Vuetaki v State [2010] FJHC 259; HAM030.2010 (21 July 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO. HAM 30 OF 2010

BETWEEN:

TUPOU VUETAKI
APPLICANT

AND

THE STATE
RESPONDENT

Date of Hearing: 29 June 2010
Date of Ruling: 21 July 2010

Applicant in Person
Mr. M. Korovou for the State

RULING

[1] By an informal letter dated 24th May 2010, the applicant applies for a stay of proceedings in respect of a case of robbery with violence and unlawful use of a motor vehicle, more particularly described in the Information in Criminal Case No. HAC 156 of 2007.

[2] The charges laid against him along with 2 others are as follows:

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293 of the Penal Code, Cap. 17.

Particulars of Offence

Simione Nakailagi, William Drasuna and Tupou Vuetaki with others on the 18th day of July 2007 at Lautoka in the Western Division robbed Mohammed Khan s/o Mohammed Siddiq of cash $2,700, assorted liquor valued at $1,500, assorted mobile phone valued at $2,000, assorted digital camera valued at $2,000, one DVD deck valued at $1,300 and assorted jewelleries valued at $25,000 to the total value of $33,330.00 and immediately before the time of such robbery did use personal violence to the said Mohammed Khan s/o Mohammed Siddiq.

SECOND COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to section 292 of the Penal Code, Cap. 17.

Particulars of Offence

Simione Nakailagi, William Drasuna and Tupou Vuetaki with others on the 18th day of July 2007 at Lautoka in the Western Division unlawfully and without colour of right but not as to be guilty of stealing, took to their own use motor vehicle registration number CL 990, the property of Mohammed Khan s/o Mohammed Siddiq.

[3] Unusually the basis of the application for stay is not undue delay but abuse of investigation procedures and in particular the conduct of the identification parade which the applicant submits was conducted "in breach of natural justice". He claims that his right to a fair trial would be compromised and "alternatively" he would be prejudiced to the extent that a stay is "the only exceptional step that the Court should undertake to avoid further injustice".

[4] The applicant in his oral submission before me was at pains to point out that he was not relying on delay as the basis for his application but was relying on the irregular procedures adopted by the Police in the conduct of the identity parade.

[5] In his written submission the applicant complains:

(i) he was forced to confess to a crime he knew nothing about, that force being beaten on the feet whilst tied to a tree;

(ii) he gave the Police an alibi (home with wife) and the wife was threatened to deny the alibi;

(iii) the investigating officer had fabricated part of his evidence;

(iv) witnesses to the identification parade saw the applicant suspect before the parade and stared at him for a few minutes;

(v) The other actors on the parade did not resemble the applicant in age, general appearance or position in life;

(vi) The parade was conducted in an open sided "summer house" and not a "normal room".

(vii) The witnesses to the parade took no time to consider their identification – it was perfunctory in the extreme.

[6] In support of these allegations, the accused relies on passages from Archbold (2005 ed.) and numerous cases quoted in Archbold. He then goes on to rehearse the law of stay in Fiji, (and in particular the prejudice of delay).

[7] Counsel for the State filed submissions which were not relevant to the issues raised by the applicant and were therefore singularly unhelpful.

[8] None of the grounds raised by the applicant would warrant the exceptional remedy of stay of proceedings. They are all issues which have neither a foundation of fact nor which cannot be canvassed in a properly conducted trial before the Court with assessors. His complaint that he was tied to a tree and made to confess is baseless because during an interview under caution he answered every question by saying: "I wish to remain silent". There was no confession. The allegations of fabrication and threats to the alibi witness can be canvassed at trial.

Identification Parade

[9] The applicant’s reliance on Archbold 2005 is misconceived. Archbold being an English textbook, and an eminently authoritative and respectable text at that, deals of course with the law as it pertains in England. The procedures of identification in England are governed by the Police and Criminal Evidence Act 1984, Code D, an act which does not apply in Fiji.

[10] The rules governing the procedures to be adopted in conducting identification parades in Fiji have been developed in the common law and there is no doubt that if the witnesses to the parade had been "coached" then the evidence relating to the parade would be vitiated. In the case of R v Davies and Cody [1937] HCA 27; (1937) 57 CLR 170 the High Court of Australia said:

"A witness who is taken by the Police for the purpose of seeing whether he can identify a person who is in custody in relation to a particular crime has in his mind a recollection or impression of the person whom he saw, or, it may be, heard, at the scene of the crime or in relation to some matter which is connected with the crime. The recollection probably relates to the appearance of the person, and possibly to his mode of standing, moving, or speaking or some other characteristic. It is important that this recollection should not be overlaid or in any way affected by suggestions that a particular person in custody is either the person previously seen by the witness or is the person suspected of or charged with the crime."

[11] Should the applicant’s grounds of complaint be borne out then it is obvious that the identification at the parade would be discredited and the assessors would be so directed.

[12] There are two vitally relevant facts to be taken into account in this exercise:

(i) the applicant is extraordinary in appearance, or certainly was at the time. He was "heavily built" and sported a beard.

(ii) the identification parade was held less than 60 hours after the robbery.

[13] It is not for this Court to now analyze the strength of the identification evidence. This is a matter that must be canvassed at trial. The purpose of a trial in an adversary system is to expound the evidence and test it by cross-examination and thereafter for the parties to make submissions as to its merit or otherwise.

[14] It is a general rule in the common law that evidence given in the course of the trial and before verdict must be tendered in the presence of the (assessors): R v Reynolds [1950] 1 K.B. 606 at 611; however where there is an issue as to the admissibility of evidence it may be necessary to hear evidence on a "voir dire". In determining the admissibility of identification parade evidence the Court of Appeal (England) has said that a "voir dire" is inappropriate. In R v Martin and Nichols [1994] Crim. L.R. 218 the Court of Appeal repeated its view that occasions for conducting a trial-within-a-trial would be rare: decisions about the admissibility of identification evidence were not generally to be made on the basis of findings by a trial Judge in relation to disputed issues of fact.

[15] If needs by and after hearing all relevant evidence on the identification parade, the assessors will be directed appropriately and robustly.

[16] The applicant submits that apart from the identification evidence the case against him is inherently weak, and that as such the matter should not go to trial. While it appears on the papers that the submission has no merit, such a submission loses sight of the safeguards in a criminal trial where the accused is protected by his right to make an application of no case to answer at the end of the prosecution case. After the evidence is aired it is then the time for the accused to invite the Court to stop the case, and not before the trial starts.

[17] The present application is, as a result, misconceived. A stay is ordered in only the most rare of circumstances and this is not one of them. The grounds of the applicant are issues to be vented at trial and ruled upon if need be. This course is the fundamental basis of our adversary legal system.

[18] The application is refused.

Paul K. Madigan
Judge

At Lautoka
21 July 2010