Lalagavesi v State [2011] FJHC 172; HAM027.2010 (17 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. HAM 027 of 2010

BETWEEN

SAULA LALAGAVESI
Appellant

AND

STATE
Respondent

Appellant in Person
Mr. L. Sovau for the State

Date of Hearing: 10 March 2011
Date of Judgment: 17 March 2011

JUDGMENT

[1] The appellant appeals out of time against his conviction in the Lautoka Magistrates Court on the 29th June 2010 on one count of robbery with violence. The particulars of the charge were:

Saula Lalagavesi and another on the 4th August 2008 at Lautoka in the Western Division robbed Nalin Kumar of a bunch of keys and a Samsung brand flip-on camera phone valued $850 and at the time of such robbery did use personal violence on the said Nalin Kumar.

[2] To this charge he, unlike his co-accused, pleaded not guilty and was convicted after trial. He was unrepresented.

[3] The appeal being filed only 7 days out of time, and the State having no objection, the Court granted leave to appeal on the 10th March.

[4] In a notice of amended grounds of appeal dated 10th February 2011, the appellant filed the following grounds:

(i) That the learned Magistrate erred in law and fact in not directing himself on the requirements of turn bull (sic) principles in respect of the identification of the accused.

(ii) That the absents (sic) of an identification parade and in accepting dock identification tenders the finding by the learned Magistrate in respect of positive identification null and void.

(iii) That the learned Magistrate erred in law and in fact in accepting the sworn testimony of PW-2 as genuine without properly considering the material inconsistency of her evidence under oath.

(iv) That the learned Magistrate erred in law and in fact in accepting the evidence of PW-2 without any corroboration considering that PW-2 had a special interest in the outcome of the proceedings as any (sic) accomplice.

To support these grounds he has filed extensive and numerous handwritten submissions.

[5] In reply the State has also filed comprehensive submissions including a detailed submission on sentence which is entirely superfluous given that the appellant is not appealing his sentence.

[6] The trial against this appellant consisted of only two witnesses for the prosecution. The victim, a driver of a van for hire, told of being hired by a Fijian woman to drive her to a funeral but to stop nearby so that she "could pick flowers". When he did in fact stop, the woman got out and two Fijian young men came, assaulted him and robbed him. This was at about 7.00am on the 4th August 2008. The Fijian lady was PW-2 at trial. She identified this appellant because she knew him. She gave evidence that the accused had met her the previous evening at his friend's house and had asked her to arrange a van to be brought to a place near where she had directed it to go "to pick the flowers". She knew this appellant well and had known him for one year "through my brother". She said in evidence that when the van had stopped, she had seen this appellant approach with another. She recognized him despite the fact that he was wearing a mask; she even saying that the mask was see-through.

[7] In the light of this evidence, the appellant's submission that the evidence of identification was insufficient is totally baseless. It is not a question of identification at all. It is a matter of recognition by a witness who has known him and seen him for a year. In those circumstances an identification parade is totally unnecessary and a Turnbull warning is inappropriate.

[8] A tribunal should only warn a jury or itself, using the Turnbull guidelines if an identification is made in the course of a crime by a witness who has never seen the alleged perpetrator before. Despite that however, there remains within the narrow field of recognition the possibility that mistakes can be made. As stated in Archbold 2011 paragraph 14 – 19, "many people have experienced seeing someone in the street whom they knew, only to discover they were wrong". So even in recognition cases such as this, care should still be taken.

[9] The learned Magistrate was alive to this difficulty, and he said in his judgment (paragraph 2) "it appears that the evidence of this witness is very crucial regarding the identification of the accused". The Magistrate resolved such difficulty by stressing that the witness knew him well, knew him by his first name and recognized him. She even said that it was he who suggested going to get the van.

[10] The appellant's grounds of appeal relating to identification have no merit and must fail.

[11] The appellant's third ground is difficult to make out. He appears to be saying that as the Fijian lady was complicit in the offence by having arranged the van to be "in situ", she was therefore an "accomplice" and the learned Magistrate should have as a result given himself an accomplice warning and looked for corroboration outside her evidence.

[12] If that be the appellant's argument then it is misconceived. First there is nothing contained in the record that would go in any way to suggest that PW-2 was an accomplice of the two men charged with robbery. She had been held by the Police on the day of the offence for questioning however she was never charged and there is no suggestion that she was giving evidence in this trial under immunity as the appellant appears to claim.

[13] Secondly, even if she was an accomplice and even if she was giving evidence under immunity, there is an abundance of corroboration in the evidence of PW-1. The only part of her evidence not corroborated is her recognition of the appellant which has as discussed supra been analyzed and accepted by the Magistrate. Not only did she recognize the appellant at the scene, she was able to give evidence that it was he who actually suggested the van robbery; the night before.

[14] None of the grounds being made out, the appeal against conviction is dismissed.

Paul K. Madigan
JUDGE
At Lautoka
17 March 2011