Jitoko v State [2010] FJHC 16; HAA059.2009 (18 January 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

HIGH COURT CRIMINAL APPEAL NO: HAA 59 OF 2009
CRIMINAL CASE NO: 735 OF 2008

BETWEEN:

OLE JITOKO
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Appellant - In person
Respondent - Mr. K. Waqavonovono

Date of Hearing: 7th January, 2010.
Date of Judgment: 18th January, 2010

JUDGMENT OF THE COURT

[1] This is an appeal filed against the judgment of the learned Magistrate of Nasinu dated 26th March 2009. In the Magistrates court the accused appellant was charged for robbery with violence punishable in terms of section 293(1) (b) of the penal code. After trial the learned Magistrate pronounced his judgment convicting the accused and it is against the said conviction this appeal is filed.

INTRODUCTION

[2] As per the case for the prosecution the accused appellant on the day of the incident at around 7.30 pm had come home in his car. After opening the gate when he was coming back to get into the car 3 Fijian boys who came from the neighbour's compound had held him and robbed him. He recognized the accused as the man who punched him. On his yelling for help his neighbour Sakiusa arrived and then the three men had run away. Thereafter Sakiusa had gone with him in the taxi to the bakery near Hanson and he (the complainant) had seen and identified the accused standing there. When Sakiusa questioned him the accused had run away. Subsequently Sakiusa had caught the accused and brought to the police station. The complainant had gone to the police station and identified the accused there.

GROUNDS OF APPEAL

[3] The appellant urged the following grounds of appeal:-

1. That the learned Magistrate erred in law and in fact in holding a dock identification when no police identification parade was held previously. The identification of a person for the first time in the dock is both an undesirable practice.
   
2. That the learned Magistrate erred in law and in fact in allowing the prosecution witness [PW1] to identify the accused/ appellant for the first time in the dock.
   
3. That the learned trial Magistrate erred in law and in fact in not allowing the accused/ appellant to challenge the identification being claimed by the complainant [PW1] and the police witness Sakiusa [PW2] respectively.
   
4. That the learned Magistrate erred in law and in fact in not allowing the accused/ appellant to submit his submission in defence after the trial.
   
5. That the learned Magistrate erred in law and in fact accepting the evidence of police witness Sakiusa [PW2] when in fact he [PW2] was not present personally or physically during the trial.
   
6. That the learned Magistrate erred in law and in fact in accepting the evidence of complainant [PW1]; page 3 of the judgment [5.2]. PW1 recognized the person who punched him and hold him from the back. He could positively identify the person, as he was about 3 meters away from him when in fact he was facing towards his car [Taxi] door.
   
7. That the learned Magistrate erred in law in fact in not alerting himself to approach the identification with the utmost caution as there is always the possibility that a single witness or several witnesses might be mistaken.
   

But in reality there are only 3 grounds. They are:-

1. Challenging the identification of the accused.

2. That the accused was not allowed to submit his submission after trial.

3. That accepting the evidence of the witness Sakiusa without the witness being called is bad in law.

[4] I have carefully considered the submissions made by the Appellant as well as the counsel for the respondent (state) in this regard. I will 1st consider the 3rd ground of appeal.

[5] As the witness Sakiusa who caught the accused has migrated to Australia his statement which was given to the police was read over at the trial in the Magistrate’s court in terms of section 192 of the Criminal Procedure Code. The contention of the appellant is that the learned Magistrate erred in law and in fact in accepting the evidence of witness Sakiusa when in fact he was not present during the trial.

[6] The section 192(1) and (2) reads as follows:-

" (1) In any criminal proceedings, ... a written statement by any person shall, if such of the conditions mentioned in subsection (2) as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by the person.

(2) The conditions referred to in subsection (1) shall be that –

• (a) the statement purports to be signed by the person who made it;
  
• (b) the statement contains a declaration by the person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he willfully stated in it anything which he knew to be false or did not believe to be true;
  
• (c) at least fourteen clear days before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings;
  
• (d) none of the other parties or their legal practitioners within fourteen days from the service of the copy of the statement, serves a notice on the party so proposing objecting to the statement being tendered in evidence under this section:
  

Provided that the conditions mentioned in paragraph (c) and (d) shall not apply if the parties agree before or during the hearing that the statement shall be so tendered."

[7] Therefore a written statement of a person is admissible as evidence only subject to the conditions laid down in subsection (2) as are applicable. In this regard on behalf of the respondent attention of court is drawn to the principles laid down in Archbold Criminal Pleading, Evidence and Practice (1997 edition) at page 975. However section 192 has laid down a special procedure the court should follow when admitting a written statement of a person without calling him as a witness. Therefore now I have to see whether, the conditions laid down in 192(2) has been followed at the court of trial.

[8] There is no doubt that the conditions (a) and (b) of section 192(2) has been fulfilled. But this court cannot see that conditions laid down in (c) and (d) of section 192(2) is followed. At the hearing stage of this appeal it was the contention of the counsel for the respondent that as disclosures were given to the accused it can be considered as sufficient compliance of section 192(2) (c) and (d). This position cannot be accepted. Tendering disclosures cannot be considered as notice to the other party of tendering a statement of a witness who cannot be brought and that his statement would be read over in court. The purpose of submitting the relevant statement in terms of section 192(2)(c) is to give 14 days notice to the other party, of reading the statement of the witness without calling the witness in court. Once that notice is received, the opposing party gets the opportunity to object to the statement being tendered as evidence in court, in terms of section 192(2) (d). Further when perusing the original court record, no where it says that the parties agreed before or during the trial that the statement shall be so tendered as mentioned in the proviso to section 192(2). Therefore as the conditions laid down in section 192(2) has not been fulfilled the learned Magistrate has erred in admitting the statement of Sakiusa as evidence.

1ST GROUND OF APPEAL

[9] The contention of the appellant is that the learned Magistrate has erred in law and in fact when he accepted the dock identification when no identification parade was held.

[10] In Case Crim. App No. HAA 059 of 2005s Sakiusa Basa –vs- The state, principle of dock identification was discussed. It was said ‘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.’

[11] This principle was discussed at length on dock identification and summing up guide lines in Turnbull v State (1976) 63 Cr.App.R.132.

[12] In the instant case the accused Appellant was identified by the complainant at the time of the robbery. Immediately thereafter the complainant had identified the appellant again when the complainant followed him with Sakiusa, at the bakery near Hanson where accused had run away on being questioned by Sakiusa. This is the evidence of the complainant. Sakiusa has caught the accused and brought him to the police station. The complainant has seen and identified the accused again at the police station. Before coming to the police station the accused was identified by the complainant twice at the place of crime closely and immediately thereafter near the bakery. The complainant has specifically said about the T-shirt which the accused appellant was wearing. Accused too has said at the caution interview about the clothes he was wearing at the time of his arrest. The complainant in his evidence clearly stated that there were enough street lights at the place where he was robbed. Therefore the complainant has clearly identified the accused appellant twice before the accused was brought to the police station and even at the police station. It was not a fleeting glance situation as the learned Magistrate has said in the judgment.

[13] As it was said in the judgment of Tomasi Bagaga –v- The State; Crim. App. case no. 050 of 2008 Turnbull guidelines are for assessing the quality of identification and to remove the dangers of identification or recognizance.

[14] In the circumstances identification of the accused is clear and no doubt is created merely because no identification parade was held.

[15] Although Sakiusa’s statement to the Police cannot be considered as evidence as aforesaid, the police officer confirms that the accused was brought to the police station by Sakiusa. That corroborates the position of the complainant as to the arrest of the accused appellant.

[16] Hence 1st ground of appeal fails.

2ND GROUND OF APPEAL

[17] It is urged by the appellant that the learned Magistrate erred in law and in fact in not allowing the accused appellant to submit his submission in defence after the trial.

[18] At the conclusion of the prosecution case the learned Magistrate has correctly informed the accused of his rights and the accused has opted to remain silent. Thereafter neither the prosecution nor the accused has made any submissions. When perusing the court record one cannot say that the learned Magistrate did not allow or refuse the accused to make any submissions after the conclusion of the evidence. Although in the petition of appeal the appellant has said that the learned Magistrate did not allow him to make submissions, at the hearing stage it was not persued to say that there was an application to that effect and it was disallowed. Any how now it is for this court to see whether the relevant section 213(2) of the criminal procedure code has been followed.

[19] Section 213(2) reads as follows:-

"(2) If the accused person, whether or not he gives evidence himself, does not call any witness other than himself to give evidence on his behalf, the prosecutor shall, after all the evidence has been given, have the right to address the court first and the accused person may then, either personally or by his legal practitioner, make the final address to the court, whether or not the prosecutor has exercised his rights to address the court."

[20] At the hearing, counsel for the respondent (The State) contended that there is no miscarriage of justice, as prosecution also did not make submissions on their behalf. This reasoning for no miscarriage of justice cannot be accepted as the section 213(2) clearly states that ‘...the accused person may then ...... make the final address to court, whether or not the prosecutor has exercised his right to address the court.’ Therefore it is now the duty of this court to see whether the learned Magistrate should have called upon the accused to make submissions on his behalf. In this regard court will have to look for the intention of the legislature by looking at the history, as to how amendments were brought to the relevant section 213(2) of the Criminal Procedure Code.

[21] The present section as it reads now was brought in by the amendment Act No.11 of 1974. Previously it was read as follows. (In terms of amendment Act No.12 of 1971 then section 203(2))

[22] Section 203(2), (As it was then):-

"If at the close of the case for the prosecution the accused person does not give or adduce evidence and the court considers there is evidence that he committed the offence, the prosecutor shall then, subject to the provisions of section 147 of the Code, address the court first and the court shall then call on the accused person, personally or by his barrister and solicitor, to address the court on his own behalf."

[23] The meaning of the section is neither ambiguous nor obscure. The ordinary meaning of the present section is not manifestly absurd or unreasonable.

[24] Therefore it is very clear that the legislature has when amending the section omitted the part "... court shall then call on the accused person, personally or by his barrister and solicitor, to address the court on his own behalf ....." Instead the present section says, ".... prosecutor shall have the right to address the court first and the accused person may then address the court whether or not the prosecutor has exercised his right ....."

[25] Therefore, this court has to consider whether the above opportunity, that is the opportunity to make final submissions on behalf of the accused person, was available to the defence or not. Upon perusal of the court record, I find no evidence to indicate that the above opportunity was available to the accused person or that he was prevented from making his final submissions. Further the court record does not reflect that the Learned Magistrate has explained the accused of his right to make submissions. By omitting the said portion in the amendment, I do not think the legislature ever intended that the Magistrate should not explain his rights to the accused to make submissions at the end of the case. The Learned Magistrate is duty bound to inform the right of the accused to make the final address to court whether or not the prosecutor has exercised his right to address court. Hence I find that the learned Magistrate erred by not informing the said right to the accused.

[26] In any event the learned Magistrate at the close of the prosecution case has explained the rights of the accused and accused opted to remain silent. Thereafter the submissions are made on facts and law on the evidence placed before court. If the Learned Magistrate has considered all those matters which parties could have submitted no prejudice is caused to the accused. One cannot bring new evidence to the case by making the closing submissions. In this appeal the accused appellant has brought in all the grounds of appeal what he thinks necessary. When perusing all evidence placed before the Learned Magistrate, I see no other conclusion the Learned Magistrate could have come into other than convicting the accused of the charge. Therefore I see no prejudice had been caused to the accused in this case by not being informed his right to make the final address to court.

[27] In the above premise I see no merit in the appeal and see no reason to interfere with the judgment of the Learned Magistrate. There is no appeal lodged against the sentence. Hence the appeal against the conviction is dismissed.

Priyantha Fernando
Puisne Judge

18.1.2010