Lase v Reginam [1977] FJSC 99; Criminal Appeal 145 of 1977 (16 December 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. 145 of 1977

Between:

ALIPATE LASE

and

REGINAM

JUDGMENT

This is an appeal against conviction, the appellant on the 11th Catcher 1977 having been convicted after trial by Navua Magistrates Court of criminal trespass contrary to section 218(2) of the Penal Code.

The facts of the case are simple. Shortly before 10 p.m. on the 7th January 1977 the first prosecution witness, who was in an upstairs room of a house, put on the light and saw somebody jump from the verandah to the ground. The second prosecution witness was lying on his bed in the house (apparently in the dark) when "a person came and sat on the window facing inside - legs outside. My wife yelled out. We switched on the lights and I saw a Fijian man going away". Later the same night a police officer saw the appellant outside a cinema and took him into custody. The first and second prosecution witnesses were called to the police station and shown the appellant, whom they purported to identify as the trespasser. No identification parade was held.

The appellant testified that he had been in the cinema since 8 p.m. and had not committed this offence.

The case against the appellant rested entirely on eye-witness identification which was, in my view, manifestly unreliable; and I regret that it should be necessary to have to reiterate how essential it is, in cases of this nature, to subject the evidence to a searching examination. I can do no better than to cite the following passage from the judgment of this Court in R. v. Kalivati Dravikula (Crim.App.No. 13/76):

"Turning to identification, one must look at the evidence to ascertain whether it was sufficient to enable the trial magistrate to come to a finding that the complainant's identification of the appellant was positive and correct. Identity is a vital issue, the importance of which cannot be over-emphasised, and where the person charged is not known to the victim the circumstances of the offence must be scrutinized rigorously in order to ascertain whether they were such as to permit of accurate and reliable visual identification. As this Court stated in Kaminieli Tuirabe v. Reginam (Crim. App. No. 15 of 1975):-

'In every case where identification is in issue the evidence relating thereto must be scrutinised with the greatest care so as to admit of no error. The Court must direct its mind to all the circumstances in which visual identification was made including such important matters as the length of time the witness had for seeing who was doing what is alleged, the position he was in, his distance from the accused and the quality of the light; and after testing all the evidence the Court, before convicting, must be left in no doubt that the visual identification is correct (vide R. v. Long (1973) 57 Cr.App.R. 871 at 377 and 878).'

Applying that approach to the facts of this case, no attempt was made to ascertain whether the circumstances of the offence were such as to permit of reliable visual identification. No questions were asked of the complainant by the prosecuting officer as to the lighting, as to the distinguishing features of the assailant, or as to what it was about the assailant which so impressed itself upon the mind and memory of the complainant as to enable him to identify the appellant fourteen days after the event. As the prosecuting officer did not see fit to enquire into this fundamental aspect of the matter, which was the only one at issue in this case as no other evidence was adduced by the prosecution to support the charge against the appellant, one would have expected the trial magistrate to have questioned the complainant in detail, particularly as the appellant was unrepresented. This was not done, and its omission rendered the evidence inadequate on which to base a finding that the identification of the appellant was proved to be correct beyond reasonable doubt."

Those comments apply, mutatis mutandis, to the instant case, and the Crown concedes that it would not be safe to allow this conviction to stand. It is quashed and the sentence set aside.

Grant, C.J.
Chief Justice

Suva,
16th December 1977