IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0020-021 of 2005S

Between:

JOSUA RAITAMATA
Appellant

And:

THE STATE
Respondent

Hearing: 22nd July 2005
Judgment: 29th July 2005

Counsel: Appellant in Person
Mr. D. Prasad for State

JUDGMENT

The Appellant has appealed to the High Court in respect of two convictions and sentences, imposed on him by the Nausori Magistrates’ Court. On the 27th of August 2004, he was convicted of shop breaking, entering and larceny in HAA0021 of 2005. On the same day, in HAA0020 of 2005, he was convicted of robbery with violence. He was sentenced to a total of 6½ years imprisonment. I deal with both appeals together, because the Appellant takes issue with the totality of the terms imposed.

The charge on HAA0020 of 2005 reads as follows:

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code, Cap. 17.

Particulars of Offence

JOSUA RAITAMATA with three others, on the 22nd day of November, 1999 at Nausori in the Central Division, robbed one SURESH KUMAR SINGH s/o Raghubar Singh of $5,541.38 cash and immediately before such robbery used personal violence to the said SURESH KUMAR SINGH s/o Raghubar Singh.

He was granted bail but he only attended court intermittently. Indeed on the 27th of August 2001, his own counsel agreed that he should be remanded pending trial. The bench warrant was finally executed on the 18th of June 2003. The trial however did not commence until the 16th of March 2004.

The evidence led was that the company director of a rice mill, Suresh Kumar Singh was at his office in Nausori on the 22nd of November 1999, when he was attacked and robbed by four men. He said that one of his attackers was the Appellant. He said that one of the four men hit him and took away $5000 in cash. They tied up his hands using masking tape. Under cross-examination he agreed that he only identified the Appellant because he had been told by the prosecutor in court, that the Appellant was one of the attackers.

This evidence was corroborated by Ravi Nand, a bus driver who was, in 1999 employed by the rice mill. His hands were also tied with masking tape. He could not identify the Appellant.

PW3 was a minibus driver called Viliame Bula. He said that at 7.30am on the 22nd of November 1999, he had been employed as a security guard at a garment factory beside the Visama Rice Mill. He saw three boys run across to the main road from the mill, board a vehicle and leave towards Nausori town. One of the boys was carrying a cloth bag. He attended an identification parade. There, he recognised the Appellant. He knew him because he used to see him around town.

There was then a long adjournment and the trial proceeded on the 9th of August 2004. Police Constable Koro tendered the Appellant’s caution interview. It was exculpatory. The prosecution closed its case. The Appellant chose to remain silent. Judgment was delivered on the 27th of August 2004.

The learned Magistrate accepted the evidence of PW1, and rejected his evidence of identification on the ground that it was improper. However, she directed herself in accordance with R v. Turnbull (1976) 3 ALL ER 549, and accepted the evidence of PW3, Viliame Bula. She said that this was a case of recognition, that he recalled the events vividly and that the identification took place in broad daylight at a distance of 150 metres. She also found some support for the identification in the contents of the Appellant’s caution interview. In it, he said he came to Nausori town that morning, on foot from Kasavu to Lakena. At Lakena he boarded a bus with two others. At the bus station they boarded an express van between 8.30am and 9am to go to Korovou. She found these movements to be highly suspicious. She then convicted him.

The Appellant admitted 9 previous convictions, the most recent being one in 1993 for act with intent to cause grievous harm. In mitigation he said he was 38 years old, and married with a 5 year old child. Clearly, the list of previous convictions was not accurate, because he said he had last offended in 2001. He said he was employed by J.S. Hill and asked for a concurrent sentence. The learned Magistrate started at 4 years imprisonment, and after taking into account aggravating and mitigating circumstances, sentenced him to 4 years imprisonment.

In HAA0021 of 2005 the Appellant was charged as follows:

FIRST COUNT

Statement of Offence

SHOP BREAKING ENTERING AND LARCENY: Contrary to Section 310(a) of the Penal Code Act 17.

Particulars of Offence

JOSUA RAITAMATA and TOMASI BAINIVALU between the 20th day of June 2000 and the 21st day of June 2000 at Nausori in the Central Division broke into the shop of RAKESH NARAYAN s/o Roop Narayan and stole from therein assorted jewelleries valued $1,219.00, assorted electrical items valued $1,245.00, assorted mechanical tools valued $83.00, 45 Tabua valued $1,450.00, 12 wrist watches valued $500.00, cash $1,859.26 and assorted household items valued $2,908.00 all to the total value of $15,304.26 the property of the said RAKESH NARAYAN s/o Roop Narayan.

SECOND COUNT

Statement of Offence

FOUND OUT OF DOORS WITHOUT A WRITTEN PERMIT: Contrary to Section 7(3) and 25 of Public Emergency Regulation (Decree No. 2 of 2000) and of the Public Safety Act 19.

Particulars of Offence

JOSUA RAITAMATA on the 21st day of June 2000 at Nausori in the Central Division was found out of doors on Wainibokasi Road without a written permit between the specified hours of 8.00pm on 20.6.2000 to 5.00am on 21.6.2000.

The charges were laid in January 2001. Again, the Appellant came to court only occasionally, and the trial eventually commenced on the 26th of July 2004. The evidence was that one Suruj Prasad was the manager of a pawn shop in Nausori. On the 20th of June 2000, he came to work because he was called by the police. He found the lights on, a mat used as curtains and all items scattered on the floor. The back door was broken. At the police station, he identified several items as his. A soldier Batikawai Wara gave evidence that at 3am on the 20th of June 2000 he had been stationed at Nausori Police Station. He heard guards at the bridge call out “Butako”. He, with his driver and two soldiers went to the bridge. The guards there point towards Nausori Health Centre. He then proceeded to Nausori Village with his men, and ran through the village. He saw the Appellant running with a green bag. He recovered the bag and caught the Appellant. He found two screwdrivers in his pocket. He then brought the Appellant and the bag to Nausori Police Station. He said that at the time there was a curfew which began at 10pm and ended at 5am.

Corporal Yunus was then stationed at Nausori Police Station. He said that the Appellant was brought in by army officers together with a bag filled with assorted items. He informed PW1 of the break in. Sergeant Viliame of Nausori Police Station interviewed the Appellant under caution. The statement was exculpatory.

The Appellant made an unsworn statement. He said that he happened to be at the junction to Nausori Village at that hour, when he saw three boys running towards him. They said they were being chased by soldiers. He ran with them because he thought they were being chased because they were out in breach of the curfew. He ran towards Sila and hid in the bushes where he was found. He said he didn’t know anything about the break in and that the other boys had the items.

The learned Magistrate delivered judgment on the 27th of August 2004. She reviewed the evidence led before her. She correctly said that there was no direct evidence implicating the Appellant, but that there was circumstantial evidence in that he was found carrying a bag containing the stolen items, and the bag was found only 5 metres away from where he was arrested. She rejected his unsworn evidence and convicted him on the basis of his recent possession of the stolen goods.

The Appellant’s mitigation was identical to the mitigation he offered in the robbery case. The learned Magistrate considered the seriousness and prevalence of the offence, the planning involved, and the value of the stolen goods. She identified the tariff as being between 18 months and 3 years. She sentenced him to 2½ years imprisonment, saying that there were no mitigating factors. The sentence is to be served consecutive to the sentence in the robbery case. The second count, of being in breach of a curfew, was withdrawn by the prosecution on the 26th of July 2004.

The Appellant made full written submissions in respect of both convictions. In HAA0020.2005 he said that the quality of the identification evidence was unsatisfactory because it was only for a fleeting moment at 150 metres. He said that the conviction was unsafe without corroboration. In HAA0021 of 2005, he said that his unsworn evidence had been disregarded by the Magistrate, that he was never in possession of the bag containing the stolen goods, and that being found 5 metres away from the bag did not constitute sufficient circumstantial evidence. He referred to authorities to support his submission that in order for the State to prove recent possession, the defendant had to be found in control of the stolen goods.

He did not pursue his appeal against sentence, but I have considered sentence anyway, because his original letter of appeal contained an appeal against sentence.

State counsel opposes both appeals. He said that he was caught with the stolen goods in one case, and on the basis of good identification evidence in another. In the latter, he said that this was not a case of “fleeting glance” identification, because the Appellant was recognised by the witness. In relation to sentence he said that both sentences were correct in principle, and that given the Appellant’s previous convictions, consecutive terms were justified.

Identification

It is quite correct that the Appellant was convicted of robbery with violence substantially on the evidence of identification by one witness. It is also correct that the identification took place while the Appellant ran out of the rice mill and into a waiting car, and that the witness was standing 150 metres away. However, it was daylight, and this was a case, not of a first-time identification, but of the recognition of a person the witness was accustomed to seeing around the town. Further, the learned Magistrate considered the evidence of identification with scrupulous care, in her judgment. She accepted the evidence of the witness after warning herself of the possible weaknesses in the evidence. It was a finding, which she was entitled to make. Even if she had not regarded the Appellant’s unsworn evidence with skepticism, she was entitled to convict on the evidence of PW3 alone.

In relation to HAA0021 of 2005, she convicted on the doctrine of recent possession. This doctrine is that where a person is found in possession of recently stolen goods, and offers no reasonable explanation for it, he may be convicted either of stealing the goods or of receiving them, knowing the same to be stolen. The word “possession” requires some degree of knowledge and control as the Appellant quite rightly pointed out.

If the only evidence had been that he had been arrested near the bag of stolen goods, the prosecution might have had difficulty in proving recent possession. However the army officer (PW2) said, at page 21 of the record:

“Got off vehicle, ran across village, heard shouting on a house believed to have been place where boys went to. Josua Raitamata and his gang went through a house where group of men drinking kava to another door. Saw them and saw Raitamata running with a green bag – same as one in court. Running towards Sila Secondary School. Followed him. As bag heavy he threw it in front of him and he hid in the grass. Managed to recover bag as well as Raitamata. He willingly surrendered.”

Although the Appellant cross-examined him at length, he did not suggest to this witness that he had not been carrying the green bag. The first time he suggested that, was in his unsworn statement.

In the circumstances the learned Magistrate was entitled to convict on the evidence of PW1 (who identified the stolen goods), PW2 and PW3.

The appeal against conviction is dismissed.

The offences were committed separately. Indeed, one is dated the 22nd November 1999, and the other the 20th of June 2000. They called for consecutive sentences. Although the sentence for shop-breaking is at the higher end of the tariff, it was planned and the value of the goods stolen was high. In respect of the case of robbery, the Appellant was fortunate to receive a sentence at the lowest end of the tariff. No doubt it reflected the delay before trial and sentence. In total, the 6½ term of imprisonment is not excessive. Further, the delay was of the Appellant’s own making.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
29th July 2005