State v Wainiqolo [2006] FJHC 50; HAC015.2004S (18 July 2006)

IN THE HIGH COURT OF FIJI
AT SUVA

Crim. Case No: HAC015.2004S

THE STATE

V

SEMISI WAINIQOLO

Fiji High Court, Suva
17th, 18th July 2006
Gates J

RULING

Close of prosecution case; consideration of evidence that Accused committed offences; identification evidence; whether slender, unreliable, and unsupported; showing witnesses a selection of photographs to obtain lead; identification parade thereafter; witnesses not held beforehand in separate rooms.

Counsel:
Mr A. Rayawa for the State
The Accused in Person

In absence of assessors

[1] The prosecution has closed its case. Since the Accused is conducting his defence on his own without the assistance of counsel, it is necessary for me to consider whether there is evidence that the Accused committed the offences charged in the information [section 293 Criminal Procedure Code].

[2] In considering whether the State has adduced evidence of each element of the offences, the court must be satisfied at this stage in the trial that there is evidence available also to establish the identity of the Accused in connection with the offences. Galbraith (1981) 73 Cr. App. R. 124, [1981] 1 WLR 1039; Daley v R (1994) 98 Cr. App. R. 447.

[3] In order that section 293 of the CPC be satisfied there must be available for consideration by the assessors, evidence which is to be considered as more than "no evidence", in the sense no evidence that it was the Accused who had committed the offences.

[4] The test at this stage is not whether the identifying witnesses are lying but whether, even if the witnesses are palpably honest, the foundation of that evidence "is so slender that it is unreliable and therefore not sufficient to found a conviction": Daley (at p.454). If the identifying evidence is poor or unsupported, the court must consider withdrawing the case from the assessors: Turnbull [1977] QB 224.

[5] In this case the Accused is charged with two counts, namely robbery with violence and unlawful use of a motor vehicle. The vehicle was stolen by unknown persons from the Forestry Department at Nasinu 9 miles in the early hours of 1st May 2004. It was thought to have been used in a robbery on the R.B. Patel Supermarket at Centrepoint at closing time 7.30 pm on the same day.

[6] The evidence clearly shows an unauthorised and unlawful taking of the vehicle, a white twin cab GN140 from the Forestry premises. The men who were masked attacked the night watchman prior to driving off in the vehicle. However there has been no evidence identifying this vehicle positively as having been used at the robbery scene. Even if one were to accept identification of the Accused within the supermarket, there is no linking evidence of his being in the stolen vehicle. Accordingly I must withdraw count 2 from consideration by the assessors and direct a verdict of not guilty on that count.

[7] I come now to consider the evidence of the two witnesses who say they positively identified the Accused. I bear in mind the guidelines of Turnbull and observations made in Weeder (1980) 71 Cr. App. R. 228; Hunjan (1978) 68 Cr. App. R. 99 and Ivan Fergus (1994) 98 Cr. App. R. 313.

[8] Milika Doviyaroi (PW6) is now staying home performing domestic duties. On the day of the robbery she was at work in the Centrepoint store. She was a sales assistant working at the back of the store. She saw 4 masked men entering. When 3 of them came to the Liquor Department she concentrated on one of them who was not wearing a mask. She said she had a good look at him. This was from a distance of 2 metres. As he passed her on the way out of the store, he passed within 1 metre of her. She was hiding near a display. She gave a fairly detailed description of him.

[9] Milika said the lighting in the store was good. She only saw the left side of his face as he turned towards the entrance to run out. If this was not to be characterised as a fleeting glance, it was nonetheless only a short opportunity for remembering his face. She said she had deliberately moved forward to have a good look at him.

[10] Naina Masirewa (PW7) was the second identifying witness. She was operating till No. 10, the furthest away from the Liquor Department. But she had gone to the Liquor Department in order to drop her takings, her till, for the day. One of the robbers handed the metal box from the safe to another who was standing on the outside of the Liquor Department. When lifting the box the man outside pulled his mask up to his forehead exposing his face. Naina was then 1 metre away from him standing next to the cupboard where the staff put their bags.

[11] She gave a description of him but it was more detailed in her evidence than had been in her police statement at the time. She said they both "freaked out", he on seeing her, she on seeing him. The lights were bright in that part of the store. She said she would never forget his face.

[12] The evidence of both witnesses, though not without aspects that merit some criticism, are not inherently flawed or unsatisfactory.

[13] Both witnesses were shown a selection of photographs from which they picked out the Accused’s photograph. At that stage of the investigation the police had no idea who had been involved in this robbery. It is a fair procedure for the police to show a selection of photographs as was done here: R v Dwyer [1925] 2 KB 799; Alexander v The Queen [1981] HCA 17; [1979-80] 145 CLR 395. Having said that, there will always be the danger that the identifying witness is identifying the man in the photograph and not the man at the scene. The assessors will have to be warned of that caveat.

[14] The identification parades were held fairly. It would have been better if the two witnesses had been kept immediately prior to the parade in separate rooms. However they worked at the same store, and they were brought in the same vehicle by the store manager. Both denied any collusion. Each went on the parade separately. Resources are not always as freely available in Fiji as they might be in Australia or England. Overall the parade appeared to have been conducted fairly and I find nothing in the evidence to undermine that view. It will be a matter for the assessors to determine.

[15] The evidence passes the threshold at this stage, so that the defence can be called for.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
The Accused in Person