IN THE MAGISTRATES COURT AT NASINU
(In the matter of Extended Jurisdiction of the High Court)

High Court Case No: HAC 154/2012
Criminal Case No. 483/2012

STATE

-v-

ERONI QIO
QIO SAMUEL CABEMAIWASA (dealt with)
TUKISI MATAVESI BOLAKORO (dealt with)

PC Ravi and PC Raymond for the prosecution
The Accused appeared in person

1] Initially, this is an extended jurisdiction matter, which was sent by the High Court. In this matter the accused is charged with following counts with two others. The 2nd and 3rd accused pleaded guilty to the charge at the very outset and matter has been death with regards to them. The 1st Accused pleaded not guilty to the following charges;

CHARGE:
FIRST COUNT
Statement of Offence [a]

2] INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

ERONI QIO and SAMUEL CABEMAIWASA on the 29th day of April, 2012 at Nasinu in the Central Division unlawfully and indecently assaulted ALITI RADINIBEQA.

SECOND COUNT

Statement of Offence [a]

3] AGGRAVATED ROBBERY: Contrary to Section 311 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

ERONI QIO, SAMUEL CABEMAIWASA and TUKISI MATAVESI BOLAKORO on the 29th day of April, 2012 at Nasinu in the Central Division, robbed one ALITI RADINIBEQA and stole a Nike nap sack bag valued $30.00, Asics canvas valued $300.00 all to the total value of $330.00 the properties of the Tevita Kapaiwai.

4] Trial dates were 31-10-2012, 25-01-2013 and 11th March 2012. To prove their charges the prosecution called following witnesses.

 5] PW1- Aliti Radinibeqa. : She said that she is 18 years old, a student of Nasinu secondary school. She recalled 28th April 2012. She got off Nasole Bus Stop around 3-4am early morning and her friend Tevita Kapawale was with her. They took short cut to Kalubu Housing. On their way she heard some boys are making noises. She said the girl was behind them was assaulted by group of youth and she asked her boy friend to stay way and them to go first. The boy who was in front touched her bum she then swore at him. She said she can’t identify him as she did not see him really. There were 5 to 6 boys. When she swore he got angry with her they were face to face. He punched once to her right eye and she was pulled down. Then, that man and group of other youths were touching her breasts and searching her pocket. She did not have any money. He asked where she was staying. She gave wrong address. When, they pulled her, they punched Tevita as well. They took her friend’s bag. She said after the incident, she called the police. The police came and on their way to police they met group of boys at cross cut. She said they were the boys who robbed them. She said that the accused was wearing a black jacket, cardigan and she identified them. The one who punched her was not arrested and he was still sitting. He had changed his clothes, he was wearing BSP green T shirt. The victim said that she can identify him as first accused, who is in the court. 

6] In the cross examination the witness said that the statement was given to the police by her is true. She told that she was not coached by the police. The group of Fijian boys touched her bum and poked her bum. She said she is not telling lies. Her Statement tendered as DEX-1.

7] PW2- PC 4581-Sabua; He said 29th April 2012, early morning he was doing standby duties. Around 4pm they received robbery of Kewals yards. They were mobile patrolling and it was received by RT (Radio Telecommunication message). When they reached the place, the victim and her boy friend was there. They said they were robbed by 3 Itaukei boys. On their way to police, gang of people were drinking liquor. When they passed them the victim identified 3 people who robbed them at the scene. They were identified by their clothes and one of them was wearing the victim’s boy friend’s black bag. He said he arrested 2 suspects first because the vehicle was lack of space. The third suspect was wearing black jacket and he did not question him, but he was drinking amongst those people. He said that he knew the 3 suspect ever since he joined the police force. They recovered canvas and black bag. While statement of victim was being recorded another officer went to get 3rd suspect. The witness tendered black bag as EX-1 and identified it was recovered from one of suspect. The witness said that victim expressed the suspect as dark complexion, was wearing a black jacket, he was the one who was touching her breasts. The complexion matches Eroni Qio, the first accused. 

8] In cross examination the witness said that he is the investigating officer. He said he was present in the station when the accused was brought to the police station. He said the accused is well known criminal in the area so, he identified him as a culprit. The witness was questioned “Did the complainant tell you a vivid face and feature of description? No sir”. The witness said that a boy wearing a black cardigan robbed the early morning. He said they took complainant to the hospital and if a punch a woman on the face, there will be visible injuries. The witness admitted that he prepared summary of facts. The witness admitted there was a proper identification. He said “For the purpose of being record by the Court when you told the Court that day that you conduct no identification parade you never found me in a black cardigan and the complainant never made positive identification made description of the robber face and features was this proper investigation? Yes Sir”.
 
9] PW3- DC Vinod 2561: He said while they were patrolling they received a report regarding robbery and they went to Kewals yards. At Nasinu Road they met the victim and her boy friend. They said they were robbed by 3 Fijian men; one is dark wearing black cardigan. She said the accused poked her private part. They boarded them to the jeep when they were coming through Nasinu road they saw group of people were drinking. The victim asked them to stop and she identified 3 of them as robbers. They arrested 2 of them and she insisted to arrest 3rd one wearing black jacket and dark complexion. He further said “Which 2 you arrested? First one we arrested the one who was wearing a bag and another guy. And victim kept on pointing there’s another one. She pointed at the person wearing black jacket and dark in complexion. So we told that girl we have identified the accused person.” Pw3 said this accused is regular customer that means he is known for committing offences. They first two accused. When the 3rd, this accused was brought to the station, he was wearing green t shirt. He had changed the black jacket. The green jacket tendered as EX-2 and black jacket tendered as EX-3, both were identified by the witness. 

10] In the cross examination he said he know the difference of boy and grown up. But the witness failed to give description to the accused whether he is a boy or grown up adults. He admitted there was no proper identification parade was held.

11] By consent the accused caution interview tendered as EX-4. Thereafter the prosecution closed its case. The court held there is a case to answer. The right to call defence is explained. The accused opted to give sworn evidence. The accused said “I can recall the 29th day I was drinking beer in town at Gipsy Night Club. And I left around 1 – 2pm. 2am in the morning. I came by taxi and I bought a carton of beer from a black market here in Nasinu and I went towards Lagakali Road. At the junction of Lagakali and Clifton Road I met Peniasi Naibota Nikaidreu and Sikeli Rogavatu. So I asked the driver to stop. I paid for the fare. I got off the taxi and started drinking with few of my friends. Whilst drinking beer Police approached us. They asked me to get in the vehicle. They arrested me and they handcuff me. And got me inside the…..Without explaining to me the reason of the arrest they handcuff me and brought me inside the vehicle and took me to the Police Station. And they lock me up in the cell at the Station. And in the morning I was interviewed. From interview I got to know that I was being charged for an offence. And I remain silence in all allegation against me since my mind was not in a good state, since I was drunk from the previous night. I did not give any information and also I did not sign any statement. And they charge me for this offence. I would like to confirm this Honorable Court I did not know of any happenings to this case. And for the evidence that has been submitted to Court is the first time for me to see the jacket and the green T-Shirt. That’s all I want to tell the Court this morning”. 

12] In the cross examination the accused said he cannot recall he was at Gipsy Night club as he was drunk. When he was drinking he was wearing green T shirt. The prosecution suggested the accused is lying to court which he denied.

13] The accused wanted to call Sikeli and court allowed several dates to call him, but he was not called and the accused finally closed his case. 

14] Two serious charges have been leveled against the accused by the prosecution. The first charge is under Section 212 (1) of the Crimes Decree No. 44 of 2009. It says; 

“212. — (1) A person commits a summary offence if he or she unlawfully and indecently assaults any other person. 

Penalty — Imprisonment for five years.”

15] The second charge is under Section 311 of the Crimes Decree No. 44 of 2009. It says; 

“311. — (1) A person commits an indictable offence if he or she — 

(a) commits a robbery in company with one or more other persons; or 

(b) commits a robbery and, at the time of the robbery, has an offensive weapon with him or her. 

Penalty — Imprisonment for 20 years”. 

16] This is a criminal case; the prosecution is required to satisfy the Court that the defendant’s guilt is “beyond reasonable doubt.”

17] The standard of proof to convict the accused in a criminal case, Lord Denning had this to say:

“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “Of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt; nothing short will suffice.”

18] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

“The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused’s guilt. That is not the correct test. The correct test is whether you have any reasonable doubt about the guilt of the accused.”

19] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 June 2008) Justice Jocelynne A. Scutt in Her Ladyship’s summing up said;

 “The question then is what the standard of proof is. That is, when the onus rests on the State as it does here and generally in criminal trials, what is the standard the State must meet? The State must prove all the necessary ingredients of the charge.... beyond reasonable doubt. Proof beyond reasonable doubt means what it says. You must be sure; you must be satisfied of guilt, before you can express an opinion about it. Only if you are sure, if you are satisfied beyond reasonable doublet of guilt, then it is your duty to say so. If you are not sure, not satisfied beyond a reasonable doubt, then you must give your opinion that the accused is not guilty. This assessment, this determination, rests with you – with each of you – upon your individual assessment of the evidence.” (Emphasises is mine) 

20] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen reported in 72 New Law Reports 313 (Sri Lanka) 

“A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

21] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and “one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim “Ex qui affirmat non ei qui negat incumbit probatio”. On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim “In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur” have to be noted. 

22] In line with the above principles, I now consider evidence before me. The PW1 says that the accused indecently assaulted her by touching breast and poking bum. She said she was robbed by during the course of this incident. She was with her boy friend Tevita. The victim said she can positively indentify this accused. The accused had file closing submissions. His main contention is mistaken of identity. The accused said that he was arrested on suspicion and later this charge was put against him. There were two accused and they pleaded guilty to the charge. The victim was attacked by three persons. The prosecution says the third one is this accused. During the trial, it transpired that the accused is known previous offender and he was close to the proximity of the offence whist he was arrested. The main burden is the Court to decide is he the real person? 

23] If a question arose regarding identity, the court should apply Turnbull rules. In R v Turnbull  (1977) Q.B.224, [1976] 3 WLR 445 ,(1977) 65 Cr. App. R. 242,LORD WIDGERY C.J. articulated special guidance on visual identification. 

a] “whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, judge should warn the jury or the special need for caution before convicting the accused in reliance on the correctness of the identification”

b] " the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made”. Then following questions need to be considered.

i. How long did the witness have the accused under observation?

ii. At what distance?

iii. In what light?

iv. Was the observation impeded in any way as for example by passing traffic or a press of people?

v. Had the witness ever seen the accused before?

vi. How often?

vii. If only occasionally, had he any special reason for remembering the accused?

viii. How long elapsed between the original observation and the subsequent identification to the police?

ix. 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?

c] “He (Judge) should remind the jury of any specific weaknesses which had appeared in the identification evidence”

d] “Recognition may be more reliable than identification of a stranger”

e] “if the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened, but the poorer the quality, the greater the danger".

24] The sole identification is Pw1’s dock identification. There was no proper identification parade was held. In applying above principle, I now consider that the evidence placed before me. 

i. How long did the witness/es have the accused under observation? About 2 minutes (fleeting type)

ii. At what distance? Face to face 

iii. In what light? Street light 

iv. Was the observation impeded in any way as for example by passing traffic or a press of people? The victim was punched on face by the assailant; this is an impediment to identify. 

v. Had the witness ever seen the accused before? No

vi. How often? Not applicable 

vii. If only occasionally, had he any special reason for remembering the accused? There is no special reasons

viii. How long elapsed between the original observation and the subsequent identification to the police? After two three hours in the close vicinity, but had changed the Black cardigan to Green BSP T shirt. 

ix. 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? Only description is given was the accused is dark in complexion, Fijian man. 

25] In 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.

26] In Daley y. R. (1994) 98 Cr. App. R. 447 a decision of the Privy Council on an appeal from Jamaica it was:

"Held: allowing the appeal, that where the quality of the identifying evidence is poor, or so slender as to be unreliable and there is no other evidence in support of identification, then the judge should withdraw the case from the jury. ... In the instant case, considering the weaknesses of the identification evidence, the case should have been withdrawn from the jury."

27] It is to be noted that victim identified the accused in the dock and the police station. But there was no proper ID parade was held. The courts in England had disapproved of the practice of allowing dock identifications as the first identification since the first sighting. In R v Hunter [1969] Crim LR 262

“Dock identification raises a different point: the reliability of the identification of the suspect as the person seen in the initial sighting. ... but the courts had, for a very long time, taken the view that dock identification itself is undesirable”

28] Dock identification is dismissed several overseas commonwealth/common law jurisdictions see; R v Horsham JJ ex p Bukhari [1981] 74 Crim App R 291, Cartwright [1914] 10 Crim App R 219 , Caird [1970] CrimLR 656, and The Queen v Rangi Tawea Walker [2000] NZCA 42, 9 March 2000. But in this case there was no Proper Identification Parade was held but the victim told that she is 100% sure that the accused is the culprit. But she had never seen him before and only identical mark is colour in dark complexion. When, she saw first time at that night in the street he had changed the T shirt. But according to the PC Vinod, they first dropped victims at the police station and at that time he was wearing a black cardigan. When they caught him, he had changed to Green BSP T shirt. This is contrary to PW1's evidence. She said when they saw, the accused had already changed. But this was disproved by PC Vinod. Thus, there are material contradictions between evidence inter se. 

29] Again, the PW1 said that the accused was wearing black cardigan at that time. She said when she was the accused at the close vicinity before arrest, he was wearing green BSP T shirt. These items were tendered though police witnesses as Exhibits but never showed to the PW1 to identify it. The stolen bag is also produced in court but it was never showed to the PW1 to identify that it was the stolen items. PW2, Tevita, boy friend of the victim was never called to strengthen the prosecution. PC Vinod told to court that the assault was touching the private part. But this is contrary what the victim said was the accused fondled her breasts and poked her bum. She never told that her private parts were touched. The summary of facts also did not reveal any touching of private parts (Vagina). The Defence tendered the victim's statement as DEX-1. In that statement the victim mentioned "Another boy who fondle my breast and poke me on my arse and pulled the bag from me. His name was Simmon". There were no accused called Simmon in this case. 

30] The onus of proving charges lies on the prosecution. The accused gave sworn evidence. He denied the charges in the court and he had remained silence in the caution interview as he was drunk and his state of mind was not stable. The accused has no liability to prove his innocence. 

31] In the light of above evidence, though the PW1, categorically says the accused is the culprit, I am of the view the accused's identity is not prove beyond reasonable doubt. She may have mistaken the identity of the accused. It is sine qua non to prove that the accused committed the crime, no one else. Without proving proper identity of the accused, it is unsafe to convict the accused to the charges. The benefit of doubt must be given to the accused. I therefore hold the prosecution has failed to prove its charges beyond reasonable doubt. 

32] I acquit and discharge the accused forthwith. 

33] 28 days to Appeal

On 01st May 2013, at Nasinu, Fiji Islands.

Sumudu Premachandra
Resident Magistrate-Nasinu