused by the chase and struggle which led to his arrest, that he was given a day to rest before he was interviewed and that the statement was voluntary.

The Appellant also gave sworn evidence in the trial proper. He said that on the 9th of January 2005 he was at home. His girlfriend told him to wait for her at the Lakeba Street bus stop. As he waited at Lakeba Street, he saw a police van coming towards him. It parked near him and a policeman and another man accused him of stealing from a house, and punched him. He ran away and they chased him. They took him to Komo Park and assaulted him. They then took him to Samabula Police Station and questioned him. His brother saw him being beaten on the road and the police officers chased him away. Under cross-examination, he said he did not know the complainant and did not know why he said that he identified him. He said many people had tattoos and that he did not know why the complainant should lie about him.

He called one Jack David Smith to give evidence on his behalf. He said that on the 9th of January, he was drinking with the Appellant. When his girlfriend called him, he dropped the Appellant off at the Tamavua bus stop and drove away. When he came back, the Appellant was in a police van. He was injured. He went with the Appellant to the Samabula Police Station and brought his parents and girlfriend to the Station. That night the Appellant wore a black t-shirt and pants. Under cross-examination, he said that they starting drinking at 10am and finished at 11.30. He left him at Tamavua and went to the bank at Samabula to take out money. He did not do well under cross-examination, stuttering and evading questions.

The Appellant also called his girlfriend Asenaca Senimere. She said she was at a party on 9th January and telephoned the Appellant between midnight and five minutes past. She said she was supposed to meet the Appellant at Tamavua bus stop. She did not respond when she was asked why she had chosen the Tamavua bus stop to meet her boyfriend.

Judgment was delivered on the 18th of February 2005. After reviewing the prosecution and the defence case the learned Magistrate analysed the identification evidence. He said that the complainant described the Appellant accurately and said that he was wearing a green vest and pants. He saw him at close range under the house lights when he was held by the neck and when the Appellant tried to start the car. The Appellant was also identified by PW2 as the person who ran out of the complainant’s driveway and who threatened him with a screwdriver. He was described as being fair, wearing a green vest and having tattoos on his arms. He followed him into PW3’s compound and into Komo Park. PW3 also identified him after seeing him under lamp light for 2 feet away. The learned Magistrate then said (at page 4 of his judgment):

“The accused has tattoos in upper arms, his green vest has been exhibited and identified. He is fair in complexion. The keys belonging to the complainant’s house with orange and video ezy tag [which] has been exhibited as Exhibit 2, was also found on the accused at the time of arrest and struggle. This has been identified by the complainant as his house keys and by the prosecution witnesses as found on the accused at the time of arrest.

The accused has been properly identified as the person who was at 100 Princess road that night.”

He then said he found the defence evidence to be unreliable and of little weight. He noted that the second defence witness was allegedly the Appellant’s girlfriend but that “the accused didn’t know her surname.” He then concluded that the Appellant had robbed PW1 and threatened him with a screwdriver. He found him guilty as charged. Sentence was delivered on the same day. The Appellant admitted 11 previous convictions. He refused to mitigate.

The learned Magistrate picked a starting point of 5 years imprisonment. He increased it to 6½ years for the lack of remorse shown, the invasion of privacy at the complainant’s home, and the use of the screwdriver. He reduced the sentence to 4 years imprisonment on the ground that no physical injury was inflicted and the only thing stolen was the bunch of house keys.

The grounds of appeal are that the learned Magistrate failed to properly assess the evidence, he relied on dock identification, he was biased, he failed to properly consider the defence case, and in particular his allegations against the police, and he failed to give the Appellant adequate time to prepare his defence. In relation to sentence, he said that the sentence was harsh and excessive and that the prison conditions were inhumane.

The State opposes the appeal. In her comprehensive written and oral submissions, State counsel said that there was no evidence of actual or apprehended bias towards the Appellant, that the learned Magistrate analysed all the evidence, that he considered the Appellant’s allegations against the police and rejected them, and that the Appellant had more than adequate time from the 11th of January to the 8th of February 2005, to prepare his defence. Indeed the record shows that the Appellant himself told the court that he was ready to proceed on the 8th of February. Finally State counsel says that the sentence was at the lowest end of the tariff for robbery with violence, and was not harsh or excessive.

Bias

There is no evidence of any actual or apprehended bias on the record. The proceedings were conducted with scrupulous fairness, and the Appellant appears to have been accorded all his due process rights. This ground is dismissed.

Analysis of the evidence and identification

The evidence against the Appellant came from several sources. Firstly, there was the evidence of the complainant that it was the Appellant who robbed him. Secondly, he was seen by PW2 to emerge from the complainant’s driveway immediately after the time of the robbery. Thirdly, he was carrying a screwdriver according to PW1, PW2 and PW3. Fourthly, he was apprehended carrying the complainant’s keys shortly after the robbery. And fifthly, there is evidence that he has tattoos which were identified by PW1. Thus, the evidence of identification which might not have been considered safe on its own, was amply corroborated by these other sources of evidence. The defence position was that the Appellant’s presence on Lakeba Street and Komo Park, was innocent. However, that position did not explain the Appellant’s possession of the stolen keys, or his presence on the driveway of the complainant, or his threatening acts with the screwdriver. There was compelling evidence to support the conviction, and the learned Magistrate correctly analysed that evidence. This ground is also dismissed.

Identification

Dock identification is usually frowned upon by the courts unless there has been another form of identification before the trial, such as an identification parade. This is because there is a real danger that a witness will identify the person in the dock on the assumption that the police arrested the right man. This is why counsel are expected to lay the proper basis of such identification before asking a witness if the offender is present in the courtroom.

In this case, the dock identification of the Appellant by the complainant would indeed have been manifestly unreliable in the absence of an identification parade. Although the incident had taken place only a month before the trial, the complainant did not know the Appellant, the incident took place at night and over only a short period of time. Thus, there were inherent dangers in the dock identification.

However, there was other evidence confirming the complainant’s identification of the Appellant. Firstly, there was evidence that the Appellant emerged from the complainant’s driveway at 12.15am (the time of the robbery) carrying a screwdriver. PW2, who also identified the Appellant, followed him from Princess Road, into Lakeba Street and then into Komo Park. There was no mistaking his identification of the Appellant. Further, the Appellant was identified by PW3 who saw him first at Lakeba Street carrying a silver “rod”, and later at Komo Park, the complainant’s keys. Finally, the complainant referred to the Appellant’s tattoos as a means of identifying him. Those tattoos were clearly visible to the Court notwithstanding the medical report which recorded no tattoos on the Appellant at all. In the course of his evidence, the Appellant himself admitted that he had tattoos, thus diluting the effect of the medical report in this regard.

The dock identification of the Appellant in this case had support from several sources. This diminished the inherent dangers in dock identification evidence. This ground is also dismissed.

Police assault

The Appellant alleges breaches of his Constitutional rights in his arrest and subsequent questioning. The learned Magistrate quite correctly conducted a trial within a trial to determine the admissibility of the caution statement. The statement was in fact exculpatory because the Appellant denied the allegations put to him. The prosecution need not have tendered the statement at all, and if there were breaches of his rights, he was thereby not prejudiced because he made no admissions.

Nevertheless, the learned Magistrate found as a matter of fact that the injuries found on the Appellant were caused when he was arrested after trying to evade arrest. Those injuries were superficial and could have been caused in the course of the arrest. The Court’s findings in this regard could not be lightly interfered with by an appellate court.

This ground of appeal is also dismissed.

Adequate time to prepare

The Appellant was arrested on the 9th of January. He was given a day to “sober up” and rest, before he was interviewed over a period of almost two house. He was charged on the 10th of January and brought to court on the 11th of January. He was medically examined on the same day. He was remanded in custody until the 25th of January. On the 25th, it appears that bail was refused again. On the same day the court said it would hear the evidence of the complainant on the 8th of February. However on that day the record reads:

“Court: Are you ready for hearing?

: Yes.

Court: Do you represent self?

: Yes. I will call my wife as witness. No need for Doctor. Medical report with prosecution. Ready to proceed.”

The trial proceeded later in the morning. The record shows that the Appellant dispute identification, cross-examined on the circumstances of it, and disputed his presence at the complainant’s house on the 9th of January. His defence was articulated clearly and ably. He was able to give evidence himself (twice) and to call two witnesses. His appeal in this court raises the same issues he raised at the trial. This suggests that more time given to him, would not have altered the way in which his defence was conducted.

A trial which is conducted, and completed only a month after the alleged offence was committed is a refreshing and welcome event. I do not consider that the Appellant was in any way prejudiced by his early hearing date, and consider that he was given adequate time to prepare for trial.

This ground is dismissed.

Sentence

The learned Magistrate’s approach to sentence in this case was correct in principle. The 5 year starting point was also correct because of the low value of the item stolen and the lack of actual violence or premeditation. Similarly his scaling for mitigating and aggravating factors was correct in principle, as was the final sentence he arrived at.

It is time that those who commit offences of robbery on members of the public, and particularly on those who wish to enjoy the privacy and security of their own homes, realise that they will be given deterrent sentences. They are tired of living in fear, fenced in by burglar bars and electric gates, and of being intimidated by those who do not wish to earn their living honestly and legitimately. The Appellant’s 4 year term was correct in principle and not excessive.

Result

This appeal is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
2nd September 2005