Bavoro v State [2008] FJHC 240; HAA044J.2008 (2 October 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APELLATE JURISDICTION

Criminal Appeal No: HAA 044 of 2008

Between:

MAIKA BAVORO
Appellant

And:

THE STATE
Respondent

Hearing: 26th September 2008
Judgment: 2nd October 2008

Counsel: Appellant in person
Ms N. Tikoisuva for State

JUDGMENT

The Appellant, who was given leave to appeal out of time on the 13th of June 2008, appeals against his conviction and sentence for the offence of robbery with violence. His grounds of appeal are that the learned Magistrate erred in allowing a dock identification without an identification parade, that the evidence of alibi should have led to an acquittal, that there should have been no trial without legal representation, that there was unreasonable delay in the disposal of the case and that the sentence was harsh and excessive. The State opposes the appeal.

The charge filed on the 4th of December 2003, alleged that on the 16th of November 2003, the Appellant with one Tevita Sugu robbed Mohammed Imraz Ali of a Nokia phone valued at $299, and immediately before such robbery, threatened to use personal violence on him.

The case was first called on the 4th of December 2003 and both accused pleaded not guilty. They were advised to contact legal aid, and were remanded in custody. They were granted bail on the 22nd of December 2003. The case was called on the 5th of January 2004 and the Appellant was again advised to engage counsel. A hearing date was set for the 23rd of March 2004. On that day, the prosecution asked for an adjournment because the witnesses had not been summoned. The Appellant was then granted bail.

On the 5th of May, the accused made no appearance. There was no appearance by the Appellant on the 2nd of August 2004. Nor did he appear on the 20th of September and the 13th of October 2004. On the 13th of October the 1st accused, who was represented by counsel changed his plea. He was a first offender, a 20 year old employee of Fiji Industries Ltd., and expressed remorse. He had apologized to the complainant at the Raiwaqa Police Station. The learned Magistrate sentenced him to a 2 year term of imprisonment, suspended for 3 years. A bench warrant was issued for the Appellant.

The Appellant next appeared on the 27th of May 2005, it appears on execution of the bench warrant. He was remanded in custody, but there were several further adjournments until the 3rd of August 2006 was set for hearing. On that date, the Appellant did not appear, apparently because no production order had been issued. The trial eventually commenced on the 13th of November 2006.

The evidence was that the complainant, an employee of Sardar Trading in Grantham Road was walking home towards Nabua on the 16th of November 2003 with two of his workmates when two boys pushed his friends away and held him, one from the front and the other from the back. The one at the back punched him, and the other took his mobile phone. They both ran away. He reported the matter at the Raiwaqa Police Station. He later identified his mobile phone at the police station. He could not identify the two men.

The evidence of Jainesh Prasad Sewak was that he was a driver and salesman at Sardar Trading and that he was with the complainant when the incident occurred. He saw the Appellant with others and saw the Appellant hold the complainant from the back, after pushing Jainesh Sewak away. He punched the complainant on the back of his neck and they took the mobile. They tried without success to take his wristwatch.

Under cross-examination, this witness said he had never seen the Appellant before but that he had seen the Appellant’s face at the time of the incident, and subsequently in court. He agreed that in his statement to the police he had said that one of the men was wearing a blue t-shirt and blue ¾ shorts, and the other was wearing a white t-shirt and blue jeans. He agreed that there had been no identification parade.

The next witness was Netani Seru, a student who lived in Raiwai. He was drinking grog at the Grantham Housing when he saw the Appellant run across from Raj Moti Lal Street, from the roundabout to the short cut. He knew the Appellant because they lived in Raiwai together and played volleyball together. In cross-examination he said he saw the Appellant run from the footpath with another person and said that "it was obvious that they must have done something wrong."

The next witness was Epi Tokarua, a baker of Sardar Trading. He lived in Raiwaqa for 12 years. On the 16th of November 2003, he was at a church service at Kauvesi Park Hall. While singing, he was looking towards Grantham Road and he saw some people pulling each other. Then he saw "Maika" and "Tevita" come running "as if something has actually happened." They ran past the hall and said that the person they had pulled was the victim who was also his workmate. He said he knew Maika Bavoro because they saw each other a lot as they lived close to each other.

Lu Kin Ho operated a shop in Raiwai since 1993. On the 16th of November 2003 he was at the shop when a Fijian man came in with a mobile phone and offered to sell it to him. He bought it for $23.00. He could not identify the man and later gave the phone to the police. He said the man was not as fair as the Appellant.

The mobile phone was seized by Sergeant Jeremaia Natoko of the Tactical Response Unit. He said that the two suspects had been identified by the witnesses Epi and Seru. He interviewed the Appellant. The interview record was tendered. It was exculpatory. The Appellant said he did not know Tevita Sugu and that he was at home at the time of the incident.

The learned Magistrate found a case to answer. Viliame Gauna gave evidence for the Appellant, saying that on the 16th of November 2003 he was with the Appellant at his home watching television from 1pm to 4pm.

The Appellant also called Jonacani Necani, a serving prisoner at Naboro. He said that he also had been drinking with the Appellant at his home on the 16th of November 2003 from 1pm.

Jitoko Rarawa gave evidence that on the 16th of November (he said December at first but was prompted by the Appellant) he was drinking with the Appellant at the Appellant’s house until 4pm or 4.30pm. This was also the substance of the Appellant’s evidence on oath.

Judgment was delivered on the 20th of September 2007. The learned Magistrate summarized the law and the facts and said that the evidence implicating the Appellant came from the recognition evidence of two prosecution witnesses. He said at page 6 of his judgment:

"I have cautioned myself of the danger of accepting the identification evidence of the prosecution witnesses as there was no formal identification parade done in this case. However PW2 was adamant that he saw the accused and that it was the accused who took the mobile phone as he was the one in front of the complainant during the confrontation."

He then summarized the evidence of identification and said:

"Given the above forms of identification, I find that it was indeed the accused Maika Bavoro that committed this robbery with violence with Tevita Sugu. Identification here is one of recognition by PW5. I have also considered the evidence by the defence but find that they were inconsistent with each other and the demeanour of these witnesses in court is much to be desired. They argued with the prosecutor and material facts of their evidence differ substantially as well."

He then found the offence proved beyond reasonable doubt.

In mitigation, the Appellant said that he was 28 years old, that he was serving a term which would lead to his release in 2011, and that his mother was elderly.

The learned Magistrate commenced at 4 years imprisonment and after adjusting for mitigating and aggravating circumstances, sentenced the Appellant to 5 years imprisonment. He ordered that the sentence be served concurrently because of the delay in bringing the case to its conclusion.

Legal representation

The Appellant was told of his right to counsel. He was then either on bail or in remand for 3 years awaiting trial. He had ample opportunity to instruct counsel either of his own choice, or at the Legal Aid Commission. The fact that he did not do so was a matter for which he must take responsibility. Clearly there was an informed waiver of his right to counsel.

In any event there is no evidence of any resulting prejudice. He cross-examined each witness vigorously. He gave sworn evidence and called alibi witnesses. His defence was that the identification was either mistaken or fabricated but in any event unreliable, and that at all relevant times he was at his own home watching television with his friends. There is nothing that he did not do in the conduct of his defence, that counsel would have done. He was not prejudiced by lack of legal representation.

Identification

The learned Magistrate in the end relied on the "recognition" identification evidence of two of the prosecution witnesses both of whom knew the Appellant personally. He placed no or little weight on the evidence of Jainesh Sewak who identified the Appellant for the first time in court. If there had been no evidence led of identification other than this evidence, I have no doubt that a submission of no case might have succeeded. However, PW4 Netani Seru, and PW5 Epi Tokarua both knew the Appellant. They lived close to each other and PW4 played volleyball with him. The two witnesses saw him separately in broad daylight on a sunny day. Clearly the evidence was safe even without an identification parade. The learned Magistrate did not err in relying on it.

Delay

Much of the delay was caused by the Appellant who failed to appear in court for much of 2004 and 2005. Admittedly thereafter there was unnecessary delay while the court adjourned continuously without serving production orders. However the delay was largely the Appellant’s fault.

In these circumstances, I do not consider the delay to be unreasonable. Certainly the Appellant was not prejudiced in his defence by the delay. Further the learned Magistrate considered delay when he ordered a concurrent sentence. In principle he would have been correct if he had ordered a consecutive sentence but he gave considerable weight to the delay as a mitigating factor in accordance with the principles set out by the Court of Appeal in Mohammed Sharif Sahim v. State (FCA) 2008, Misc. 17 of 2007. There is no substance in this ground.

Sentence

Nor do I find the sentence to be harsh or excessive. The complainant received abrasions as a result of the robbery but the incident was really an aggravated form of larceny from the person. The punching and threatening rendered it in law, a case of robbery. However it called for a sentence of between 4-5 years. As such the 5 year term imposed was correct in principle. Lastly, as I have said, the learned Magistrate took the delay into account in ordering the sentence to be served concurrently. In doing so he acted very fairly. In effect, the Appellant will serve only a year more than he was originally due to serve. This is not an excessive term.

For these reasons appeal against sentence is also dismissed.

Result

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
2nd October 2008