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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 174 of 2019
[In the High Court at Suva Case No. HAC 299 of 2017S]
BETWEEN:
LORIMA KOROITAMANA
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, JA
Counsel: Appellant in person
Ms. E. Rice for the Respondent
Date of Hearing: 16 February 2021
Date of Ruling : 17 February 2021
RULING
[1] The appellant with two others had been indicted in the High Court of Suva on two counts of aggravated robbery contrary to section 311(1) (a) of the Crimes Act, 2009 committed on 25 September 2017 at Spoity, Sty, Suva in the Central Division.
[2] The information read as follows.
“Count 1
Statement of Offence
AGGRAVATED ROBBu>: Contrary to section 311n 311 (1) (a) of the Crimes Act 2009.
Particulars of Offence
ILAITIA SARAI, LORIMA KOROITAMANA with others on the 25th September, 2017 at Sporty, ity, Suva in the Central Division, in the company of each other, robbed ROSELINE MUDALIAR of USD$50.00, GBP$600.00, AUD$195.00, NZ$455.00, FJD$2,921.50 and 3nk cheques valued at FJD$4,221.50, the property of REAL FORL FOREX EXCHANGE OFFICE.
Count 2
Statement of Offence
AGGRAVATED ROBBERY: Contrary to section 311 (1) (a) of the Crimes Act 2009.
Particulars of Offence
ILAITIA SARAI, LORIMA KOROITAMANA with others on the 25th September, 2017 at Sports City, Suva in the Central Division, in the company of each other, robbed ROSELINE MUDALIAR of a handbag and FJD$500.00 cash, the property of ROSELINE MUDALIAR.
[3] After the summing-up, the assessors had expressed a unanimous guilty opinion against the appellant on both charges on 13 May 2019. The learned High Court judge in his judgment on 13 May 2019 had agreed with the assessors and convicted the appellant as charged. He had been sentenced on 14 May 2019 to 12 years of imprisonment each (to run concurrently) for the two offences with a non-parole period of 11 years.
[4] The appellant being dissatisfied with the conviction and sentence had purportedly submitted an appeal in person to the Court of Appeal registry through Suva Correction Centre on 21 May 2019. However, a copy of the original appeal is not available in the record. The appellant had affirmed to filing the timely appeal in his affidavit dated 20 August 2020 and mentioned this fact in his letter to the CA registry on 28 April 2020. Considering the matters mentioned in his affidavit which I tend to believe, I am inclined to treat his appeal as timely. His amended grounds of appeal and additional grounds of appeal against conviction and sentence had been received on 09 December 2019 and 29 June 2020 respectively. He had preferred written submission on 14 September 2020 but not made any submissions on the sentence. The state had filed its submissions on 12 October 2020 on the conviction appeal.
[5] In terms of section 21(1)(b) and (c) of the Court of Appeal Act, the appellant could appeal against conviction and sentence only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.
[6] Grounds of appeal against conviction
‘Ground 1- Defective particulars of the offence.
Ground 2, 3, 4, 6, 7 and 8 - Dock Identification
Ground 5- Paragraph 17 of the summing-up
[7] The prosecution evidence of the case as summarised by the learned High Court judge in the sentencing order is as follows. The appellant was accused No.3 at the trial and he remained silent.
01st ground of appeal
[8] The appellant’s complaint is that the charges preferred against him were not in conformity with Form 8 in the Criminal Procedure Act, 2009 (Forms) Rules in that they had not mentioned the words ‘use of force’ in the charges. However, he had not averred that he was misled in his defense or was prejudiced as a result of the omission of those words in the charges. The appellant had been defended by counsel at the trial but they had not complained against any deficiency in the charges.
[9] I addressed exactly a similar ground of appeal in Niubasaga v State [2021] FJCA 3; AAU111.2018 (6 January 2021) where I inter alia examined Kirikiti v State [2015] FJSC 13; CAV17.2014 (20 August 2015) relied on by the aant. In
[10] Vakatalai v State [2017] FJHC 228; HAA035.2016 (17 March 2017) held as follows
<216;[7]............ Although the particulars did not not expressly state that the appellant used force, the element of force was subsumed in the definition of robbery, thus, making the charge reasonably informative for the appellant to know what was being alleged by the prosecution. In my judgment, the charge was not defective.[8] But if I am wrong in mclconclusion that the charge was not defective, I am not convinced that the appellant was prejudiced by the charge not stating the appellant used force to steal the complainant’s mobile (see, Kiri>Kirikiti v Sta>> [2015] FJCA a>005.23 December 2015).The appellant’s 17;s case case was that he was mistakenly identifiedified by the complainant as the person who had robbed him. The issue was whether the appellant was the robber. That is how the appellant presented his case at the trial. Whether force was used or not to steal the complainant’s mobile phone was not an issue at the trial.’
[11] His Lordship Justice Keith’s remarks in Koroivuki v State#160; [2017] FJSC 28; CAV7.2017 (017 (26 October 2017) regarding how a proper charge under section 311(1)(a) of the Crimes Act, 2009 should read is exactlyvant e apptRcomplaint.
R>‘Th16;The Pare Particulars of Offence should have read
Isoa  ivuki b> and&<160;la Williamsb> on the 7th f August, 2011, 011, in Suva in the Central Divisin the company of each other, robbed Yuan Hua Ye of [the items stolen], the propertyperty of Yuan Hua Ye.’
[12] Thrt of Appeal followed 02nd, 03rd, 04th, 06th, 07th and 08th grounds of appeal [14] The appellant challenges the first time dock identification and argues that the trial judge should not have allowed the same
at the trial and also that the trial judge had failed to give any directions to the assessors as to the danger and unreliability
of the first time dock identification. He further complains that the police had shown his photograph to the complainant based on
the confession of the co-accused within hours of the incident. [15] The trial judge had stated at paragraph 31 of the summing-up that the case against the appellant stood or fell on whether or
not the assessors accepted the complainant’s identification of him at the crime scene at the material time. Having described
the incident the complainant had said that the i-taukei man whom she had described as a person wearing a hoodie covering his face,
was in the courtroom and pointed out the appellant in the dock as the person she saw on the day of the incident. According to her,
she had observed his face for 1 ½ minutes at a distance of just 02 feet away from where she was. [16] It appears from the summing-up that there had not been a police identification parade to identify the appellant and the complainant
had specifically said that she had not attended such a parade. Though, the appellant had made submissions regarding photo identification,
it does not appear from the summing-up that there had been a photographic identification either. Therefore, the identification of
the appellant by the complainant at the trial has to be regarded as a first time dock identification. [17] In Edwv. Queen&#/b> [ FJCA 39, the Court of Appeal did not disapprsapprove of dock identification because (ise (i) the witness had seen the suspect twice before,
on both occasions under good lighting, and (ii) there had been 8 defendants in the dock and though there had been a failure on the
part of the judge in respect of the dock idecation, neverthelesheless had gone on to hold that no prejudice had been caused despite
lack of Turnbull direction. [19] The Privy Council in &#/b> (2010). App. App. R23, PC,& PC, [2011] UKPC 16 stated: “17. Dock identifications are not, of themselves and automatically, inadmissible. In Aurelio Pop v The Queen ef="http://www.paclii.olii.org/cgi-bin/LawCite?cit=%5b2003%5d%20UKPC%2040?stem=&synonyms=&query=title(Saukelea%20and%20State%20)"
title="View LawCite Re>[2003] UKPC 40 the Board that, even inen inen in the absence of a prior identification parade, a dock identification was admissible evidence, although, when admitted, it gave rise to significant requirements as to the directions
that should be given to the jury to deal with the possible frailties of such evidence – ‘that it is important to make clear that a dock identification is not inadmissible evidence per se and that the admission of
such evidence is not to be regarded as permissible in only the most exceptional circumstances. A trial judge will always need to
consider, however, whether the admission of such testimony, particularly where it is the first occasion on which the accused is purportedly
identified, should be permitted on the basis that its admission might imperil the fair trial of the accused.” [20] In Lawrence v The Queen ‘In several cases this Board has held that s should warn the jthe jury of the undesirability in principle and dangers of a dock identification: Aurelio Pop v The  [2008] UKPC 11; Tido v The Queen [21] Having allowed the first time dock identification after about 01 year and 07 months of the incident, the trial judge had substantially
directed the assessors on Turnbull guidelines at paragraph 33 of the summing-up regarding the identification of the appellant by the complainant at the crime scene.
The issue then is whetherjudge had given appropriate directions on how the assessors should approach the first time time dock identification.
It appears that the learned trial Judge had not warned the assessors of the dock identification. In other words he had not told them
about the undesirability and dangers of dock identification or to give it little or no weight or that they should not take that into
account. Therefore, the next question is how the appellate should look at it in appeal. [22] The tests for the appellate court to apply in a situation like this were formulated in Naicker v State CAV0019 of 2018: 1 November 2018 [23] In Korodrau it was held as follows. ‘[35] However, the Supreme Court in Naicker<160;went went on to state in paragraph 38 that the critical question is whether ignoring the dock identifications of ppellant, there was was sufficient evidence, though oircumstantial nature, on whon which the assessors could expres opheion that he was was guilty, and on which the jud60; ‘45. I return to the irregularities in the trial as a result of the docntifications and the ab of a a Turnbull tion. To use the language oage of the proviso to secti(1) of the Court of Appeal Act 1949, has a “substantial miscarriage of
justice”8221; occurred?.........The question, in my on, ither the judgege [36] Thus, the Supreme Court appears to formulate a two tier test. Firstly, ignoring the docntification of the appelappellant whether
there was sufficient evidence on which the assessors c#160;express the opinion tion that he was guilty, and on which the judge could
find him guiSeco dly, whethwhether the woulde convicted the aphe appellant, had there been no dock identific [24] Therefore, applying those tests to the appellant’s complaint on the first time dock identification, it looks as if that
without the dock identification there was no or insufficient evidence of identification of the appellant at the crime scene. Therefore,
unlike in Naicker and Korodrau, there being no other or insufficient evidence to establish the appellant’s identity vis-à-vis the crime and no warning on the first time dock identification by the complainant, the Court of Appeal has to decide whether in this
case there is a basis to apply the proviso to section 23(1) of the Court of Appeal Act. [25] Therefore, at this stage (without the trial proceedings) there appears to be a reasonable prospect of success in appeal on these
grounds of appeal. 05th ground of appeal [26] The appellant complains against the trial judge having stated at paragraph 17 of the summing-up that ‘Most evidence in this case are admissible against all accused.’ [27] Not only the impugned statement but considering the entire paragraph 17 in general I do not see any merits in this ground of
appeal. [27] Although, the appellant had included some grounds of appeal against sentence in his amended grounds of appeal and additional
grounds of appeal, he had not even mentioned those grounds of appeal in his written submissions which he relied on at the hearing
or made any submissions on the sentence in the written submissions. The state too had not responded to the appellant’s sentence
appeal in its written submissions which it relied on at the hearing. Therefore, the appellant is deemed to have not pursued his sentence
appeal at the leave to appeal hearing. Since this court has not considered his sentence appeal, I would not dismiss it but leave
to appeal would be refused on the basis of non-prosecution. Order Hon. Mr. Justice C. Prematilaka JUSTICE OF APPEAL
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