Taufa v State [2009] FJHC 217; HAA051.2009 (2 October 2009)

IN THE HIGH COURT OF FIJI
HELD AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAA 051 of 2009

Between:

VILIAME TAUFA
Appellant

And:

THE STATE
Respondent

Mr L Fotofili for the State
Appellant in person

Hearing date: 25September 2009
Judgment date: 2 October 2009

JUDGMENT

1. On the 28th April 2008, the appellant was convicted of one count of burglary and one count of larceny from a dwelling house in the Magistrate’s Court at Nasinu.

2. Leave to appeal out of time having been allowed on the 18th September 2009, the appellant now seeks to appeal his 2 convictions. He has advanced 7 grounds of appeal which as counsel by the State submits, can be distilled into three "areas" which are

1) Misdirection of identification evidence

2) improper application of the standard and burden of proof

3) No independent evidence to support the complainant’s evidence

Facts

3. On the 31st December 2006 the complainant (PW1) was sleeping at home when at 10.30pm he heard noise coming from a partition between his bedroom and his tenant’s house. He turned on his light (a 2 foot tube fluorescent light) and saw someone break through this partition into his bedroom. The intruder was seen looking at him face to face and demanded money. PW1 gave him $30 but the intruder being dissatisfied grabbed his (money) box and ran away. The box contained $60 and personal papers. The witness, PW1, told the Court that he had known the intruder since he was a child because he was a neighbour and added that as he knew him so well, there was a special reason to remember his face.

Identification

4. The appellant submits that in warning himself of the dangers of identification, the learned Magistrate applied the Turnbull guidelines with prejudice and bias against him. Furthermore he argues that a dock identification was prejudicial because there had not been a formal Police identity parade in which the witness had identified the appellant.

5. There is absolutely no evidence on the papers to support the wild submission that the learned Magistrate was prejudiced or biased against the accused in the trial. The Magistrate very carefully warned himself of the dangers of identification and went on to list the suggested parameters set out in Turnbull’s case and concluded that as they were face to face conversing for about 5 minutes at a distance of 3 feet under the light of a 2 foot tube light, the identification evidence was "of a high quality". With the added factor of years of contact through being neighbours, then that aspect of the evidence becomes unassailable.

6. The appellant’s submission that the dock identification was prejudicial in the absence of a formal Police identification parade would have some force if the appellant had been a stranger to the witness before the home invasion, but where there was evidence that the accused was well known to the victim, the dock identification cannot be said to be prejudicial, and was well within the discretion of the Magistrate to rely on it. It is true that dock identification without a proper foundation can be given virtually no weight at all. It is the ultimate leading question. But that is not the case here.

Burden and Standard of Proof

7. The State very fairly and commendably submits that the Statement of offence in respect of the burglary charge was defective in that although the relevant section offended against was cited, the relevant subsection, in this case (a), was omitted.

8. This does not dilute the strength of the conviction and there has been no prejudice occasioned to the appellant by this technical error. In any event, as Mr Fotofili points out, an appeal against a defective complaint can not arise if the point has not been raised before the Magistrate below (s.342 of Criminal Procedure code).

9. The appellant maintains in his written submissions that reasonable doubt exists in that his defence witness supported his alibi (that he was elsewhere drinking grog all night) and that in effect his "two witness" defence beats the State’s "one witness" prosecution. Furthermore he submits that there was no reason for the Magistrate to reject the evidence of his alibi witness.

No independent evidence

10. There is no substantive law or law of procedure that exists in Fiji that disallows a tribunal to convict on the evidence of only one witness. Cases are not won on quantity of evidence but on quality of evidence.

Conclusion

11. There is no doubt that the learned and very experienced Magistrate, mindful of the burden of proof and standard of proof and being careful enough to warn himself in relying on the identification evidence of PW1, found that he accepted the evidence of the complainant while disbelieving the evidence of the accused and his witness. Such a finding of fact cannot be disturbed, except in the most exceptional circumstances of which the appellant has alerted me to none.

12. This appeal is dismissed.

Paul K. Madigan
Judge

Dated at Suva.
2 October, 2009