Qoroniasi v Reginam [1977] FJSC 19; Criminal Appeal 008 of 1977 (1 April 1977)

Fiji Islands - Qoroniasi v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 8 OF 1977

:

TOMASI CORONIASI

AND:

REGINAM

On the 4th October 1976 the appellant was coas convicted by Suva Magistrates Court of having participated in an offencoffice breaking, entering and larceny during the early hours of the 13th September 1975, co5, contrary to section 323(a) of the Penal Code.

In January 1977 the appellant applied to Suva Magistrates Court for leave to appeal out of time and, his application having been granted, the appellant has appealed against conviction.

As the Crown concedes that the conviction should not be upheld I do not consider it necessary to set out all the details of the case, but shall confine myself to the material defect.

The only evidence implicating the appellant was a confession which he retracted. When putting on his defence the appellant made an unsworn statement denying any knowledge of the offence and added that he had not been picked out at an identification parade. In his judgment it is quite clear that the trial Magistrate considered that he was faced on the one hand with the confession of the appellant and on the other hand with his unsworn statement, and on that basis he proceeded to convict the appellant.

However the appellant's reference to not having been picked out at an identification parade, which was not considered by the trial Magistrate, is of significance as it refers back to his sworn testimony during a trial within a trial, held to determine the admissibility of the retracted confession, in the course of which the appellant testified that he had taken part in an identification parade at which two identifying witnesses were called who failed to point him out; and which was not challenged by the prosecution.

In the trial proper, although a police officer was called by the prosecution to give evidence of an identification parade at which a co-accused was picked out, no evidence was led of the appellant having taken part in any identification parade. The learned Director of Public Prosecutions has very properly informed this Court that the evidence of the appellant on this point is correct and that on the 14th September 1975 the appellant did take part in an identification parade and that two witnesses who had seen the perpetrators of the offence in incriminating circumstances failed to identify the appellant. It was incumbent upon the prosecution to lead this evidence during the trial, and their failure to do so resulted in relevant evidence in favour of the appellant being withheld. Had the trial Magistrate not overlooked the appellant's references to an identification parade, and had evidence of the identification parade in question been properly put before the trial court, it may very well have tipped the scales in the appellant's favour.

In these circumstances it would not be safe to allow the conviction to stand. It is accordingly quashed and the sentence set aside.

Clifford H. Grant
Chief Justice

Suva,
1st April, 1977.