Sovatabua v Reginam [1977] FJSC 110; Criminal Appeal 73 of 1977 (9 September 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. 73 of 1977

MANOA SOVATABUA
Appellant

v

REGINAM
Respondent

JUDGMENT

The appellant was convicted by the Magistrate's Court Suva of the following offences:

First Count - Robbery with violence contrary to section 326(1)(b) of the Penal Code.

Second Count - Escaping from lawful custody contrary to section 130 of the Penal Code.

Third Count - Assaulting a police officer in due execution of his duty contrary to section 279(b) of the Penal Code.

He was sentenced to 2 years' imprisonment on the first count and six months' imprisonment on the second and third counts the last two sentences to be served concurrently.

He appeals against his conviction on each count.

According to the prosecution evidence one Arjun, a taxi driver, had picked up three passengers in town after 9 p.m. and driven them to Laucala Beach Estate. There he was asked to stop the car and to open the boot for them to load something. As he was doing this, one of them struck him on the face knocking him to the ground. The three of them then drove away in the car.

Arjun saw a police patrol car and reported the matter. Insp. Sharma, Const. Tevita and Arjun drove in the direction in which the taxi had gone. Near the Kinoya Power House, they saw the taxi parked, its interior and head lights on, its wipers working. Three men were seen running away from it towards the power house. Insp. Sharma caught hold of one and Tevita chased and caught another. Tevita got this man to get into the parked taxi. As he was about to close the door the man punched him on the face and ran away. Tevita, however, had known the man before and recognised him as Manoa Sovatabua, the appellant. They could not catch him again that night but Tevita informed Insp. Sharma of the identity of the appellant.

The man Insp. Sharma had arrested was charged and dealt with. Some days later Const. Tevita, who was under the impression that the appellant must also have been arrested and dealt with saw him at large outside the Court House at Suva and made enquiries. He was then arrested for these offences.

The appellant, at the trial denied that he was among the persons who had hired Arjun's taxi or that he was the person Tevita had arrested that night. According to him he had been in Ra all that week planting cane on his family farm. He called his brother to give evidence to the same effect. He also called, Isireli Cama, the man Insp. Sharma had arrested near Arjun's taxi that night. He told the Court that the appellant was "not the Manoa who was with me. It was a different person who was with me". To Court, he said he had been too drunk that night.

The learned Magistrate rejected this evidence and the evidence of the appellant's alibi. He accepted Tevita's evidence and that of Arjun, the taxi driver, who positively identified the appellant and said that it was he who had punched him in the face and had later got behind the driving wheel.

The appellant's main ground of appeal is that the learned Magistrate erred in rejecting the defence evidence of his alibi.

This, however, was an issue of credibility and there was considerable positive evidence of identification before the learned Magistrate which he had no hesitation in accepting. On an issue, such as this, it would be improper for an appellate court to upset the trial Magistrate's finding unless there were some compelling reason for doing so. I can find no such reason.

The appeal is dismissed.

(Sgd.) (G. Mishra)
Acting Chief Justice

Suva,
9th September 1977