Namua v State [2018] FJHC 448; HAA07.2018 (31 May 2018)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
IN THE WESTERN DIVISION
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: 07 OF 2018

BETWEEN

PAULA NAMUA
Appellant

AND

STATE
Respondent

Counsel: Appellant in Person

Mr. S. Babitu for Respondent

Date of Hearing: 30^th April, 2018
Date of Judgment: 31^st May, 2018

JUDGMENT

1. This is a timely appeal filed by the Appellant against the conviction entered by the Learned Magistrate at Lautoka on the 7^th of November, 2017.
   
2. The Appellant was charged in the Magistrates Court at Lautoka with one count of Robbery contrary to Section 310 (10) (a) (i) of the Crimes Act 2009.
   
3. After the trial, the Appellant was found guilty and convicted. On the 3^rd of January, 2018. He was sentenced to 3 years and 8 months’ imprisonment with a non-parole period of 2 years.
   
4. The Appellant does not appeal his sentence.
   

Grounds of Appeal

5. On his Notice of Appeal dated 20^th of December 2017, he appeals his conviction on the following grounds;

1. That the Learned trial Magistrate erred in law in failing to warn himself and direct his mind on the burden and standard of proof when delivering his Judgment.
   
2. That the Learned Magistrate acted upon wrong principle when he failed to allow adjournment when the Appellant failed to turn up with his witnesses for continuation of hearing and he proceeded to the Judgment in absentia.
   
3. That the continuation of trial in absentia is not in compliance with Section 13 (1) (h) of the 2013 Constitution and he was prejudiced due to lack of legal representation.
   
4. That the Learned trial Magistrate erred in law in failing to warn himself and direct his mind to Turnbull guidelines in respect of identification.
   
5. That the Learned trial Magistrate erred in law in allowing dock identification which deviate from the established principle required in law.
   
6. That the Learned trial Magistrate erred in law in allowing the inconsistent out of Court evidence and evidence on oath of both witnesses of the prosecution.
   

Factual Matrix

6. On the 19^th of November, 2016, at about 10.30 am, the complainant was waiting for a taxi at the Thompson Crescent Junction at Tavakubu Road. A man came down from Gold Link side sniffing a piece of cloth that looked like an underwear. As the complainant was waiting for a taxi, he crossed the road, approached the complainant and pulled her bag. This man started to swear at the complainant. He pulled the shirt of the complainant whereby the complainant fell on the ground. Then this man punched the complainant on her right shoulder and took a pouch which was inside her bag. The pouch contained $300.00. He fled the scene after the robbery. A woman constable managed to recognised this man as the Accused Paula, a known criminal in her area.
   
7. Upon filing his submissions on the 20^th of March, 2018, the Appellant, in his written submission submits that he is only relying on grounds ii, iii, iv, v and vi.
   

Analysis

Grounds ii and iii – Adjournments on request and Trial in absentia

8. The Appellant complains that when his matter was adjourned after his evidence for his alibi witnesses to be called, on 25^th of September, 2017 at 2.00 pm, the learned Magistrate proceeded to trial in absentia without taking into consideration the fact that he found it difficult to locate his alibi witnesses.
   
9. The trial of the Appellant was to take place on the 14^th of March, 2014. Before 14^th of March, 2018, the learned Magistrate properly explained the right to Counsel. The Appellant waived his right to be represented by a legal practitioner of his choice. He took it upon himself to defend his case.
   
10. It appears that the Appellant had not given any notice of alibi under Section 125 of the Criminal Procedure Act 2009 to the prosecution and had not informed the Court that he is intending to call alibi witnesses. Still, the learned Magistrate had given about 6 months from March, 2017, to contact Appellant’s alibi witnesses. The Appellant failed to take the opportunity and failed to appear in Court without a valid reason.
    
11. The decision by the Learned Magistrate was not erroneous in law. Under Section 171 it states as follows:
    

Non-appearance of parties after adjournment

171.-(1) If at the time or place to which the hearing or further hearing is adjourned-

(a) the accused person does not appear before the Court which has made the order of adjournment, the court may (unless the accused person is charged with an indictable offence) proceed with the hearing or further hearing as if the accused were present; and

(b) if the complainant does not appear the Court may dismiss the charge with or without costs.

(2) If the accused person who has not appeared is charged with an indictable offence, or if the Court refrains from convicting the accused person in his or her absence, the Court shall issue a warrant for the apprehension of the accused person and cause him or her to be brought before the Court. (My Emphasis)

12. According to the Court Record at page 25, the learned Magistrate had asked the Appellant if he could call his two witnesses. The appellant had answered in the affirmative. The matter was then adjourned to 2.00 pm on the 24^th of November, 2017, for continuation of trial. The case was called twice that, at 2.30 pm and at 3.30 pm. However, the Appellant failed to appear. The learned Magistrate decided to fix the matter for Judgment and a bench warrant was issued for the Appellant.
    
13. The case was called again on the 27^th of November, 2017, the date to which the bench warrant was extended. The learned Magistrate than delivered the Judgment in the absence of the Appellant. He cited Section 171 of the Criminal Procedure Act 2009 as the basis for his decision.
    
14. Section 171 of the Criminal Procedure Act 2009 gives the Magistrate discretion. As in all cases, discretion must be exercised after consideration to the facts and the law. In this appeal, the Learned Magistrate gave an adjournment of 3 days after which Police prosecution tendered a bench warrant report. The report established that checks were made at the appellant’s residence and other places given by the Appellant’s relatives. The Learned Magistrate had then said that the Appellant had absconded Court willfully and decided to deliver the Judgment in the absence of the Appellant.
    
15. In the Appellants written submissions, he emphasized the fact that no statements or affidavit was in the Court record to substantiate the prosecutions application. With all due respect to the Appellant, he seems ill-advised. The Appellant had on his own volition chose not to appear for his case knowing full well that the case was adjourned for him to call his witnesses. The question in our respectful submission should be, in not appearing has the Appellant freely chosen not to be present in his trial? His submissions seems to place the burden on the prosecution to explain why he was not present which is both a farfetched supposition and one that needs no analysis for the fact that it is nonsensical.
    
16. To find out the reasons for non-appearance, his appearance after the execution of the bench warrant would show that he made no reasoning on why he never turned up to Court on the 13^th of December 2017. It could be safely said at this point that the Appellant chose not to call his witnesses, whom he chose freely not to call by absconding.
    
17. The State relies on the case of Peniame Drova v State Criminal Appeal No. HAA 23 of 2012. One of the grounds of appeal by Peniame Drova dealt with Section 171 of the Criminal Procedure Act 2009. Peniame Drova had not attended his trial in the Magistrates Court and went overseas to play soccer. The Magistrate who was hearing his matter proceeded in trial absentia. Justice Madigan noted the following at paragraph 8 of the said Judgment,
    

“8. This being a summary offence, there is no reason why the appellant should not have been tried in absentia, especially when in the knowledge of the hearing date he deliberately absented himself by leaving the jurisdiction. By doing so he is waiving all rights to be heard at the hearing.”

18. It is the respectful submission of the Respondent that the Learned Magistrate had correctly taken the appropriate consideration in exercising his discretion to proceed. The Appellant failed to show why he did not show up when the case was adjourned for him to call his witnesses. By doing so, the Appellant had waived all his rights to be heard at the hearing.
    

Ground iv and v- Identification

19. The Appellant submits that he did not commit the said offence there were issues of identification in the trial.
    
20. In R v /u> [1996] 1 Cr 1 Cr. App. R191 the Court of Appeal stated at page 197 that:

"The Turnbull direction needs to be given in those cases where the case against the accused dependlly ostantially on then the correctness of an identification of n of the accused which the defence alleges to be mistaken."

21. In R v Curry and R v Keeble [1983] Crim LR 737, the trial judge had told the jury to be aware of the risk of mistaken identification and to evaluate it, and that the risk would be high where the sighting had only been a fleeting glance, but that in every case it was a matter of degree. The defence appealed on the basis that there should have been a full Turnbull warning. The English Court of Appeal dismissed the appeal stating that the warning in Turnbull was not intended to deal with every case involving a minor identification problem but only with the ghastly risk run in cases of fleeting encounters.
    
22. This is a case where the case against the accused depends wholly or substantially on the correctness of an identification of the accused which the defence alleges to be mistaken.
    
23. The leading case for Identification in Fiji is R v Turnbull (1977) 1 QB 224. The case gives guidance in a case where the case against the accused depends wholly or substantially on the correctness of identification of the accused which the accused says to be a mistake.
    
24. In this case, two witnesses place the Appellant at the scene, the complainant and a Police Officer, WPC Maneisi Likuvalu who was in her car and recognized the Appellant as the person who committed the robbery.
    
25. The Appellant in this case was walking towards the complainant with no obstruction in sight to block the complainant’s view of his face. The robbery had happened in broad day light and the Appellant did not have his face covered. The complainant had observed the Appellant for some time before the offence happened. There was no Identification Parade that was done because not only the complainant identified the Appellant as the person that committed the robbery but also the Police Officer who recognized the Appellant as the person she saw robbing the complainant. It is our respectful submission that the Prosecution was able to prove identification through the Police Officer if there were questions about identification in relation to the complainant’s evidence.
    
26. Police Officers have often been said to possess certain skills from their work environment and one of those is identification of people. It is important we think that the Police Officer recognized the Appellant as she had investigated a case against him for damaging property. She specifically stated in her evidence that she thought the victim in this case was the wife of the Appellant. It is the State’s submission that this formed the special reason for remembering the Appellant when she saw him on the said day.
    

Ground 5

27. The last ground of appeal seems to suggest an issue of inconsistency between the evidence in Court and the statement given to the Police by the victim.
    
28. The State submits that the ground lacks merit. The victim clearly identified the Appellant without any obstructions in her sight. She identified the Appellant as it was in broad daylight and she had observed him for some time.
    

Conclusion

29. The State respectfully submits that the grounds submitted by the Appellant lacks merit and should fail.
    

Aruna Aluthge
Judge

At Lautoka

31^st May, 2018

Solicitors: Appellant in Person

Office of the Director of Public Prosecution for Respondent