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Taufa v State [2002] FJCA 88; AAU0031U.2001S (16 August 2002)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT, FIJI ISLANDS

CRIMINAL APPEAL NO.AAU0031 OF 2001S
(High Court Appeal No. 005 of 2001)

BETWEEN:

VILIAME TAUFA
Appellant

AND:

THE STATE
Respondent

Coram: Hon Jai Ram Reddy, President
Hon Sir Mari Kapi, Justice of Appeal
Hon Robert Smellie, Justice of Appeal

Hearing: Wednesday, 14th August, 2002, Suva

Counsel: Appellant in Person
Mr G. Allan for the Respondent

Date of Judgment: Friday, 16th August, 2002

JUDGMENT OF THE COURT

On the 19th of September 1999, the Appellant was convicted by the Magistrates’ Court, Suva on four counts of Robbery with Violence, Contrary to Section 293(1)(b) of the Penal Code. He was sentenced to 3½ years imprisonment on each count to be served concurrently. The Appellant appealed to the High Court. On the 10th of April 2001 his appeal was dismissed by Surman J. The Appellant has now appealed to this Court.

The facts of this case can be briefly stated. There is no dispute that all the four robberies particularized in the four counts took place at about 12.40 pm on 28 May 1999, at the premises of Hamid’s Construction, in Spring Street, Suva.

The victims named in the four counts were robbed of the items, enumerated in the particulars of the charge. The sole issue was whether the Appellant was one of the two robbers.

The critical evidence, identifying the Appellant as one of the two involved in carrying out the robberies came from the witness Emosi Seduadua. Emosi Seduadua was sitting inside the office of Hamid’s Construction when two men entered the office. He said that one of the two produced a pen knife and held it on his neck. The Appellant took $70 out of his pocket. He said that he saw the Appellant’s face and had no difficulty in recognizing him. The Appellant then threatened the two girls who were seated only two or three metres from him. Seduadua was punched and taken into the Manager’s office. In the Manager’s office the two took watches from the girls, and the Appellant was blocking the doorway, while the other searched for money.

On the 3rd of June 1999, about a week after the robbery Emosi Seduadua saw both the persons involved in the robbery at Hamid’s Construction near the Suva Market, and immediately reported the sighting to the Police Post there. He pointed out the Appellant to the Police, as one of the two persons involved in the robberies. The other person had disappeared. According to Emosi Seduadua he saw the Appellant at close quarters for some 5 minutes while inside Hamid’s office, and had no doubt that the Appellant was one of the two who carried out the robberies.

The learned Magistrate gave himself the following warning:-

“As identification of accused is in issue, the court has to be extremely cautious before it can convict. The possibility of a witness making a mistake as to identification has to be borne in mind. Sometimes even honest witnesses can be mistaken as to identity of accused.”

Earlier in his judgment the learned Magistrate made the following findings:-

“The accused therefore was throughout seen from a short distance within the space of a room.

Hence to sum up the accused was seen by the witness during day time, from a short distance and for a fairly long time so the possibility of error was minimal.”

The learned Magistrate rejected the Appellant’s alibi, and found that the Appellant was not at his sister’s house or at Raiwai as he stated to the Police during his interview.

The learned Magistrate found that it was the accused who entered Hamid’s Construction office with one other person, and robbed the persons specified in the particulars of offence of the items mentioned therein. He found him guilty on all four counts.

THE APPEAL

The sole ground of appeal is that the identification evidence was unsatisfactory, and that the learned Magistrate erred in convicting the Appellant on the evidence of Emosi Seduadua. This is a second appeal. It is restricted to questions of law alone (Section 22(1) of the Court of Appeal Act). We do not see that the sole ground of appeal directed to the issue of identification raises any points of law. The learned Magistrate undertook all the enquiries which are recommended in identification cases, pursuant to the decision in R v Turnbull [1976] 3 ALL E.R. 549. Having directed himself on the need for caution in this case, he nonetheless came to the conclusion that the Appellant was correctly identified as one of the two persons involved in the robberies. The identification issue was canvassed on appeal to the High Court, and the learned Judge, found that the learned Magistrate had dealt with the issue correctly; and his finding could not be interfered with. We agree.

We do not see any merit in this appeal and it is dismissed.

Hon Jai Ram Reddy
President

Hon Sir Mari Kapi
Justice of Appeal

Hon Robert Smellie
Justice of Appeal

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