Bereki v Reginam [1977] FJSC 41; Criminal Appeal 067 of 1977 (15 July 1977)

Fiji Islands - Bereki v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL No. 67 of 1977

1. IOROSIO BEREKI
2. MATEO DAULAKO
3. MOAPE MANAKIWAI
Appellants

v

REGINAM
Respondent

Th

The three appellants were jointly charged with robbery with violence contrary to section 326(1)(b) of the Penal Code. They were convicted by the Magistrate's Court Suva and each sentenced to 4 years' imprisonment.

They all appeal against their convictions and sentences. The three appeals were heard together.

Taken together, the grounds put forward by each appellant allege that the learned Magistrate erred in accepting the prosecution evidence as to identification as reliable. They also allege that the conduct of the Court interpreter prevented them from effectively putting forward their defence.

Dealing with the second allegation first, the record clearly shows not only that each appellant was made aware of his rights but also that each of them fully exercised these rights. They cross-examined every prosecution witness. When it came to putting forward their defence, one of them elected to give evidence on oath, the other two to make unsworn statements. Each appellant addressed the Court at length in mitigation before sentences were imposed. I see no substance at all in the allegation that the proceedings wore in any way irregular.

On the issue of identification the prosecution relied mainly on the evidence of two Tongan seamen Kupu and Siliva, and of Insp. Lelea. On the evening in question the two seamen had gone to a dance held at the Trio night club. At 1 a.m. when the dance ended they decided to stay a little longer and finish some drinks which they had already purchased.

While they were drinking with two girls, they were attacked. Kupu was assaulted near the table where he was drinking. According to his evidence, the appellant Lorosio was the first person to punch him. The place was well lit and he recognised him. Kupu then tried to run away. Others then joined Lorosio in assaulting him. He could only recognise Mateo and Moape the other two appellants. He had not known them before. They caught him as he ran down the stairs. He fell and became unconscious. When he came to, he was lying on the footpath outside and his money, $24, his shoes and his socks were gone . He was taken to the hospital.

Siliva was attacked outside the men's toilet. His assailant, according to his evidence, was Moape the third appellant. lie ran towards the stairs and, as he did so, he saw Lorosio strike Kupu who fell down. Siliva. ran down the stairs and escaped into what he described "verandas next door" from where he could see the stairs down which Kupu tried to ran. He saw the three appellants catching him on the stairs.

Insp. Lelea was on observation duty on the fourth floor of the building which houses the club. A large area of Central Suva can be seen from there. In his evidence he said -

"Whilst there saw incident on ground near entrance to Trio Nightclub. I saw a person lying on the ground with some people - the people in the dock definitely fiddling around with man's pocket. I know Accused 1 well and knew Accused 2 and 3 work at Nightclub.

Accused 1 pulled coins from pocket of man lying on the ground. I saw him from straight above and saw him put coins in pocket.

Accused 2 took off man's shoes and socks.

Accused 3 was fiddling around with man's pockets but didn't see him take anything."

As he went down the stairs, he saw the appellant Mateo (the second accused) running upstairs with a pair of shoes and socks, when questioned he said he had "just found them and was taking them up to keep it." The shoes and socks were produced in Court as exhibits and properly identified as the ones Kupu had been wearing.

The trial of the three appellant took place on the same day, a few hours after the alleged offences.

The learned Magistrate had no hesitation in accepting these witnesses as witnesses of truth and found the identities of the three appellants established beyond doubt. I can see no reason for disturbing that finding. The appeal against conviction is dismissed.

As for sentence, there is nothing to suggest that this was a common night club brawl with blame attaching to both sides. The evidence indicates a bad case of premeditated gang assault with robbery as aim.

The appeal against sentence is also dismissed.

G. Mishra
ACTING CHIEF JUSTICE

Suva,
15th July 1977