Waqanivalu v State [2010] FJHC 436; HAA018.2010 (22 September 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 018 OF 2010

BETWEEN:

1. ASELAI WAQANIVALU
2. ERONI VAQEWA
Appellants

AND:

STATE
Respondent

Appellants both in Person
Ms N. Tikoisuva for the Respondent

Date of Hearing: 20 August, 2 & 15 September 2010
Date of Judgment: 22 September 2010

JUDGMENT

[1] On the 19th March 2010 in the Lautoka Magistrates Court, these two appellants were convicted after trial on one charge of robbery with violence contrary to section 293(1)(a) of the Penal Code, Cap. 17. They were sentenced on the 18th May 2010 to terms of imprisonment being 6 years and 6 months for the first appellant, and seven years for the second appellant.

[2] Both appellants now appeal against conviction and sentence.

Facts

[3] The facts revealed at trial show that on the 27th November 2008, at about 4.00pm, the two accused, both unemployed at the time, hired a taxi in Kashmir and ordered it to go to Ragg Street in Simla. When stopping in Ragg Street, the first accused who had been sitting in the front passenger seat got out and went to the driver's side where he pulled out the ignition key and punched the driver's face. The second accused, seated in the rear, put his arm around the driver's neck and put a blunt knife to his neck. They stole $85 from under the floor mat, $30 in loose coins, $80 in cash from the driver's pocket, $45 from his trouser pocket and his mobile phone. They then fled. They were both subsequently arrested and made confessions during interviews under caution.

[4] The first appellant has seven grounds of appeal against conviction and three against sentence. The second appellant relies on five grounds of appeal against conviction and three against sentence.

[5] Both appellants' grounds of appeal can together be distilled as follows:

(i) Against conviction; (i) that the learned Magistrate relied too much on the uncorroborated evidence of the victim taxi driver;

(ii) that the identification was flawed and that an identity parade should have been arranged;

(iii) that they were denied their rights to legal representation; and

(iv) that a witness to the robbery was never called to give evidence.

Against sentence, both pray that the sentences passed were manifestly harsh and excessive and that the Magistrate relied too much on the State submissions rather than the convicted accuseds' submissions.

[6] The second accused further relies on a ground against conviction (when it should be a ground against sentence) that the Magistrate failed to take into account his early guilty plea, "thus saving the precious time of the Court".

The Trial

[7] The case for the prosecution consisted of the evidence of the complainant/victim who gave cogent evidence of the robbery on the 22 November. A police officer who recorded the two interviews under caution also gave evidence, and these were adduced into evidence.

[8] The Magistrate found a case to answer and explained to both accused their rights.

[9] The first accused gave unsworn evidence, and the second accused elected to remain silent.

[10] The new Criminal Procedure Decree of 2009 which came into effect on February 1st, 2010 removes the right of an accused person to make an unsworn statement from the dock, undoubtedly an exclusion to reflect the position in England where unsworn statements are unknown. The lapse of the Magistrate in this regard is perfectly understandable given at the time its very recent introduction into our procedural code.

Anyway two things arise from this error:

(i) the accused was not prejudiced in any way because he was allowed to give evidence in a manner that he would not have been able to, had the new Decree been followed. If anyone was prejudiced it was the State, because they were not able to cross-examine him; and

(ii) the Magistrate was at pains to point out quite properly that the two accused had not "put forward any defence as such. Yet it is the duty of the Court to see whether the prosecution has proved the charge beyond reasonable doubt". There is obviously nothing in this procedural slip that would afford the first accused grounds for complaint.

[11] Magistrates now must exercise great care in following the new Criminal Procedure Decree, and allow only sworn evidence or silence.

[12] The Magistrate very fairly dismissed the evidence contained in the two cautioned interviews on the basis that the two were unrepresented and that they were not given the opportunity to challenge their admissibility. That left the uncorroborated evidence of the victim taxi driver.

[13] The Magistrate was well aware of the risk of relying solely on uncorroborated evidence and used words such as "caution myself" and "risk". He was obviously alive to the danger but went on most meticulously to examine the nature of the evidence and found the prosecution's case proved nevertheless. Although the adjudicator must take care, there is nothing to stop him convicting on this evidence, and the fact that there might have been an eye witness (who is also alleged to have been robbed) is of no moment. The State can call whoever they wish or decline to call witnesses as they wish. It is for the Magistrate to judge the case on the evidence before him, and not on what evidence there might have been. This ground must fail.

Identification

[14] There was no identity parade. The two accused were perchance seen at the Lautoka Police Station by the complainant who alerted the Police to their identity. Of course identity parades are not obligatory, but when identity is "in issue", the Magistrate must take special care to analyse the circumstances of the identification giving due weight to the elements set out in Turnbull such as time frame, lighting, distance etc. It is quite apparent that the Magistrate was "alive" to the issue of identification and he very carefully dealt with the circumstances of the complainant's identification by each of these appellants. He was convinced that the identification of the accused at the Police Station was not "arranged", and besides that, "the complainant had enough time and opportunity to see the accused persons well during the commission of the crime".

This ground too fails.

Another Witness

[15] The complainant said in evidence that during the robbery, the second accused robbed a lady who was in the vicinity. The appellants submit that the fact that this lady was not called was unfair in that she could have corroborated the taxi driver.

[16] Apart from the fact that the evidence of this lady would be highly prejudicial to the cases of both accused, it is not incumbent on the prosecution to call every single witness that may have some bearing on the case. The fact is, that witness was not called and it is not for the accused, nor the Magistrate to speculate why. The Magistrate judges the case on the evidence before him and on that evidence alone he justified his decision to convict.

This ground fails.

Legal Representation

[17] Each appellant prays that he was denied proper legal representation and as a result, denied a fair trial.

[18] The Court record below reveals that at first appearance on 8th December 2008 the then Magistrate explained in detail the legal rights to both accused. The first accused said he would look for a private lawyer and the second accused elected to represent himself.

Again on the 29th December 2009, the rights to Counsel were explained: the 2nd accused waived right to Counsel.

[19] At trial commencing 11th February 2010, the Magistrate assisted the first accused in his defence who in turn asked appropriate questions of the witness.

[20] The second accused waiving his rights, and the first accused acquitting himself adequately, their lack of legal counsel has not prejudiced them. In any event the first accused had from 8th December 2008 to 11 February 2010 to arrange Counsel, should he so have wished but he did not do so.

This ground fails.

[21] Both of the appellants' appeals against conviction are dismissed.

Sentence

[22] As this Court said in Tagicaki and Lesuma (HAA 19 of 2010) taxi robberies are very serious offences, which should be visited with sentences ranging from four to eight years. The Magistrate in a very carefully crafted sentence was aware of this range. Six months was allowed to the first accused for his mitigating circumstances, whilst the second accused offered nothing in his own mitigation.

[23] The sentences arrived at are well within the accepted range for taxi robberies and if anything could be regarded on the lenient side, given the degree of violence occasioned to the driver.

[24] The appeals against sentence are without merit and dismissed.

Paul K. Madigan
Judge

At Lautoka
22 September 2010