State v Rahiman [2013] FJMC 412; Criminal Case 1175.2010 (28 November 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 1175/101

State

V

Simon Joseph Rahiman

Prosecution: Cpl Vili (Police Proseuction)
Accused: Present – Mr Fesiatu (Legal Aid)

Judgment

Introduction

Simon Joseph Rahiman is charged with criminal trespass, contrary to Section 387 (1) (a) of the Crimes Decree 2009.

The Standard and Burden of Proof

The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "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 doubt. The law would fail to protect the community if it admitted 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, but nothing short of that will suffice."

The Evidence

The prosecution called 2 witnesses. The accused gave sworn evidence. The Court has noted all the evidence that was given in Court and the documents that were tendered.

Analysis of Evidence in Relation to the Law

This Court has analysed all the evidence given by all the witnesses in this case. The onus was on the prosecution to prove the elements of the offences the accused was charged with.

PW-1, Ana Loma, the complainant in this case gave evidence that she was staying at Namosi Lane on 3rd July 2011. She also told the Court that at half past 5 her son woke up to go to the wash-room. After 15 to 20 minutes she felt somebody on top of her, kneeling. She thought it was her son. She then heard whispering, opened eyes saw a man's face in front of her. It was the first time she saw the face. She shouted and wanted to get up. The neighbours heard the shout. He pushed her down. She kicked his thighs, he fell. The lights in the house were off. She could get light from outside. In cross-examination she agreed that at 5.30 am it was still dark. Light in room was off. She could confirm the accused's face as the one she saw that morning. She could recognize her assailants face and his height.

Pw-2, DC Pranil informed the Court that he was the investigating officer and he charged the accused. His evidence was that the accused was identified at MH by the complainant and she sought police assistance for his arrest. An ID parade was not needed as the complainant identified the accused in a public place. The report was lodged the week before. In cross-examination he informed the Court that no photos, fingerprints or forensic tests were carried out. The complainant had repaired the door. Neighbours were questioned but no one heard anything.

The accused denied the offence and stated that he was at the playhouse at the time of the alleged offence. He had grown up around the place of the alleged offence.

The accused when he was interviewed by the police informed the police of his whereabouts on the eve of the alleged incident. He also told the police he slept at the Playhouse. The police did not investigate these matters or even follow up with the people whose names were given by the accused. The inconsistent evidence by the prosecution witness also does not assist the prosecution case. The complainant told the Court that the neighbor heard her shout. The investigating officer told the Court the neighbours heard nothing.

The evidence of visual identification is notoriously unreliable, yet essential evidence. When identification is in issue, this Court will warn itself of the "Turnbull guidelines" (from R v Turnbull [1977] QBD), a warning about relying on identification and the reasons for the warning. Firstly, the warning will refer to the possibility that even a convincing witness(es) may be mistaken. Secondly the Court should test the evidence by examining such things as the circumstances in which the identification came to be made and the following questions:

- 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 ever 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 identification 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? (Material discrepancies should be supplied to the defendant.)

Finally, recognition may be more reliable than identification of a stranger but the Court will warn itself and be reminded that mistakes can occur.

The evidence of the identification of the accused is deficient and unreliable in this case and not led to cover the Turnbull guidelines. The Prosecution needed to get answers to the questioned stated above to deal with the identification of the accused. This was not done and is fatal to the prosecution case.

For the forgoing reasons this Court finds that the case against the accused is not proven beyond reasonable doubt. The accused is acquitted. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate

28th November 2013