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State v Johnson [2010] FJHC 360; HAC120.2008 (26 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC120 of 2008

STATE

V

RAYMOND JOHNSON

Hearing: 23rd – 25th August 2010
Judgment: 26th August 2010

Counsel: Mr. L. Fotofili for State
Accused in person

JUDGMENT

[1] After deliberating for 30 minutes, the assessors returned and expressed unanimous opinion that the accused is not guilty of the following offences:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

RAYMOND JOHNSON f/n Jack Johnson, on the 14th day of June, 2008 at Nasinu in the Central Division, robbed SANISH KUMAR SINGH s/o BHADUR SINGH of $2,400.00 in cash, assorted jewelleries valued at $12,245.00, Sony digital camera valued at $400.00, TV set valued at $300.00, assorted liquor valued at $60.00 all to the total value of $13,014.00, and immediately before such robbery did use personal violence to the said SANISH KUMAR SINGH s/o BHADUR SINGH.

SECOND COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to section 292 of the Penal Code, Cap 17.

Particulars of Offence

RAYMOND JOHNSON s/o Jack Johnson, on the 14th day of June, 2008 at Nasinu in the Central Division, unlawfully and without colour of right but not so as to be guilty of stealing drove the motor vehicle registration number DL726 for his own use, the property of SANISH KUMAR SINGH s/o BHADUR SINGH.

[2] I adjourned overnight to consider my judgment. I direct myself in accordance with the law contained in my summing up to the assessors.

[3] I bear in mind that whilst the opinion of the assessors carries great weight, the verdict of the court is that of the judge and it is his duty to reach his own conclusion on the evidence (Joseph v The King [1948] AC 215. In Ram Dulare & others v R [1955] 5 FLR 1 the Court of Appeal referred to Joseph's case and said:

"..... [the assessors] duty is to offer opinions which might help the trial Judge. The responsibility for arriving at a decision and of giving judgment in a trial by the [High] Court sitting with assessors is that of the trial Judge and the trial Judge alone and ... he is not bound to follow the opinion of the assessors."

[4] More recently, in Sakiusa Rokonabete v The State Criminal Appeal No. AAU0048/05, the Court of Appeal observed:

"In Fiji, the assessors are not the sole judges of fact. The judge is the sole judge of fact in respect of guilt and the assessors are there only to offer their opinions based on their views of the facts."

[5] If the presiding trial judge disagrees with the opinion of the assessors, he must give written reasons for differing from the opinion and those reasons must be pronounced in open court (s. 237(4) of the Criminal Procedure Decree and predecessor s. 299(2) of the Criminal Procedure Code). The reasons for differing with the opinion of the assessors must be founded on the weight of the evidence and must reflect the presiding judge's views as to the credibility of witnesses (Ram Bali v Regina [1960] 7 FLR 80 at 83 (Fiji CA), Ram Bali v the Queen (Privy Council Appeal No.18 of 1961), Shiu Prasad v Reginam [1972] 18 FLR 70, at 73 (Fiji CA). In Setevano v State [1991] FJA 3 at 5, the Court of Appeal stressed that the reasons of the presiding trial judge:

"must be cogent and they should be clearly stated. In our view they must also be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial."

[6] The prosecution substantially relies on the identification evidence of the complainant, Sanish Kumar Singh, to prove the charges against the accused. The complainant's evidence is that on 14 June 2008 at 3 am, he was confronted by six intruders inside his home at 71 Ratu Dovi Road, Nadera. The intruders broke into his house by cutting the padlock on the burglar grill door and by forcefully opening the entrance door with a pinch bar. They came into his bedroom and switched on the light. He had a two feet tube light in his bedroom. According to him, the accused was the ring leader. The accused had a pompom on his head but his face was not covered. The accused pointed a knife at the complainant and demanded money. The complainant said the accused spoke in English and was standing a metre away from him. The complainant said he observed the accused for ten minutes. The accused packed the stolen item in a bag in the presence of the complainant. The complainant said the intruders fled the scene in his vehicle, which was later found abandoned in another location on the same day. Fourteen days later, the complainant identified the accused as the intruder who pointed the knife at him, in a police line up identification parade at Valelevu Police Station. In cross examination, the accused suggested to the complainant that he had seen him in a police vehicle that stopped in front of him at Valelevu Police Station car park on the day before the identification parade. The complainant admitted being present at Valelevu Police Station on 27 June 2008 and talking to the driver of the police vehicle but he denied seeing the accused inside the vehicle.

[7] The remaining five prosecution witnesses were police officers. They gave evidence of the identification parade. ASP Sami Suren conducted the identification parade. He had no other involvement in the case. According to ASP Suren, the identification parade comprised of nine Fijian men. The men were medium built and between the age of 18 and 38 years. The parade procedure was explained to the accused. He consented to participate in the parade. He chose to stand between the sixth and the seventh men participating in the parade. The complainant was kept in a separate room. He was escorted to the parade by another police officer to the room where the parade was being held. ASP Suren said the complainant identified the accused without any hesitation.

[8] The accused's defence is alibi. He gave evidence that he was home on 14 June 2008 at 3 am when the offences alleged to have taken place. He said he had nothing to do with the robbery or taking of the vehicle. His wife, Sulueti Waqa, gave evidence in support of his alibi.

[9] On the evidence led at the trial, one will have to reject the identification evidence of the complainant as unreliable, or without necessarily rejecting the identification evidence, accept the alibi of the accused as truth, to find the accused not guilty. In the later scenario, there has to be a reasonable doubt as to the guilt of the accused, the burden being not discharged by the prosecution to disprove the alibi. Of course, the standard of proof remains on the prosecution throughout the trial to prove guilt beyond a reasonable doubt.

[10] There are two issues.

[11] Is the identification unreliable?

The complainant identified the accused in good lighting condition, from a distance of 1 metre and for a period of 10 minutes. The complainant said the accused stood right in front him and pointed a knife at him. Nothing obstructed his view. The accused wore a pompon on his head but his face was not covered. Subsequent identification was made 14 days later in a police identification parade.

[12] The accused submits that the identification parade was unfairly conducted. Firstly, he points out that the complainant may have seen him in the police vehicle on the day before the parade. Secondly, he pointed out in cross- examination of ASP Suren that he was the only bald person in the parade. I am not satisfied that the identification parade was unfair on the evidence before the court.

[13] The accused in his evidence said that when he saw the complainant talking to the driver of the police vehicle he was in, his observation of the complainant was for about 2 minutes. He said there was nothing significant about the complainant but he recognised him the following day when he came to the identification parade. The accused consented to participate in the parade. The accused in his evidence did not suggest that he was shown to the complainant so that he could identify him in the parade the following day. He said the complainant may have seen him in the police vehicle before the identification parade, which made the identification evidence suggestive when the complainant came to the parade the following day.

[14] The complainant's evidence is that he did not see the accused in the police vehicle on the day before the identification parade. The evidence is that the complainant identified the accused in the parade because he clearly saw the accused's face on the day of the alleged robbery at his home. The evidence is that the accused was identified because of his physical features and not because the identification parade was suggestive by the fact that the complainant may have seen him on the day before the parade or because the accused was the only bald man in the parade. I do not accept the contention that the identification was made suggestive to the complainant by showing him the accused on the day before the parade. If the police officers wanted to make the parade suggestive to the complainant, they could have easily got the complainant to point out to the bald man in the parade because the accused was the only participant in the parade with that distinguishing physical feature. I believe and accept the evidence of the complainant that he had not seen the accused on the day before the identification parade.

[15] The evidence before the court is that the initial identification of the accused by the complainant was not a fleeting glance and that the identification parade was not suggestive but fairly conducted. Clearly, the identification evidence is reliable and acceptable. In this regard, the opinion of not guilty by the assessors is against the weight of evidence.

[16] Is the alibi of the accused credible?

The accused's evidence is that he was home at the time the offences were committed. In cross-examination, the accused said he went across the road to his neighbour's house to drink grog on the evening of 13 June 2008, but he could not recall the time he returned home. His wife gave conflicting evidence regarding the time the accused returned home from the neighbour's house after drinking grog. At first she said the accused returned home at 11 pm but when cross-examined on her previous statement to the police, she said the accused returned home from the neighbour's house at 3.30 am.

[17] Even if I take into account the effect of delay on the memories of the accused and his wife when they gave evidence, the alibi evidence is so vague and full of contradiction that it is not worthy of any credence. It was not open on the evidence for the assessors to believe the alibi of the accused.

[18] For the reasons given, I do not accept the opinion of not guilty by the assessors. I am satisfied beyond a reasonable doubt that the complainant positively identified the accused as one of the intruders who robbed him in his home on 14 June 2008 at 3 am, and that he is not mistaken in his identification of the accused. Further, I am satisfied beyond a reasonable doubt that the identification parade was fairly conducted by the police and the subsequent identification of the accused by the complainant was not suggestive. I accept the identification evidence of the complainant as reliable.

[19] I do not believe the alibi of the accused. I reject the alibi evidence of the defence.

[20] The prosecution has satisfied me of the guilt of the accused beyond a reasonable doubt. Accordingly, I convict the accused of robbery with violence and unlawful use of motor vehicle as charged.

Daniel Goundar
JUDGE

At Suva
26th August 2010

Solicitors:
Office of the Director of Public Prosecutions for State
Accused in person