State v Draunimasi [2020] FJHC 865; HAA26.2020 (21 October 2020)

IN THE HIGH COURT OF FIJI AT LABASA

In the matter of an appeal under section 246 of the Criminal Procedure Act 2009.

[APPELLATE JURISDICTION]

STATE

Appellant
CASE NO: HAA. 26 of 2020
[MC Taveuni Crim. Case No. 47 of 2016] Vs.

VERESA DRAUNIMASI

Respondent

Counsel : Mr. A. Sen for the Appellant
Ms. A. Vavadakua for the Respondent

Hearing on : 19 October 2020

Judgment on : 21 October 2020

JUDGMENT

Introduction

1. The appellant was charged before the Magistrate Court at Taveuni for one count of assault causing actual bodily harm contrary to section 275 of the Crimes Act 2009. The charge filed on 13/06/16 reads thus;
   

Statement of Offence (a)

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Decree 2009.

Particulars of Offence (b)

ALBERT TUISUE & VERESA DRAUNIMASI, on the 05^th day of February, 2016, at Dawadrikadrika, in the Northern Division, unlawfully assaulted RONALD SHIVNESH REDDY by punching and slapping the said RONALD SHIVNESH REDDY.

2. Subsequently an amended charge was filed on 25/10/17 which reads thus;
   

Statement of Offence (a)

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Act 2009.

Particulars of Offence (b)

VERESA DRAUNIMASI, on the 05 February, 2016, at Taveuni, in the Northern Division, assaulted RONALD SHIVNESH REDDY thereby causing actual bodily harm to RONALD SHIVNESH REDDY.

3. The trial had commenced on 16/01/19, where on that day, the prosecution had led the evidence of three witnesses including the complainant (“PW1”) and had closed the prosecution case. At the conclusion of the prosecution case the counsel who appeared for the appellant during the said trial had submitted that there is no case for the appellant to answer, and in the ruling delivered on 20/03/19, the Learned Magistrate who heard the evidence (“the first magistrate”) has held that there is a case to answer.
   
4. The case was accordingly fixed for further trial on 07/11/19. On 07/11/19 it was a different magistrate who heard the case (“the second magistrate”). However, according to the relevant journal entry the second magistrate had inquired from the parties whether there are any objections for the said second magistrate to continue with the trial or whether the parties wish to have a trial de novo. Both parties have informed the court that they have no objections for the second magistrate to continue with the trial. On the same day, it was submitted that the appellant wishes to remain silent. The judgment was delivered on 20/01/20 where the appellant was convicted as charged. On 31/08/20 the appellant was sentenced to a term of 04 months imprisonment.
   
5. Being aggrieved by the conviction and the sentence, the appellant had taken steps to file a timely appeal on the following grounds of appeal;
   
   1. THAT the Learned Magistrate erred in law and in fact in falling to hold that the prosecution must prove the element of theft beyond reasonable doubt when the accused was charged with Assault Causing Actual Bodily harm contrary to Section 275 of the Crimes Act.
   2. THAT the Learned Magistrate erred in holding that the complainant had properly identified the accused without taking into consideration that he had previously not known the accused and the dock identification was not conclusive or accurate thereby giving the benefit of doubt to the accused.
   3. THE Learned Magistrate erred in failing to analyse the evidence and give reasons for accepting or rejecting the evidence of the witness.
   4. THAT the Learned Magistrate imposed the sentence which was harsh, excessive and unconscionable and further took into consideration irrelevant matters and failed to taken into consideration relevant matters.
   5. THAT the Learned Magistrate erred in law in failing to correctly apply the principles of sentencing before setting a minimum term to be served before pardon may be considered.
      

The factual matrix

6. The prosecution case was that the appellant who was at the material time serving as a police officer has assaulted PW1 on 05/02/16. PW1 had given evidence saying that the appellant and another police officer took him from his house to the police station on an allegation of theft on that particular day and that the appellant and also the other police officer assaulted him on the way and at the police station. PW1 had explained how the appellant had assaulted him. The second prosecution witness (“PW2”) is PW1’s father who had taken steps to arrange for PW1 to be medically examined by contacting DPC Northern after he received a call from PW1. The third prosecution witness (“PW3”) was the doctor who medically examined PW1. PW3 has given evidence on the injuries noted on PW1 during his examination.
   

Discussion

Appeal against the conviction

7. The first three grounds of appeal are against the conviction.
   
8. On the first ground the appellant claims that the Learned Magistrate erred in law by holding that “the prosecution must prove the element of theft . . . when the accused was charged with assault causing actual bodily harm . . . “. This claim is based on paragraph 15 of the impugned judgment where the Learned Magistrate has stated thus;

The prosecution must prove the elements of theft beyond reasonable doubt which are as follows;

(i) the accused
(ii) assault the victim
(iii) causing actual bodily harm

9. The elements listed in the said paragraph are not the elements of the offence of theft, but of the offence of assault causing actual bodily harm. It is manifestly clear that the reference to the offence of theft in the relevant paragraph was a typographical error.
   
10. Thus, the first ground of appeal is devoid of merit.
    
11. The second ground is premised on dock identification. The appellant submits that the dock identification in the case at hand was not conclusive or accurate given that the appellant was not known to PW1 previously. The appellant argues that the dock identification in the instant case should be considered as undesirable and unreliable and relies on the decision in Lotawa v State [2014] FJCA 186; AAU0091.2011 (5 December 2014) in support of this argument.
    
12. It is pertinent to note that, according to the facts of the case at hand, it was not a case of fleeting glance or a case where the observation of the perpetrator was made under circumstances where it was rather difficult or impossible to make a proper observation. The appellant was a police officer and had brought PW1 from PW1’s house to the police station on the relevant day and according to PW1 he was assaulted on several occasions. The evidence suggests that there was ample opportunity for PW1 to make a proper observation and identify the appellant where PW1 had later made reference to the appellant even as PC Veresa. Therefore, the dock identification made in the instant case cannot be regarded as impermissible. It was indeed relevant and admissible.
    
13. In the case of R. v Turnbull [1977] Q.B. 224 Lord Widgery CJ observed thus;
    

When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.

14. When it comes to a trial by jury, if the only evidence on identification of the accused would be the dock identification and the quality of the identifying evidence in the case is poor where the evidence reveals that the relevant witness or the witnesses only had a fleeting glance of the perpetrator, or though there was a longer observation of the perpetrator where the said observation was made in very difficult conditions that would suggest that the relevant identification is unreliable, then, in such circumstances, dock identification would be extremely prejudicial. It stands to reason, in such a case tried before jurors who would make the final determination on the facts, for the judge not to allow a dock identification.
    
15. However, the situation is not the same when it comes to a trial by a magistrate alone or a trial before assessors where the final decision is made by a judge. In a trial where the final decision on the facts rests upon a judge or a magistrate, even a dock identification is carried out where the evidence on identification by that relevant witness depended on a fleeting glance or on a longer observation made in difficult conditions, if the final judgment demonstrates that there was sufficient evidence in the case to establish the identity of the accused and the judge or the magistrate was mindful of the danger that the relevant witness may have assumed that the person in the dock is the person who committed the offence simply because of that person’s presence in the dock, then, the relevant dock identification cannot be taken to have caused a miscarriage of justice.
    
16. In the case of Maxo Tido v The Queen [2011] UKPC 16 (Privy Council Appeal No 0003 of 2010) where the judicial committee of the Privy Council advised Her Majesty that the appeal against the conviction should be dismissed, Lord Kerr who delivered the judgment observed thus;
    20. In Holland v HM Advocate it was not suggested that dock identifications were only to be permitted in the most exceptional of circumstances. On the contrary Lord Rodger (at para 57) stated that there was no reason that dock identifications should be regarded “except perhaps in an extreme case” as inadmissible per se either under domestic law or the European Convention on Human Rights and Fundamental Freedoms. Lord Rodger again returned to the theme of the importance of the directions that the trial judge gives to the jury about the possible dangers of dock identifications. He was at pains to point out that these dangers were not sufficiently conveyed to the jury by the rehearsal of standard directions as to the risks associated with eye-witness evidence generally.
        

21. The Board therefore considers that it is important to make clear that a dock identification is not inadmissible evidence per se and that the admission of such evidence is not to be regarded as permissible in only the most exceptional circumstances. A trial judge will always need to consider, however, whether the admission of such testimony, particularly where it is the first occasion on which the accused is purportedly identified, should be permitted on the basis that its admission might imperil the fair trial of the accused. Where it is decided that the evidence may be admitted, it will always be necessary to give the jury careful directions as to the dangers of relying on that evidence and in particular to warn them of the disadvantages to the accused of having been denied the opportunity of participating in an identification parade, if indeed he has been deprived of that opportunity. In such circumstances the judge should draw directly to the attention of the jury that the possibility of an inconclusive result to an identification parade, if it had materialised, could have been deployed on the accused’s behalf to cast doubt on the accuracy of any subsequent identification. The jury should also be reminded of the obvious danger that a defendant occupying the dock might automatically be assumed by even a well-intentioned eye-witness to be the person who had committed the crime with which he or she was charged.

17. As noted in the above excerpts, Lord Kerr had demonstrated in Tido (supra) that the decision in Holland v HM Advocate [2005] UKPC D1; 11 May 2005 (which Lotawa (supra) appear to have followed) does not suggest that dock identifications were only to be permitted in the most exceptional of circumstances.
    
18. All in all, given the circumstances of the instant case as revealed in the evidence, there is no basis to challenge the dock identification. On the other hand, it should be noted that the relevant court record and the ruling on ‘no case to answer’ submissions does not indicate that an objection was raised before the Learned Magistrate when the dock identification was carried out. In fact, there is a finding in the said ruling (at paragraph 21) to the effect that there is no doubt about the identity of the defendant, which is not challenged in this appeal.
    
19. In the light of the foregoing discussion, ground two should fail.
    
20. On the third ground of appeal, the appellant claims that the Learned Magistrate failed to analyse the evidence of the witnesses and to give reasons for accepting or rejecting the evidence of the witnesses.
    
21. As it was noted above, the Learned Magistrate who gave the judgment was not the same Magistrate who heard the evidence for the prosecution and who also found that there is a case to answer in the case at hand. Admittedly, the appellant does not appear to have had any intention to rely on the said fact in support of this third ground of appeal as clearly noted from the manner in which this ground of appeal is drafted and also the submissions made in relation to this ground in the written submissions.
    
22. During the oral submissions however, the counsel for the appellant having realised in open court that the said decision on ‘no case to answer’ had been taken by a different magistrate, submitted that the Learned Magistrate who delivered the judgment (the second magistrate) was not in a position to observe the demeanour of the prosecution witnesses, especially PW1.
    
23. It is pertinent to note that the decision made on the ‘no case to answer’ submission is not challenged by the appellant as I have already pointed out. As I have observed in the case of FICAC v Reddy [2018] FJHC 525; HAA50.2017 (22 June 2018) during a trial before a magistrate and at the conclusion of the prosecution case, there are two questions or rather two tests to be dealt with by the magistrate in deciding whether there is a case for the accused to answer. The first question is, whether there is credible and reliable evidence on each element of the relevant offence and, the second is, whether the evidence presented by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal would safely convict the accused on that evidence. [Moidean v Reginam (1976) 22 FLR 206]
    
24. Therefore, when a magistrate decides that there is a case to answer on a particular charge, that magistrate is in fact making a finding that there is relevant and admissible evidence on all the elements of the charge and that that evidence is not discredited as a result of the cross-examination and is not manifestly unreliable to the extent that a reasonable tribunal would not safely convict on that evidence. It is clear from the relevant ruling made on 20/03/19 that the first magistrate who made the decision that there is a case for the appellant to answer, was mindful of both the above tests and that he had found that both tests have been met given the case presented by the prosecution. This finding is not challenged by the appellant.
    
25. It is pertinent to note that the credibility of a witness is not solely dependent on the demeanour of that witness when the evidence of that witness is given in court. A trier of fact may or may not rely on the demeanour of a particular witness in deciding the credibility of the evidence given by that witness. There is no mandatory requirement that a trier of fact should in every case comment on the demeanour of every witness who had given evidence. On the other hand, the first magistrate who heard the evidence of the prosecution witnesses had made an informed decision on the credibility of the prosecution witnesses before the appellant was required to make a defence in terms of section 179(1) of the Criminal Procedure Act. For these reasons, I find that the appellant has not been materially prejudiced and no miscarriage of justice has occurred due to the fact that the second magistrate who gave the judgment on 29/01/20 did not have the opportunity to observe the demeanour of the prosecution witnesses.
    
26. Moreover, having perused the ruling on ‘no case to answer’ and paragraphs 16 to 23 of the impugned judgment, I am satisfied that there is sufficient and a proper analysis of the evidence adduced in the instant case vis-à-vis the elements of the relevant offence the appellant is convicted of. The appellant has not demonstrated that the credibility or reliability of the evidence of PW1 or any other prosecution witness was thwarted due to any particular reason (consistency, belatedness, spontaneity, probability, means of opportunity, etc.) and that the second magistrate had failed to take such matter into account in analysing the evidence.
    
27. For the purpose of completeness I consider it necessary to refer to section 139 of the Criminal Procedure Act which reads thus;
    139. (1) Subject to sub-sections (1) and (2), whenever any magistrate, after having heard and recorded the whole or any part of the evidence in a trial, ceases to exercise jurisdiction in the case and is succeeded (whether by virtue of an order of transfer under the provisions of this [Act] or otherwise), by another magistrate, the second magistrate may act on the evidence recorded by his or her predecessor, or partly recorded by the predecessor and partly by second magistrate, or the second magistrate may re-summon the witnesses and recommence the proceeding or trial.

(2) In any such trial the accused person may, when the second magistrate commences the proceedings, demand that the witnesses or any of them be re-summoned and reheard and shall be informed of such right by the second magistrate when he or she commences the proceedings.

(3) The High Court may, on appeal, set aside any conviction passed on evidence not wholly recorded by the magistrate before whom the conviction was had, if it is of opinion that the accused has been materially prejudiced, and may order a new trial.

28. Firstly, the provisions of section 139(1) above, allows a magistrate to act on the evidence recorded by the said magistrate’s predecessors and to continue with a part-heard trial.
    
29. In the case at hand, before proceeding further the second magistrate had inquired from both parties whether they wish to have a trial de novo and both parties have clearly informed that they have no objections for the continuation of the trial. I do note that the said second magistrate had not specifically informed that the appellant has the right to demand all or any of the witnesses to be re-summoned and reheard. However, given the fact that the appellant was represented by a lawyer and the fact that no issue is raised in this appeal regarding the manner in which the second magistrate has given effect to the provisions of the said section 139(2), it is safe to assume that the appellant was aware of the relevant right and it is manifestly clear that the appellant and both is lawyers, the one who represented him at the trial and the present counsel who represents him in this appeal, had not deemed it necessary for witnesses to be re-summoned before the second magistrate.
    
30. More importantly, it is understood from the provisions of section 139(3) above that the failure of a magistrate to inform an accused in terms of section 139(2) in those precise terms is not fatal to a conviction and such a conviction is not liable to be set aside automatically on appeal. This is because the said section 139(3) expressly provides that the high court may set aside a conviction passed on evidence not wholly recorded by the same magistrate (only) if it is of the opinion that the accused has been materially prejudiced.
    
31. Given all the circumstances of this case alluded to above, I find that the appellant was not materially prejudiced due to the reason that he was not informed by the second magistrate in terms of section 139(2) in those precise terms.
    
32. For the reasons above, the third ground of appeal should fail.
    

Appeal against the sentence

33. Grounds four and five are against the sentence. The counsel for the appellant during the hearing of this appeal admitted that the fifth ground of appeal has been included in the petition of appeal inadvertently and he withdrew the said ground. Accordingly the fourth ground of appeal is the sole ground against the sentence.
    
34. The only relevant submission made by the counsel for the appellant on this ground of appeal is that the Learned Magistrate had considered irrelevant matters in sentencing the appellant. The counsel for the appellant argues that the fact that the appellant assaulted a suspect in a case being investigated by the appellant in his capacity as a police officer and while on duty is an irrelevant factor for the purpose of sentencing. This argument is frivolous. The fact that the appellant had assaulted a suspect while he was executing his duties as a police officer is indeed an aggravating factor that would warrant an increase of the sentence.
    
35. The Learned Magistrate has clearly explained the process through which he arrived at the sentence of 04 months imprisonment and has further explained why he does not consider it appropriate to suspend the said sentence. In fact I find the sentence imposed by the Learned Magistrate to be relatively lenient given the circumstances of this case. The appellant had failed to demonstrate that the Learned Magistrate has fallen into error in exercising his sentencing discretion in line with the pronouncement in the case of Kim Nam Bae v The State [AAU0015 of 1998S (26 February 1999)].
    
36. Accordingly the fourth ground of appeal should fail.
    

Conclusion

37. In the result, I have decided that the appeal against the conviction and the appeal against the sentence should be dismissed and that the conviction against the appellant and the ensuing sentence should be affirmed.
    

Orders;

1. The appeal against the conviction and the appeal against the sentence are dismissed; and
2. The conviction entered by the Learned Magistrate in Magistrate Court of Taveuni Crim. Case No. 47 of 2016 on 29/01/20 and the sentence imposed on 21/08/20 are hereby affirmed.
   

Vinsent S. Perera
JUDGE

Solicitors:

Maqbool & Company, Barrister & Solicitor Labasa for the Appellant
Office of the Director of Public Prosecutions for the Respondent