Ravasua v State [2010] FJHC 33; HAA033.2009 (5 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. HAA 33 OF 2009

TAITUSI RAVASUA
Appellant

V

STATE
Respondent

Date of Hearing: 25th January 2010
Date of Judgment: 5 February 2010

Appellant in person
Ms. S. Puamau for the respondent

JUDGMENT

1. On the 25th May, 2009 the appellant was convicted after trial in the Nasinu Magistrate’s Court of one charge of robbery with violence and was sentenced to a term of seven years imprisonment.

2. The appellant appeals both conviction and sentence. His grounds for appeal against conviction are

(i) that the Magistrate erred in forcing him to go to trial unrepresented

(ii) that the learned trial Court erred in law and fact in failing to properly assist him as an unrepresented accused resulting in an unfair trial.

(iii) that the learned Magistrate erred in law and fact in convicting merely on identification – when a Police identify parade had not been fairly conducted.

(iv) that the learned Magistrate did not give him a chance to seek counsel of his choice.

3. His grounds against sentence are

(i) that the sentence is manifestly harsh and excessive

(ii) that the complainant was not injured nor received life threatening injuries.

(iii) that the value of the items stolen was insignificant since they were worth merely $2,000.00.

4. The facts disclosed at trial reveal that at about 6pm on the 28th August 2007 the victim an Indo Fijian lady was waiting with 2 friends for transport outside a shop at Lomalagi Place, Makoi. The accused suddenly appeared and warned them not to be there as it was a "dangerous place". He left but then re-appeared and grabbed the complainant’s bag. He then held her by the neck and threatened her with a closed fist to the face. He forced her to give up her gold chains, gold bangles and gold earrings. He then fled the scene. The complainant said in her evidence that shop lights and street lights were on giving her sufficient light to see the assailant’s face. She said his face was 1 foot away, near enough to be able to smell his breath. She observed him for 5 minutes. In a police identification parade, approximately 2 months later she identified the accused out of a line-up of 9 men.

5. The appellant denied the allegation and said in sworn evidence that on the date in question he was farming at Matailobau village.

6. Three of the appellant’s grounds of appeal against conviction relate to his being unrepresented at trial. However in written submissions handed up on the date of hearing and which the appellant sought to rely on, he seems to have resiled from that position. Brief mention is made of the many adjournments granted to the prosecution which he says "will show to this court that the court lacked fairness to allow him the opportunity to get Counsel".

7. It is difficult to see the logic in this submission. The record shows that on the first day the case was called the Magistrate notes "Right to counsel explained" to which the accused replied "waive right to Counsel"
As was stated in the case of Ali v. State [2005] FJHC 85, HAA 136/04 by Winter J:

"it is desirable that an accused be told that he may instruct counsel of choice, defend himself or thirdly make an application for legal aid ........ however this giving of information does not occur in a vacuum".

8. This Magistrate who is very experienced indeed did advise the appellant of his rights to counsel, which rights were bound to have included the three options and he did this at the most appropriate time in the proceedings. It is remarkable that the appellant waived the right to counsel and never again in the many times the case was called before evidence was adduced, did he even once raise the issue of representation with the tribunal.

9. As counsel for the State points out in her very detailed and helpful written submissions, the appellant then went on to conduct his defence in an entirely appropriate and competent manner which would negate any claim of prejudice.

10. To be fair to this appellant, the Court now turns to his written submissions which are not based on a ground of appeal filed. He states that the learned Magistrate failed to refer to the burden and standard of proof, nor did he identify the issues for determination. He further complains that no site visit was undertaken which he submits "must took (sic) place before judgment is delivered".

11. The Magistrate gave an extremely well reasoned judgment which was careful enough to list all the elements that the prosecution had to prove; or in other words identifying the issues for determination. The questions of burden and standard of proof are such fundamental tenets of our legal system, it is incomprehensible that the learned Magistrate would not have these uppermost in his mind. They are not a mantra to be recited in every judgment but they are principles which can be assumed and they are made obvious from words that the Magistrate used. For example he refers to "prosecution must prove beyond reasonable doubt". This is an obvious reference to the burden and standard of proof.

12. There is no authority in our legal system in Fiji that says a site visit must be conducted in every case. It is undertaken at the discretion of the Court and on application of one of the parties when it is deemed to be of assistance to the finder(s) of fact in a trial. At no time did this appellant request a site visit.

13. The second limb of the applicants original grounds of appeal refers to the inadequacy of identification and the manner in which the Magistrate dealt with identification. The Magistrate was alive to the importance of the identification evidence in this case and in his judgment he devotes a considerable time in analyzing that evidence in accordance with the well established tests in R. v. Turnbull [1977] QB 274. He considered questions of distance, light, length of observation: whether there was subsequent confirmation in a police arranged identification procedure. In believing that it was "prudent for the Court to warn itself of the special need for caution before convicting the accused in reliance on the ......identification evidence, because an honest and convincing witness could be mistaken" he went on to find that the "quality of the complainant’s identification evidence was of a high quality".

14. None of the appellant’s grounds of appeal conviction are made out and the appeal is therefore dismissed.

15. In assessing sentence, the Magistrate stated the tariff was between 3 and 8 years and took a starting point of 5 years imprisonment. In affording him a 2 year discount for mitigating features, he took into account the lack of serious injury, the value of the property not being high and the perceived stabilization of the accused who had returned to his village to farm. He however increased the sentence by 4 years for the aggravating feature of robbing an honest and defenceless person on the streets. The total sentence arrived at was one of seven years.

16. While it may be difficult to justify the stated aggravating feature, a sentence of 7 years for this offence is now well within the guidelines laid down by Goundar J. in State v. Rokonabete [2008] FJHC 226; HAC 118 of 2007.

17. Additional aggravating features could be found in that there was little evidence of remorse, it was not his first offence (he had 9 previous similar convictions) and the victim was traumatized by the offence.

18. The appeal against sentence fails. It is therefore dismissed.

Paul Madigan
Judge

At Suva
5 February 2010