Malatolu v State [2012] FJHC 1448; HAA07.2012 (29 November 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL CASE NO HAA 07 OF 2012

BETWEEN:

SAULA MALATOLU
Appellant

AND:

STATE
Respondent

Counsels: Appellant appeared in Person
Ms S Puamau for the Respondent

Date of Judgment: 29 November 2012

JUDGMENT

[1] The Appellant above named was originally charged before the Magistrate for Robbery with Violence punishable under Section 291(1)(b) of the Penal Code.

[2] Originally the Appellant preferred an appeal against the conviction and sentence and subsequently he filed an amended appeal withdrawing his appeal against sentence. He confirmed the same in the open court and said that he is appealing only against the conviction.

[3] According to the evidence before the Magistrate the incident was described as follows:

On the 25th April 2008 Complainant Ashant Kumar, his wife and their small child were sleeping at their bedroom, at around 1.45am this Accused and another person who had covered his face had entered the house punched the Complainant and assaulted him. Thereafter they robbed items worth of Three Hundred and Ninety Dollars ($390.00) from them. The Complainant had gone to hospital and from there he was taken to Police Station, there he had seen this Appellant and identified him as the person who entered to his house.

[4] After the trial the Learned Magistrate found the Appellant guilty, convicted him and imposed a sentence of 7 years and 6 months with 3 years non parole period.

[5] Being aggrieved with the conviction he preferred the appeal and submits the following grounds:

"(a) That the Learned Trial Magistrate erred in law and in fact in failing to draw his mind to the Turnbull guidelines on identification and thereby wrongly allowed to dock identification for the first time;

(b) That the prosecution witnesses evidence was inconsistent with each other and thereby his Worship to direct himself with inconsistences of prosecution witnesses;

( c) That the conviction is unsafe in that the charge was wrong in principle."

[6] The 1st ground of appeal is the question of identification.

[7] In Wainiqolo v the State [2006] FJCA 70; AAU0027.2006 (24 November 2006), the Court of Appeal held at paragraph [9]:

"9....the guidelines in Turnbull's case have been accepted as the law in Fiji. They were stated by Widgery LCJ:

"First, whenever the case against an accused depends wholly or substantially on one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms, the judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance?. In what light?. Was the observation impeded in any way, as, for example, by passing traffic or a press of people? Had the witness seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent observation to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?....Finally he should remind the jury of any specific weakness which had appeared in the identification evidence.

Recognition may be more reliable than identification of a stranger but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made."

[8] The Magistrate did not explicitly state the test in Turnbull during the course of his judgment. However, it is abundantly clear that whilst not stating the principles, the judgment clearly shows that the Learned Trial Magistrate clearly relied on them in coming to his ultimate decision.

[9] In Koroicakau v State (2009) FJHC 124; HAA102.2008 (17 June 2009) The Court held on a similar appeal:

"[14] Albeit the trial Magistrate did not explicitly warn herself of the special need for caution before convicting the appellant in reliance on the correctness of the identifications by three prosecution witnesses, the omission in my view was not fatal, because the identification by three witnesses were not a fleeting glance. By following the second limb of the Turnbull guidelines, the trial Magistrate who was an experienced senior lawyer, must have been mindful of the special need for caution in assessing the identification evidence of the three prosecution witnesses. The trials held in the Magistrates' Court are summary trials, unlike trials before the assessors in the High Court. It would be quite unrealistic to expect the Magistrates to state very principle of law in their judgments. As long as the issue is correctly identified and sound reasoning process used in the application of the relevant law to arrive at a conclusion, the judgment will be upheld on appeal.

[15] In the present case the trial Magistrate carefully scrutinized the evidence before accepting it to convict the appellant. The trial Magistrate found the prosecution witnesses observed the two intruders over a long period of time as they searched their house and took them from one room to another. The observations were made in good lighting conditions without anything obstructing their view. The following day, they identified the appellant from an album of photographs. In these circumstances, the learned Magistrate did not err when she allowed dock identification of the appellant and by accepting the identification evidence of the prosecution witness to convict the appellant. Nor do I find the appellant was prejudiced by lack of legal representation."

[10] Considering the judgment of the Magistrate it is abundantly clear that he considered the principle of Turnbull hence I find the ground of appeal fails.

[11] The 2nd ground of appeal is inconsistency among the prosecution witnesses. I carefully perused the evidence led before Magistrate I do not find any inconsistency in the evidence hence I reject the ground of appeal.

[12] The 3rd ground of appeal that the conviction is unsafe and the charge is wrong in principle. There is no objection raised by the appellant at the trial. Considering the charges per se I do not find any illegality. Considering the 1st and 2nd grounds I find this ground of appeal fails on its own merits.

[13] Even though the Appellant has not appealed against the sentence I consider the legality of the sentence. I find the sentence is legal and appropriate I do not find any reason to interfere with the sentence.

[14] Considering all I find all grounds of appeal are failed hence I dismiss the appeal.

[15] Appeal dismissed.

[16] 30 days to appeal.

S. Thurairaja
Judge

At Lautoka
29 November 2012

Solicitors:
Applicant appeared in Person
The Office of the Director of Public Prosecution for the Respondent