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Tusiga v The State [2005] FJHC 219; HAA0037.2005 (12 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0037 OF 2005

BETWEEN:

IOWANE TUSIGA
Appellant

AND:

STATE
Respondent

Counsel: Appellant – In Person
Mr. D. Prasad - for State

Date of Hearing: 29th July, 2005
Date of Judgment: 12th August, 2005

JUDGMENT

Background

The applicant was tried and convicted in the Magistrate’s Court on one charge of robbery with violence and one charge of unlawful use of a motor vehicle.

It was said that he and one other mugged and robbed a taxi driver of $60.00 cash and then stole his motor vehicle. The taxi driver and a colleague chased these robbers. When given an opportunity the taxi driver activated an electronic switch that disabled the engine and stopped the stolen vehicle in its tracks.

The Prosecution said that this appellant then got out of the car and ran off. He was chased by the taxi driver complainant. During the chase it is said that the appellant threw a black bag at the complainant. He then made good his escape.

The taxi driver took the bag to the Police Station. In it was property belonging to this appellant including his driver’s licence.

The appellant several days later went to the police station and reported the bag missing. He was not to know that this very police station had the bag in their possession. He was interviewed but denied the charges against him. He claimed innocence by alibi. He said that on the night of the crime (the 9th of October 2004) he had been at a volleyball tournament with his black bag and it had been stolen.

He said after the volleyball tournament he went and visited a cousin near to his grandmother’s property. He said that 3 days later (the 12th of October 2004) he complained about the missing black bag to the volleyball team captain.

During the course of interview the appellant agreed to an identification parade. He was positively identified during that parade. At the continuation of his interview (pages 37 and 38 of the record) he confirmed to the Interviewing Officer that the identification parade was fairly conducted and he had no complaints about it. At trial he maintained his alibi but called no witnesses.

He appeals against sentence and conviction.

The appellant supplied an eight page neatly handwritten memorandum and relied on the contents of that document for his appeal.

He emphasized his alibi. He sought a re-trial where he claimed he would bring along witnesses to confirm his claim to being absent at the crime. As such he could find no error in the learned Magistrate’s Judgment but in fact wanted to re-run his hearing in a better way.

He criticized the admissibility of the identification evidence and the weight placed on it. In his view the identity parade was flawed as he felt singled out amongst a much more roughly presented group whereas he was neatly attired and presented.

Again, he could find no error in respect of the judgment on identity but rather wanted a re-trial to improve his chances. He was unrepresented at the first trial and he said that this was reflected in the unskilful way in which he presented his case.

The State filed very helpful written submissions answering each of the specific points raised on appeal. Counsel emphasized that the judgment was well considered and more than ably dealt with issues of fairness, identity and alibi.

Decision

This court is always reluctant to interfere with the factual findings of a court at first instance unless there has been some significant error of law or judgment.

In my view the decision by the learned Magistrate is thorough, it addresses the salient issues, applies the correct standard and reaches a reasonable conclusion based on the burden and onus of proof.

The fact that in this appellant’s view there was a lot more that he wanted to say does not affect those findings on appeal.

Concerning the identification issue I agree with the learned Magistrate the identity parade was properly conducted. The identification by the complainant was a strong one. I also find it unusual that the appellant complains only now at his appeal about the quality of the identification parade. In his statement to the police he had no complaints and agreed the identification parade was fair. In his trial at first instance he made very little of the identification parade.

As to his criticisms of the learned Magistrate’s rejection of his alibi the appellant points to what he says is a factual finding error in the learned Magistrate’s judgment at page 20 of the record where the learned Magistrate highlights the contradictory statements about alibi made by the appellant. When he did so the learned Magistrate referred to only one question that highlighted that contradiction. He correctly stated the contradiction but perhaps overlooked that it was more starkly contradictory as between the appellant’s evidence at page 15 in his interview statement where he claimed to go from the volleyball tournament by bus to see his cousin junior at his grandmothers (question 27) and page 31 of the record where he changes his story during the police interview claiming that he didn’t go to his grandmother’s house he just met his cousin junior on the road and they talked.

In this sense I see nothing wrong with the learned Magistrate’s finding at page 20 and his rejection of the alibi.

The other significant matter the appellant relies on was the fact that he was unrepresented at trial. I note that he was given the opportunity for representation and waived his right to counsel. In my view he was given ample time to prepare his defence including time to call witnesses in support of any alibi. He participated in the hearing by cross-examining witnesses and finally made an election to call no witnesses but gave a sworn statement.

The learned Magistrate fairly considered all of the available information he had and made a proper finding of the facts.

Accordingly the appeal against conviction fails.

Sentencing Appeal

This appellant has a long history of previous convictions including dishonesty and robbery with violence. He had, before this charge, served time in prison.

In a well reasoned and very properly constructed sentence the learned Magistrate imposed in my view a very modest term of imprisonment against this appellant for the very prevalent crime of taxi driver mugging.

He was fortunate to only receive a sentence of 2½ years imprisonment. Bearing in mind his record that is if anything a lenient sentence, I dismiss the sentencing appeal accordingly.

Gerard Winter
JUDGE

At Suva
12th August, 2005