Wainiqolo v State [2008] FJSC 45; CAV0007.2007S (27 February 2008)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0007 OF 2007S
(Fiji Court of Appeal No.AAU00 27 of 2006S)

BETWEEN:

SEMISI WAINIQOLO
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Robert French, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Thursday, 21st February 2008, Suva

Counsel: Petitioner in Person
A Driu for the Respondent

Date of Judgment: Wednesday, 27th February 2008, Suva

JUDGMENT OF THE COURT

[1] The petitioner was convicted on one count of armed robbery and one of unlawful use of a motor vehicle following trial in the High Court. He was sentenced to a total term of ten years imprisonment which was ordered to run consecutively to a sentence of seven years he was already serving for another robbery.

[2] The victim of the robbery was the wife of the owner of a nightclub in Suva. On 4 January 2005, sometime before 9:15 am, she was driving out of their home on her way to bank the takings from the New Year period, amounting to $13,000.00. The money was under the seat in the car and she had her nine month old son in the seat alongside her. As she left the compound and was waiting for her teenage cousin to close the gate, a vehicle was driven up close to her car to prevent it being driven further. Four masked men ran out and up to the car. They were armed with an axe and cane knives. The windscreen of the car was smashed with the axe and one of the men tried to reach for the keys. As he did so, he removed his balaclava and the woman was able to see his face. She recognized him as the petitioner.

[3] The getaway car used by the robbers had been taken on the day of the robbery without the owner’s consent.

[4] The essential issue at trial was that of identification and it depended upon the assessors accepting the evidence of the victim that the man she saw was the petitioner. The petitioner gave evidence of alibi and called two supporting witnesses who were workmates with him at the Suva dockyard.

[5] The Court of Appeal dismissed appeals against conviction and sentence (see Semisi Wainiqolo v. The State, Criminal Appeal AAU0027 of 2006, 24 November 2006). In doing so, it rejected grounds of appeal against conviction related to identification; the use of handcuffs in the sight of the assessors; the directions on alibi; failure to sum up fairly; and prejudice stemming from the petitioner being unrepresented at trial. The sentence appeal had contended that the Judge took into account previous convictions that had been quashed on appeal and that the sentence was harsh and excessive.

[6] The grounds of appeal touching conviction that were raised in this Court in the petitioner’s written and oral submissions ranged over a broader area. And, in apparent contrast to the way the case was presented in the Court of Appeal, they focused upon the weight of the evidence rather than the directions given to the assessors. Putting to one side the submission of miscarriage stemming from want of representation at trial, the main thrust of the attack on conviction was that the verdict is unreasonable and cannot be supported having regard to the evidence.

Identification Issues

[7] The trial Judge warned the assessors of the special need for care before relying upon the identification evidence of the single prosecution witness who identified the accused. The warning was accompanied by the usual checklist of matters touching upon the reliability of identification testimony. This warning was reinforced by the way the judge summed up the facts. The Court of Appeal held that there this was a very fair and proper application of the guidelines in R v Turnbull (1977) 63 Cr App R 132.

[8] We agree.

[9] In the Court of Appeal, and to a degree in this Court, the petitioner asserted prejudice stemming from his dock identification by the victim. The Court of Appeal has correctly explained why this submission must be rejected. The assessors were warned about the general problem with an in-court identification; and this was really a case of recognition rather than identification of a stranger. It was plain to all that the real issue was whether the victim had recognized the petitioner at the time of the robbery. Since she claimed to know him already, the formal identification in Court added nothing of any materiality and caused no prejudice.

[10] This brings us to the weight of the evidence itself which, as indicated, was the thrust of the case urged by the petitioner in this Court.

[11] What follows is taken from the record of trial which consists of Winter J’s notes. Page references are to the Record of the Supreme Court.

[12] The victim and the petitioner were cousins in that their respective grandmothers were sisters. The petitioner was born in 1968.

[13] The robbers wore green balaclavas. One of them reached inside the car to trigger the boot latch but he hit the fuel cap button instead. After this he reached in for the key. He took off his balaclava. The petitioner said she knew it was Semisi Wainiqolo because she had already seen his face before (p45). When she recognized him she said "Semisi, you can’t do this to me, I know you." He said "I don’t know you." He threw the key at her and went to rejoin his mates saying "someone has recognized me."(p 45).

[14] Subsequently, the robber standing on the passenger side of the car saw the money bag under the seat, took it, and called out to the others.

[15] The victim said that she knew the petitioner for three years spanning the time when he was aged five. She didn’t next see him "until Suva when I saw him around" (p 46).

[16] The victim said that she "recognized Semisi" (the petitioner) and that she felt frightened and weak because she could not believe he would do this. She "could clearly see his face" (p 46). He was not wearing a beard.

[17] She said that she had seen Semisi last around the nightclub "sometimes in 2005. He was standing in the nightclub" (p 46).

[18] The witness was shown a green balaclava (later proved to have been found in the petitioner’s possession) and she said it was the same colour and type as that worn by the accused during the robbery.

[19] Under cross-examination by the petitioner the victim adhered to her evidence that she recognized him during the robbery. He had removed the balaclava from his head by the time he reached in for the key. The victim said that she had last seen the petitioner in his village in the 1990’s but she clarified any ambiguity by adding that she had seen him in Suva shortly before the robbery. She said (p 47):

"I saw him in the Melrose nightclub. Can’t recall exact date. It was in December 2004 and January 2005 before 4th January. Can’t remember date."

[20] No other witness gave evidence of recognizing or identifying the petitioner. However, the second witness for the prosecution generally supported the victim’s evidence. He saw one of the robbers take off his balaclava. The car keys were taken and thrown on the road (p 48). It was the man on the driver’s side who removed his balaclava and he was one metre away from the driver (pp 49-50). He was unshaven (P 49).

[21] The police explained the absence of an identification parade on the basis of the victim’s statement (pp 50, 52).

[22] A "green pompom" was found at the motel where the petitioner was arrested. This is referred to in the record as MFI No 1 and it became Ex 1 (p 51). We infer that it was the "balaclava" shown to the victim during her evidence.

[23] The petitioner had made no admissions to the police. He gave evidence that he was at King’s Wharf from about 7am to 10am on the day of the robbery. There were no short call jobs so he went home.

[24] He met some casual labour mates also wanting to work, naming two of them.

[25] Under cross-examination he said that he kept both his black and green balaclava in a bag, but that he did not have it with him that day because it was bright. He denied that the balaclava in evidence was his or that it was the one inside his bag at the time of his arrest (8 days after the robbery). He said that his balaclava had one hole at the front, not three (p 54).

[26] The petitioner said that he could not recall ever meeting the victim or speaking to her. He first learnt that her husband owned the Melrose nightclub when he was arrested. He was not in the nightclub in December 2005. He first went there when released on bail in April 2005.

[27] The two alibi witnesses were then called. Each of them said he was waiting for casual work at Kings Wharf on the day in question and that the petitioner was also there between 7am and 10 am. One of the witnesses, Mr Vuadreu, said that he, the petitioner and Leone Marawa were playing cards after 7.45 am and that he (Vuadreu) was winning the most.

[28] The second witness, Leone Marawa, said he thought that he was at the wharf on the day in question (p 59). He remembered seeing the petitioner and Mr Vuadreu and said that the petitioner waited for short calls from before 8 am to 10.30 am (p 59). Later he said that the petitioner may have left before or after 9 am (p 61).

[29] Each alibi witness was challenged as to his recall of detail and generally as to his evidence. The possibility of confusion about the date in question was raised. It also emerged that Mr Marawa had been in court when the petitioner gave his evidence.

[30] The grounds of appeal in support of the petition in regard to identification argued that the prosecution case was not proved beyond reasonable doubt. The alibi evidence ought to have raised a reasonable doubt.

[31] The evidence of the victim was said to be unreliable because

(a) it was uncorroborated;

(b) (b) it was the fleeting observation of a person in shock and there were differences in the details as to timing;

(c) there were inconsistencies between the victim and the other eye witness (as to matters of detail);

(d) the victim was lying in her evidence about seeing the petitioner in the club before the crime;

(e) the sighting in the nightclub in the days before the robbery was not mentioned in the victim’s caution statement;

(f) the evidence of Ex 1 (the balaclava) was "prejudicial and unreliable because it was unfairly taken."

(g) there should have been an identification parade;

(h) there should not have been a dock identification;

(i) the directions on identification were inadequate;

(j) (unidentified aspects of) the Police and Criminal Evidence Act (UK) should have been applied.

[32] In our opinion, none of these matters established a case for the grant of special leave.

Proposition (a) does not represent the law if it is intended to suggest a mandatory requirement.

Propositions (b), (c), (d) and (e) raise questions of fact upon which the assessors were properly directed. The victim’s evidence was cogent and, if accepted, established identification by recognition. The requirements of s.7(2) of the Supreme Court Act 1998 are not satisfied.

There was no notification that the balaclava had been seized by the police, and that the one put into evidence was planted by the police. The first matter strikes us as immaterial and the second does not appear to have been raised at trial, by way of confronting the police witness (see p 51).

Propositions (g),(h) and (i) were addressed by the Court of Appeal in terms with which we fully agree.

Proposition (i) is untenable. The petitioner has misunderstood paras 11 and 20 of Rokonabete v The State [2006] FJCA 40.

Lack of fair trial because of want of representation

[33] The petitioner submits that the trial was unfair because of lack of representation. He did not have "equality of arms" to present his case effectively given its complexity and the severity of the sentence.

[34] This Court has recently granted special leave in a matter that will explore the scope of ss.28 (1) (d) and 29(1) of the Constitution (see Ledua v The State CAV 0004 of 2007).

[35] As regards the present matter, we content ourselves in observing that "equality of arms" is not the language used in Chapter 4 - Bill of Rights.

[36] The present case is not a suitable vehicle for exploring the important issue of unrepresented accused facing serious charges. The petitioner was repeatedly informed as to his rights. When legal aid was refused he represented himself at a trial that was not complex either as to issues or facts.

[37] Winter J’s records of the pre-trial hearing states that the petitioner "elects to appear on his own at trial" (p 42 see also p 43). Nothing in the record shows that the petitioner sought a stay pending the provision of legal assistance. Nor was there any explanation of the petitioner’s means or his reasons for being unrepresented after legal aid was refused. There is no judgment of the trial Judge or the Court of Appeal addressing the factual issues relevant to the claim of prejudice now raised.

Other Issues

[38] The submission that the assessors were "biased" because they saw the petitioner in handcuffs was addressed in the Court of Appeal in terms with which we agree. No special leave ground is established.

[39] Likewise for the complaints about specific aspects of the directions touching the alibi witnesses.

[40] The remarks on sentence do not betray a failure to address the totality principle, which is the main point raised in the sentencing grounds of appeal in this Court. In fact the sentence was reduced on that very basis by the primary Judge.

[41] We would endorse the remarks of the Court of Appeal about the confusion unfortunately generated by the serious failure of the police to present an accurate record of prior convictions to the sentencing Judge. But we agree with the Court of Appeal’s conclusion that no miscarriage eventuated in light of the manner in which the totality issue was addressed by the sentencing Judge.

Order

[42] We refuse special leave and dismiss the petition.

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Robert French
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:
Petitioner in Person
Office of the Director of Public Prosecutions, Suva for the Respondent