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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION
CRIMINAL APPEAL NO.: AAU0045 OF 2007S
HIGH COURT ACTION NO.: HAC 56/2007
BETWEEN:
SAULA LALAGAVESI
Appellant
AND:
THE STATE
Respondent
Coram: Shameem, JA
Goundar, JA
Scutt, JA
Date of Hearing: 11th February, 2008
Counsel: Mr. V. Vosarogo for the Appellant
Mr. P. Bulamainaivalu for the State
Date of Judgment: 7th March, 2008
JUDGMENT OF THE COURT
INTRODUCTION
[1] The determination of this Court is that the Appellant, Mr Lalagavesi, should succeed in his appeal. This accords with the principles relating to reliance upon identification evidence, as set out in R v Turnbull & Anor [1976] 3 All ER 549 (CA), approved by the Court of Appeal in Semisi Wainiqolo (CA Criminal Appeal No. AAU0027 of 2006; HCCC No. HAC 0008 of 2005, 24 November 2006).
[2] In convicting Mr. Lalagavesi, the Magistrates’ Court did not advert to Turnbull. In his appeal against conviction, again the principle in Turnbull was not adverted to by the High Court.
[3] The appeal goes to a particular aspect of identification evidence directly involving the circumstances relating to the identification; the use to which it can be put; and the care that must be taken by trial courts in ensuring that Turnbull and Semisi Wainiqolo are applied with rigour. This is of fundamental importance to the trial process. The need to pinpoint the error with clarity is essential. Hence, we set out in some detail the history, evidence in the trial and the Magistrate’s Court determination, and the issues raised in this appeal by Mr. Lalagavesi, his Counsel, and Counsel for the State.
GROUNDS OF APPEAL
[4] The Appellant, Mr. Saula Lalagavesi, appeals against his conviction on 8 February 2007 by the Magistrates Court at Lautoka. On that day Mr. Lalagavesi was convicted under section 298 of the Penal Code Cap.17 and sentenced to two (2) years’ imprisonment. He appealed to the High Court against conviction. On 4 April 2007 the High Court dismissed his appeal.
[5] By letter dated 26 April 2007, Mr. Lalagavesi lodged an application in the Court of Appeal, seeking leave to appeal in respect of both conviction and sentence. On 23 August 2007, he was granted leave to appeal to the Full Court of this Court.
[6] Mr. Lalagavesi was not represented in his original trial, nor in his appeal or leave to appeal application. He lodged his own appeal papers to the Full Court, however was represented in the hearing before this Court. Mr. Lalagavesi’s lack of legal representation was raised by him, by his Counsel in the Full Court of the Court of Appeal, and by Counsel for the State as a matter of concern, particularly upon the basis that had he been represented at the trial, the requirement for a Turnbull direction would have been raised.
[7] In his appeal to the Full Court of the Court of Appeal, Mr. Lalagavesi is entitled to appeal not on the facts, but on law only: Court of Appeal Act (Cap. 12), s. 22(1)
[8] In his leave to appeal application, the Court of Appeal observed that Mr. Lalagavesi’s ‘only argument ... was that he had consistently denied he had committed the offence and complained particularly that no identification parade was held’: Ruling, 23 August 2007, para [2] The question for the Full Court as set out in the Ruling on Leave to Appeal, is:
Whether the Learned Magistrate should have cautioned herself in accordance with Turnbull’s case on the quality of the identification evidence against the Appellant: R. v. Turnbull & Anor [1976] 3 All ER 549 (CA)
APPELLANT & RESPONDENT’S SUBMISSIONS
[9] As initially unrepresented, Mr. Lalagavesi made his own written submissions to the Full Court, focusing on the identity question. Amongst other matters he said that the issue of identity ‘was important ... and it was not established that [he] was the person who was in the actual crime’:
Reasonable doubt exists in the allegation because the only evidence lead[ing] to my conviction was the evidence of identification which was not fairly conducted. There are contradictions in the identification of the accused by witnesses and the description of clothes worn by the accused ...
Finally, I ... submit that my identity was not established and the State fails the identification criteria with regards to the Turnbull case to the ‘line of sight’, ‘direct vision’ [and] ‘identity parade’ [in] which the state witness[es] ... failed miserably. It is submitted that discrepancies in identity [are] to be treated with care as a slight mistaken identity will result in the conviction of an innocent person or accused ...: Written Submissions, pp. 1-2, 2-3
[10] The State agrees that Mr. Lalagavesi should succeed in his appeal, saying amongst other matters:
Having perused the learned Magistrate’s and Judge’s decisions, it is apparent that the former had failed to caution herself of the danger of relying entirely on the uncorroborated identification evidence of [the arresting police office] PC.3018 ... (PW2) to convict the Appellant: Written Submissions, para 21
[11] Counsel for Mr. Lalagavesi observes that the appeal is from a decision where the conviction was based ‘entirely on identification evidence’, going on to acknowledge the State’s agreement that ‘conviction was based solely on the identification evidence of one of the prosecution witnesses’ and adding:
Noting the approval of the Court of Appeal in Semisi Wainiqolo (CA Criminal Appeal No. AAU0027 of 2006; HCCC No. HAC 0008 of 2005, 24 November 2006) on the guidelines [as to identification evidence] in Turnbull the three critical issues are:
(i) Did the Magistrate warn herself of the danger of conviction on identification evidence alone?
(ii) Did the Magistrate direct her mind on the circumstances on which the identification came to be made?
(iii) Did the Magistrate remind herself of any specific weakness which had appeared in the identification evidence? Written Submissions, para 3.8
MAGISTRATE’S JUDGMENT
[12] In her judgment, the Magistrate observed that on the afternoon of 11 October 2006, PW1 closed and bolted the door of the small temple in his compound. Awoken by a noise early in the morning of 12 October, from his window PW1 saw some 6 metres distant a Fijian man dressed in a jacket and pompom hat endeavouring to remove shutters from a neighbour’s house. (PW1’s actual evidence as that he saw a ‘man ... trying to remove the shutters from my neighbour’s house ... He removed the shutters and then he removed the window ...’: Ct Record at 22)
[13] Alerting a neighbour, PW1 and two others chased the intruder from a distance before losing him. Upon returning home, PW1 discovered the door to the temple was open, statues were displaced, and $8.00 was missing.
[14] There was no dispute as to the breaking and entering of the temple, or the theft of $8.00. What was in dispute was the allegation that Mr. Lalagavesi was the person responsible.
[15] Of the three people who chased the intruder, one was PC 3018 (PW2). He said Mr. Lalagavesi was ‘well known to him’ for Mr. Lalagavesi had attended at the Police Station many times for different cases, and had spent three months there as an extra-mural prisoner, with PW2 seeing and greeting him. PW2 said he had recognised Mr. Lalagavesi during the chase. He recorded his own statement later on that day, 12 October 2006.
[16] PW1 identified Mr. Lalagavesi in a photograph at the Police Station out of about 50 police photographs. He identified Mr. Lalagavesi in court, saying he had seen him clearly at two points in the chase, and that Mr. Lalagavesi’s face ‘was familiar’ as he had ‘seen him around the area’. The Magistrate was critical in some respects of this evidence and the conduct of the police vis-à-vis photographic identification rather than an identification parade. Setting no great weight on the identification evidence of PW1, the Magistrate said:
The use of photographs is permissible only if it is not possible to hold [an identification] parade for some reason. If the identification is to be done by way of photographs then the officer who organises this should give evidence so the court can be sure proper procedures were followed: Ct Record at 36
[17] It was insufficient, the Magistrate said, for the prosecution to rely on a question to Mr. Lalagavesi: ‘Do you want to do identification parade?’ and the recorded answer: ‘No’ [which Mr. Lalagavesi disputed], ‘ to establish that the accused refused to participate in a parade’: Ct Record at 36
[18] The Magistrate nonetheless concluded:
In this case I am satisfied that [PW1] did chase the accused for some distance and that he had time and opportunity to see at least the general stature and appearance of the accused. His evidence is therefore supportive of the evidence of [PW2] whilst not being conclusive: Ct Record at 31
[19] Mr. Lalagavesi’s evidence was that on the night of 11/12 October 2006 he was staying at his brother’s house at Fultala Place Field 40. His brother’s evidence was that Mr. Lalagavesi had indeed spent the night there, as he said. However, Mr. Lalagavesi’s brother said that after going to bed at 9pm on 11 October he did not see Mr. Lalagavesi, and that upon rising and going off to work at 5.45am on 12 October, he did not see him. Mr. Lalagavesi said he left his brother’s house at 6am to return to his father’s house at Captain Withers Street Field 40. This was consistent with his record of interview, except that when asked if he went anywhere early in the morning of 12 October, Mr. Lalagavesi answered ‘No’. In oral evidence he denied knowing, or even having ever seen, PW2.
[20] The Magistrate concluded:
Fultala Place and Captain Withers Street are very close together and not far away from Chandmari Street where part of the chase took place. [Mr. Lalagavesi] admits he was out alone in the Captain Withers/Fultala area at 6am. The prosecution cases rests almost entirely on the identification of [PW2]. This officer has 6 years’ experience. He says he got a close look at the accused’s face on two occasions during the chase. The accused is well known to him, and he identified him by name immediately. I reject the evidence of [Mr. Lalagavesi] that he did not know and had never met [PW2]. I am satisfied beyond reasonable doubt that [Mr. Lalagavesi] has been correctly identified as the intruder who was attempting to break into the neighbour’s house.
[21] This Court has a number of reservations in respect of this conclusion, to which we will return in the context of Turnbull’s case. Save as to say at this point that what is compelling is not that the identification relates to Mr. Lalagavesi at the attempted housebreaking (as incorrectly stated by the Magistrate), but that it relates to Mr. Lalagavesi as ‘chasee’: that is, the identification of Mr. Lalagavesi by PW2 was not in relation to the attempted housebreaking which he did not see (nor of the temple break-in of which he knew nothing at that time), but to the chase in which he (PW2) engaged together with PW1.
[22] On this, see later, however at this point it is important to observe that no identification by PW2 relates to the time of the attempted housebreaking, much less the temple. The only identification as to the attempted housebreaking is by PW1. That identification is not of Mr. Lalagavesi – at least as Mr. Lalagavesi – but of ‘one Fijian man wearing a pompom hat on his head, a T-shirt and ¾ pants’. Later, at the field after the chase, PW1’s identification was of a man wearing a ‘black jacket’ (as per the evidence of PW2) – not a T-shirt.
[23] As to the attempted break-in of the neighbour’s house, even had Mr. Lalagavesi’s identification by PW2 occurred in relation to it, would this mean that the identification can then be related to the desecration of the temple?
[24] The Magistrate dealt with this by reference to the principles governing reliance upon circumstantial evidence, citing Semisi Wainiqolo and Anor v. The State (CrApp No. AAU 0061 of 2005) and Tekuru and Anor v. The State (CrApp HAA 022 of 2004S).
[25] The Magistrate referred to the following statement of principle from Semisi Wainiqolo:
It appears to be a widely held misapprehension that circumstantial evidence is not proper evidence and that it cannot prove the guilt of an accused. That is not correct. If the circumstantial evidence is relevant to the allegation, it will be admissible. In general it is unlikely to be as telling as direct evidence but, in some cases, it may be more persuasive as, for example, where there are a number of matters of circumstantial evidence from different sources which all point to the same conclusion: at 4
[26] From Tekuru the Magistrate cited this passage:
The law is that where the prosecution relies on circumstantial evidence to prove its case, the accused can be found guilty only if the only reasonable inference the court can draw from the set of circumstances, is the guilt of the accused. There must be no other available and reasonable inference which is equally consistent with the accused’s innocence, and the court must be satisfied of the accused’s guilt beyond reasonable doubt: at 5
[27] This Court doubts that the evidence here meets the standards as recited in Semisi Wainiqolo and Tekuru albeit the Magistrate said she adopted them. We return to this later in canvassing the evidence and application of Turnbull.
[28] In the Magistrate’s Court, circumstantial evidence was dealt with as follows:
The circumstantial evidence in this case is strong. [Mr Lalagavesi] was seen only a few meters from the temple at about 6am. He was attempting to break in to the neighbour’s house: Ct Record at 38
[29] We interpose here to observe again that Mr. Lalagavesi qua Mr. Lalagavesi was not identified at this point. As earlier noted, the evidence of PW1, the only person who saw the attempted break-in
of the house, was as to ‘one Fijian man ...’. See further later.
[30] The Magistrate’s Court continued as to circumstantial evidence:
The temple had been shut up only the afternoon before and is close to the complainant’s house. I consider that the possibility that someone else broke into the temple is so remote that it could be described as fanciful: Ct Record at 38
[31] Yet this recitation of the circumstances contains a non-sequiter: proximity to PW’s house is not so much an issue as proximity to the neighbour’s house. Identification is relevant to proximity to PW1’s house – for the purpose of establishing PW1’s ability to see clearly or otherwise, so as to identify or fail to identify the attempted housebreaker. However, as to the break-in of the temple, it was not PW1’s house upon which the attempted housebreaking occurred or was seen, but the neighbour’s house. Hence more relevant to whether the temple was broken into by the person who attempted the housebreaking is whether the temple was proximate to the neighbour’s (not PW1’s) house.
[32] Further on circumstantial evidence, the Magistrate continued:
The accused raised a number of issues in his defence. It is true that the prosecution did not find clothing of the description worn by the intruder. It is true that the $8 was not recovered and that police were unable to get any clear fingerprints from inside the temple.
The prosecution does not have an obligation to present every possible piece of evidence to the court. It does bear the burden of adducing evidence sufficient to establish that the accused committed the offence charged beyond reasonable doubt. I am satisfied that the prosecution have discharged this burden and you are convicted as charged: Ct Record at 39
IDENTIFICATION EVIDENCE & TURNBULL’S CASE
[33] In written submissions, Counsel for Mr Lalagavesi observed that upon perusal of the Magistrate’s Court record, proposition 3.8(i) - set out as:
(i) Did the Magistrate warn herself of the danger of conviction on identification evidence alone?
‘was never considered by the Magistrate and not considered on appeal to the High Court’: Written Submissions, para 3.9
[34] As to the second proposition:
(ii) Did the Magistrate direct her mind on the circumstance on which the identification came to be made?
the written submissions say:
It is also clear that some discussion of the evidence on (ii) was made in one line on page 38 of the Record at paragraph 3: Written Submissions, para 3.10
[35] Counsel’s reference here is to the Magistrate’s statement: ‘I consider that the possibility that someone else broke into the temple is so remote that it could be described as fanciful’: Ct Record at 38
[36] In regard to the third proposition:
(iii) Did the Magistrate remind herself of any specific weakness which had appeared in the identification evidence?
the written submissions say that the Magistrate ‘failed entirely to discuss anything to remind herself [as] would be required by [proposition] (iii) ...’
[37] Written submissions by Counsel for the State set out the principle in these terms:
As a matter of practice, the uncorroborated identification evidence of ... (PW2) meant that it was mandatory of the learned Magistrate to have warned herself of the danger of relying entirely on such evidence to convict the Appellant. In the absence of such caution, the learned Magistrate did err in law and the learned Judge in upholding the former’s decision ... committed the same error: Written Submissions, para 2.3
[38] The passages from Turnbull upon which both Counsel rely and to which Mr. Lalagavesi in his written submissions alluded say:
First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition [the judge] should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.
Secondly the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, [the judge] should remind the jury of any specific weaknesses which had appeared in the identification evidence: at 551-52, per Lord Widgery CJ
[39] For this Court, the need to ‘examine closely the circumstances in which the identification by each witness came to be made’ is a key focus requiring consideration in Mr. Lalagavesi’s case. It was overlooked in both the Magistrate’s Court and in the High Court appeal.
[40] The ‘circumstances in which the identification by each witness came to be made’ are crucial, raising explicitly the questions listed in Turnbull, namely had the witness ever seen the accused before, how often, had he any special reason for remembering the accused ...
[41] In Turnbull, these questions were posed in the particular circumstances existing there. In the present case, the Court must look at the particular circumstances existing vis-à-vis the sighting by PW1 at the neighbour’s house – then the sighting and identification by PW1 and more particularly PW2 not at the neighbour’s house but extraneous to it – at a shop, and in a compound ‘near the fence’ (see further later). Crucially, this all occurs in a context where the identifier PW2 knows Mr. Lalagavesi as a ‘known offender’.
TRIAL EVIDENCE OF IDENTIFICATION
[42] A fundamental problem in this case is the elision occurring, from the outset, in the prosecution’s case vis-à-vis identification.
[43] As observed earlier, PW2 did not see the attempted break-in of the neighbour’s house. PW1 alone saw this. As noted his identification was not relied upon by the Magistrate, whose reliance was placed upon the identification evidence of PW2. Yet neither PW2 nor PW1 saw any break-in to the temple when it occurred. Nor (apart from the time PW1 locked it) has either of them any real knowledge as to when it happened.
[44] The temple break-in came to attention when PW1 returned to his home after the chase. On the evidence before the Court, the only time that can be fixed upon as pinpointing the temple break-in is that given by PW1 – that he locked up the temple on the afternoon of 11 October 2006. Hence, it could have been broken into at any time after the afternoon of 11 October 2006, well before the ‘Fijian man’ was sighted attempting the housebreaking, and well before Mr. Lalagavesi was chased. The only ‘timing’ of the break-in is reliant upon the inference drawn by the Magistrate that it took place before the attempted housebreaking. She did not consider the possibility that it took place well before the attempted housebreaking, or after the attempted housebreaking – whether by the ‘Fijian man with pompom hat’ – who (if he were a person other than Mr. Lalagavesi and this possibility should have at least been considered) could have hidden whilst PW1, PW2 and the other man (PW2’s brother RN) went off on the chase leading to the identification of Mr. Lalagavesi as the person being chased. Alternatively, if the ‘Fijian man with pompom hat’ were Mr. Lalagavesi, then the possibility must exist that some person other than Mr. Lalagavesi took advantage of the absence of PW1, the temple owner, PW2, the police officer, and RN, his brother, from the compound and broke-in.
[45] The Magistrate dismissed these possibilities not by turning her mind to them or giving them consideration but by ruling any alternative out as ‘fanciful’. This assessment was made without adversion to what any such possibility might be. It was also made without the Magistrate’s giving herself a Turnbull warning.
[46] The continual putting of Mr. Lalagavesi at the scene of the temple break-in, despite his never having been identified there, nor even identified as Mr. Lalagavesi at the housebreaking, is characteristic of this case from the outset. At the bail application on 20 October 2006 the Magistrate’s Court notes record the prosecution as saying:
Strongly object bail. Very common in Fiji for temples to be broken into and accused not caught. Accused was chased by police officers from scene and caught ... (Emphasis added): Ct Record at 17
[47] Mr. Lalagavesi was never ‘chased from the scene’ – whether ‘the scene’ was the temple (unknown at that time to have been broken into and possibly not having been broken into at that time), or the neighbour’s house.
[48] The chase began not ‘at the scene’ but ‘across the road’ – commencing:
[49] The trial took place on 1 February 2007, with three witnesses called by the prosecution: PW1, PW2 and PW3 (a police officer who became involved on or about 19 October 2006 but who, in any event, was not involved in the chase, nor was ‘at the scene’ on the day of the offence – namely 16 October 2006). PW2’s brother RN did not give evidence.
[50] In evidence in chief, identification evidence provide by PW1 was as follows:
... 12/10/2006 I was asleep in my room. I heard noise and I woke up. I saw from my window one Fijian man wearing a pompom hat on his head, a T-shirt and ¾ pants.
The man was trying to remove the shutters from my neighbour’s house. Six meters away. It is a separate house.
This man is the accused. (in dock)
He removed the shutters and then he removed the window.
I opened my house door then I called my neighbour and the man saw me and ran away. I saw my neighbour and the neighbour saw the man too: Ct Record at 22
[51] We interpose at this point to observe that it is not PW2’s evidence (’my neighbour’, ‘the neighbour’) that he saw the man at this time. PW2’s evidence is that he saw a man running across the road and commenced chasing him. Further, PW1’s evidence here conflicts with PW1’s own evidence in cross-examination, when PW1 asserts that he ‘saw your face clearly two or three times’ ‘when I was sitting on my bed’: Ct Record at 23
[52] PW1’s evidence continues:
Then three of us chased him. [PW2] and [his] brother – [RN] and I was the third.
We chased accused to Chan Mani Road, then he tried to cross a private compound and then he ran back to Chan Mani Road, then to Oriana Place, he went in the drain and one of the police officers followed him i.e. [PW2].
I and [PW2] blocked the other end and we surrounded accused.
Accused went into a compound, jumped the fence and ran away then he disappeared.
[PW2] said he identified accused when he was inside the fence we saw his face.
I came home and saw all the things inside the temple were misplaced ... Ct Record at 23
[53] We again interpose to note further inconsistency in PW1’s evidence at this point. In regard to the following of Mr. Lalagavesi into the drain, and the blocking of the other end and surrounding of Mr. Lalagavesi, PW1 refers to PW2 both times – that is, according to PW1’s evidence, PW2 is the police officer who followed the man being chased, into the drain: ‘he went in the drain and one of the police officers followed him i.e [PW2]’. PW1 then says ‘I and PW2’ ‘blocked the other end and ... surrounded the accused’. Can PW2 be both ‘following him (the party chased)’ and ‘blocking the other end’?
[54] On the photographic identification of Mr Lalagavesi, in cross-examination PW1 says:
Police showed me about 50 photos. I recognized his face from seeing him inside the fence. I just identified accused by the photographs.
...: Ct Record at 23
[55] We note that PW1 does not say he ‘recognized’ Mr. Lalagavesi from (say) the chase across the road, at the Chand Mani shop, or – more importantly – from ‘seeing him’ (as ‘one Fijian man’) attempting the housebreak. The association between Mr. Lalagavesi’s photograph and Mr. Lalagavesi seen in person is in respect of seeing Mr. Lalagavesi in the field – ‘inside the fence’. Identification at this point is not connected to a crime or attempted crime, but to a chase.
[56] PW1 then gives an ‘identification’ he has not given in evidence in chief and which appears to be entirely new:
I saw my neighbour walking around and when you saw him you sat down facing me?
How did you recognise me so far away and wearing a pompom?
When I was sitting on my bed, I saw your face clearly two or three times: Ct Record at 23
[57] This was not given in evidence in chief and there is no previous or other reference to PW1’s having seen Mr. Lalagavesi
or identified him at this point – that is, while PW1 was ‘sitting on his bed’ – when (it is understood) he
saw ‘one Fijian man’. Never before has he said he ‘saw [this person’s] face clearly two or three times’,
much less that it was Mr. Lalagavesi’s face he saw. This may be the or a reason for the Magistrate’s having decided not
to rely upon PW’s evidence of identification.
[58] A similar disjunction appears in the ‘identification’ evidence of PW2, as given in evidence in chief and in cross-examination
(see later).
[59] Continuing in cross-examination, PW1 then reverts to his original evidence in response to Mr. Lalagavesi’s question:
How can you identify me in a photo without a pompom. When we were running after you and you were inside the fence we saw your face clearly. (Emphasis added) Ct Record at 23
[60] PW2’s evidence of identification began with his confirmation that his neighbours include PW1 and others, and continues:
12/10/06. I was at home in the morning.
While I was sleeping, my brother woke me up and said someone is at the neighbour’s house doing a break-in.
I woke up and came outside and by then the culprit had left the house. (Emphasis added) Ct Record at 25
[61] That is, PW2 never identified ‘one Fijian man’ at the house, much less the temple, and much less Mr. Lalagavesi.
Relevantly at this point PW2 acknowledges the lapse in time taken to wake up and come outside. Should this raise a question in the
Magistrate’s Court’s mind as to why, in light of the delay and the disappearance of the person sighted attempting the
break-in, if Mr. Lalagavesi were the ‘on Fijian man’ he is still to be seen ‘running across the road’ rather than having disappeared entirely? Being detected in an act of criminality
or attempted criminality should surely render the culprit fleet of foot rather than leaving them to be sighted minutes later ‘running
across the road’? Mr. Lalagavesi lived only some ten minutes away. How many minutes did it take for PW1 to raise his neighbour
(RN), for RN to wake PW2, for PW2 to get up, come out, confer – ‘he was there’, ‘he went that way’,
‘he must have turned down ...’ ‘gone around ...’ - then start looking for the suspect?
[62] PW2 continues his evidence in chief:
I then came on the main road and saw a Fijian boy wearing black jacket, pompom and ¾ shorts running across the road.
I followed the boy and gave chase. We went to shop at Chand Mani, then we were face to face. He then turned back and ran to Field 40. At Field 40 Junction we were again face to face and he was surrounded by some other people including [KS]. Then accused jumped into a compound at Field 40 and I followed him. He picked up some empty beer bottles and he jumped the other side. I followed him across the road and then I lost track of him.
I identified him – first time and second time we were face to face. (Emphasis added) Ct Record at 25
[63] PW2’s evidence crystallizes:
I know his name, Saula Lalagavesi. I know him because he used to come to Police Station for many cases, also he did Extramural Prisoner at Police Station. I talked to him at Police Station – used to greet each other when we met.
After that I then came reported to Police and I told them the name of the suspect. Accused is present in court. Identifies accused in dock: Ct Record at 25
[64] In cross-examination, amongst other questions and answers, on the matter of identification PW2 answered as follows:
What time were you woken? c.c. 5.45am, not sure, because I didn’t take a watch.
In your statement you say 6am? I will recall exact time.
Your brother [RN] who woke you up? [RN]
...
Did you see me break into the temple? No ...
Was an identification parade conducted? No, because I know you very well. And I will be giving evidence in court.
Investigation Officer asked accused regarding identification parade, but I said I would be identifying him and he said that’s ok.
...
12/10/06 – your statement.
Doesn’t mention temple? I only knew [J’s] house was broken into. Later I found out temple was broken into.
Fijian man with pompom – how do you know it was me? I know accused very well and we were twice face to face. I saw the black spot on the left side of his face.
[Court: Note accused has a black spot/mole on his left check.]: Ct Record at 26
[65] Here, we note – as we consider the Magistrate ought to have noted at the trial - that the mole (or birth mark – see Mr. Lalagavesi’s evidence, Ct Record at 31) is identified when PW2 is ‘face to face’ with Mr. Lalagavesi – never at any time directly associated with the break-in at the temple or the attempted break-in of the neighbour’s house. Yet again, the elision occurs – as if identification of Mr. Lalagavesi through ‘his mole’ puts him at the scene of the crime or attempted crime, or somehow supports an inference that he was there.
[66] The cross-examination evidence from PW2 continues:
You didn’t say ‘black spot’ in your statement? If I had not known his name and known him well, then I would have given an accurate description but I knew him well ...
Did you see me break into the temple? No.
...
Why did you say I did it? You were running away and I chased you ... Twice I came face to face with you. One time I went around the house and came face to face with you and the second time when you had to cross the drain at Field 40 ...
What time? I can’t say time. It was daylight, after 6 when we gave chase ...: Ct Record at 26-27
[67] It is here that PW2 makes a statement as to identification that has never appeared in evidence previously: ‘One time I went around the house and came face to face with you ...’ Compounding this is the immediately following clause ‘and the second time when you had to cross the drain at Field 40 ...’
[68] True it is that PW2’s evidence previously has been that the second time he saw Mr. Lalagavesi ‘face to face’ was at the field. However, all PW2’s evidence up to now has been that the first time he saw Mr. Lalagavesi ‘face to face’ in the chase was at the Chand Mani shop – never ‘around the house’.
[69] As to time, the statement: ‘It was daylight, after 6 when we gave chase’ provides the Court with three different times given by PW2 – 6am in his statement, 5.45am in cross-examination: Ct Record at 26; then later in cross-examination, ‘after 6 when we gave chase’: Ct Record at 27
[70] In re-examination PW2 said he ‘identified accused when I was the courtroom’s width away from him’: Ct Record at 26-27
[71] Identification of Mr. Lalagavesi at that distance may well have been sufficiently close to identify him as Mr. Lalagavesi without quibble. Yet where does this conclusion take the identification issue? What does that identification mean? The aim of the trial is not to prove that Mr. Lalagavesi was ‘in the field’ or ‘at the Chand Mani shops’. It is not even to determine whether Mr. Lalagavesi attempted the break-in of the neighbour’s house (albeit these matters can be relevant as circumstantial evidence – but see our earlier concerns on this aspect). The aim is to determine whether Mr. Lalagavesi broke-in to PW1’s temple.
[72] Not only did PW2 not see anyone – including Mr. Lalagavesi – break into the temple or attempt to break-in to the neighbour’s house, the identification comes in the course of a chase – not at the temple, nor at the house (or ‘around the house’) – but commencing on the main road:
I then came on the main road and saw a Fijian boy wearing black jacket, pompom and ¾ shorts running across the road.
[73] Contrary to PW2’s statement in cross-examination, in his evidence in chief there is no reference to his having seen anyone upon ‘going around the house’. There is no reference to his ‘coming face to face’ with anyone upon ‘going around the house’ – Mr. Lalagavesi or anyone else, even ‘one Fijian boy’.
[74] Rather, after having said he came on the main road to see ‘a Fijian boy ... running across the road’, as earlier noted, PW2 nominated two occasions only upon which he says he identified Mr. Lalagavesi:
I followed the boy and gave chase. We went to shop at Chand Mani, then we were face to face. He then turned back and ran to Field 40. At Field 40 Junction we were we were again face to face and he was surrounded by some other people including [KS]. Then accused jumped into a compound ...
I identified him – first time and second time we were face to face. (Emphasis added) Ct Record at 25
[75] In re-examination PW2 said that he ‘identified accused when I was the courtroom’s width away from him’: Ct Record at 27
[76] PW3’s evidence was that he went to the scene of the temple break in and also recorded the statement of PW1. He said that PW2 ‘told me he saw accused and he chased him. He particularly identified accused ...’: Ct Record at 27
[77] PW3 said that he identified the accused on 19 October 2006: Ct Record at 27 That is, PW3’s identification is not connected with the neighbour’s house, nor the temple, nor indeed even with the chase. It relates solely to the identification of Mr. Lalagavesi as Mr. Lalagavesi – a person with a record, a ‘known offender’ and the person identified by PW2 at a shop and in a field, neither location being temple or neighbour’s house, and by PW1 in the field and in a photograph at the Police Station.
[78] Mr. Lalagavesi elected to give sworn evidence in which he denied the offence: Ct Record at 30
[79] In cross-examination it was said to him that PW2 ‘identified you at [the] scene. Why would he lie? ...’: Ct Record 31
[80] This question lacks foundation entirely. It ought not to have been put. Were Mr. Lalagavesi represented at trial, objection would or should have been taken. PW2 did not ‘identify’ Mr. Lalagavesi ‘at the scene’. As with earlier evidence, an elision occurs: the idea that identification has taken place ‘at the scene’ of the temple break-in, because it has taken place elsewhere; or that the identification at the shop and in the field is the same as or constitutes identification at the scene of the break-in. This is not so. This is not even an improper inference. It is an assertion made without a basis. It is unsustainable, highlighting the need to take into account the ‘circumstances’ of identification as cautioned in Turnbull’s case..
[81] The submissions made by the prosecution confirm yet again the need for caution:
Accused charged with sacrilege.
Temple was broken into. $8 cash taken. Straight after that house next door attempted break-in, [chased] by [PW1] and PW2 across three streets position identified by a police officer who knows accused very well through extra-mural prisoner at police station. Three months at Police Station.
Accused stays just a 10 minutes walk to crime scene: Court Record at 32
[82] As noted earlier, why, then, if Mr. Lalagavesi was indeed the person attempting the break-in at the neighbour’s house, was he still ‘running across the road’ - after the time it must have taken for PW1 to alert his neighbour PW2 and PW2’s brother RN, for PW2 to waken, dress? get up, come outside, confer and then go out of the compound to the road?
[83] The link is made between the chase and the attempted break-in, as if they are precisely contiguous: the chase without question being of the person attempting the break-in, from the point of the attempted break-in.
[84] Further, the prosecution’s submission that the temple was broken before the attempted housebreaking is on no more than assumption. As earlier observed, the temple was secured the afternoon before – without oversight until PW1 returned from the chase. Fair enough it is to make the inference, but that it is inference must be stated, its basis spelled out. Blunt assertion is misleading.
[85] The prosecution’s submissions continue:
Early morning he says he was home with his brother. Brother says he did not see him that morning.
Very clear with case.
Police proved case beyond reasonable doubt: Ct Record at 32
[86] If anything were proved beyond reasonable doubt, it was that:
[87] All the above must raise in the eyes of a court the possibility that Mr. Lalagavesi’s identification:
is not only not based upon direct evidence, but cannot be based upon inferences properly drawn. Rather, the identification rests upon an inference wrongly drawn, namely that as Mr. Lalagavesi is a known offender, and he was seen (first identification as Mr. Lalagavesi) at a nearby shop, running when chased by three men including a police officer, he must have been the offender.
[88] As to the running, even then, when Mr. Lalagavesi ‘runs’, he stops in the field to pick up two beer bottles – presumably for their recovery or exchange value. If a person who is a ‘known offender’ finds himself being chased by three men, including a police officer, his running may be understood whether having committed an offence or not. Yet had he committed an offence is it likely he would, whilst running to escape capture vis-à-vis that offence, pause to collect beer bottles - particularly when alleged to have had in his possession $8.00 stolen from the temple? There was no suggestion at any time by the prosecution or prosecution witnesses that Mr. Lalagavesi was picking up beer bottles for a defensive or offensive ploy. He was never questioned to this effect and the Magistrate made no such comment as indeed no comment of this nature could or should have been made.
[89] Mr. Lalagavesi’s being identified as a ‘known offender’ is intimately linked with:
[90] In her ruling, the Magistrate effectively accepted that:
was sufficient upon which to draw the inference that Mr Lalagavesi was both the attempted housebreaker and the party who committed the temple sacrilege.
[91] Had her mind adverted to the Turnbull principle, the danger inherent in this pattern of thinking may have been, and should have been, exposed.
TRIAL EVIDENCE AND TURNBULL’S CASE
[92] In Semisi Wainiqolo the Court of Appeal described the judge’s direction to the assessors as ‘careful and extensive’, given ‘clearly [with the] guidelines in [Turnbull] in mind’: at 3
[93] The judge’s direction in Semisi Wainiqolo bears repeating in full:
This is a case where the State relies upon the accuracy of an identification of the accused and the defence contends she is mistaken. Where that is so, I should warn you of the special need for care before relying on the identification evidence alone as the basis for a conviction. The reason for that is that experience has shown that it is quite possible for a perfectly honest witness to be mistaken about identification. An honest witness who is convinced of the accuracy of what he or she says may well come across as convincing but may still be mistaken.
Bear in mind that we all make mistakes in thinking that we recognise people even those we know well. That is not to say that you cannot rely on identification evidence. Of course you may, but you need to be careful in deciding whether the evidence is good enough to be relied upon.
Can I suggest that you think about the circumstances under which this witness saw the accused at the time in question. How long did the witness have the accused under observation? What sort of distance were they away from each other? What was the lighting like? Had the identification witness ever seen the accused before? Did the identification witness know the accused and, if so, how well? Was there anything about the situation which would cause the identification witness to take particular note?
Think about these sorts of issues carefully to see if you can rely upon the evidence of identification given by the first prosecution witness: at 4
[94] The Court of Appeal dismissed the appeal in Semisi Wainiquolo both in regard to conviction and to sentence. Insofar as identification evidence was in issue, the Court found wholly against the accused’s grounds of appeal. The facts in Semisi Wainiquolo are important, and worth recounting in the context of the present case, for they are so disparate from what the Magistrate’s Court had before it in Mr. Lalagavesi’s trial. The distinction is important.
[95] As set out by the trial Judge in the context of Turnbull’s case, the facts in Semisi Wainiquolo were:
The [witness] can only have caught a quick glimpse pf the robber who took off his balaclava in the process of searching for something inside the vehicle. They were clearly quite close to each other; at the most according to [the cousin] some one metre away. It was a bright morning so there was good lighting but her view of the robber would have been impeded by the car structures, the roof, the door jamb, etc. She was in fear.
The witness was, it seems, a distant relative of the accused. They grew up in the same village. She knew him by sight but not really to speak with. It will be a matter for you to determine just how well she knew the accused prior to this incident. Take into account that prior to the incident she says she hadn’t seen him for a long time but did recently catch sight of him sometime in December 2004 or January 2005 ...
Against these matters you must weigh the warning that I earlier gave you about the possibility of identification witnesses being perfectly honest and convinced of the accuracy but nonetheless mistaken: at 4
[96] The Court of Appeal saw this recitation as a ‘very fair and proper application of the Turnbull guidelines [with] no ground for criticism’: at 4
[97] In Semisi Wainiqolo the identification witness was driving out of her home to bank some $13,000 takings for the New Year period from the nightclub she owned with her husband. Having left the compound, she was waiting for her teenage cousin to close the gate when a vehicle was driven up close to her car, preventing it from being driven further. Four masked men, armed with an axe and cane knives, ran out and up to her car. The car windscreen was smashed with the axe, and one of the men attempted to reach the car keys. In so doing, he removed his balaclava so that the woman was able to see his face. Recognizing him, she said: ‘Semisi, you can’t do this to me. I know you.’ After replying he didn’t know her, he threw the keys back into the car. Rejoining the others, he was heard by her to say: ‘Someone has recognized me’: at 1-2
[98] That is, the identification was ‘on the spot’. It was identification on the scene of the crime. It was an identification where the witness saw the accused face to face in the close vicinity of her car, which was the immediate target of the attack: the takings were under the driver’s seat. The purpose of the attack was to rob the drive by removing the $13,000 takings from the car and hence from her.
[99] In the present case, the identification is remote from the scene of the crime, and the crime is discovered after the identification has taken place. The danger in the present case is that identification of a person who is known to the identifier as a person with a criminal record, and well known at that, when the person’s attachment to the crime is only that they were sighted ‘running across the road’ after another crime had been attempted in a compound proximate to the road. Indeed, their sighting ‘running across the road’ is not the identification sighting.
[100] Rather the first identification sighting occurs even more remotely from the attempted crime of housebreaking – not the crime the subject of the charge. It occurs at a shop away from the compound, away from the house, and away from the temple (Chand Mani). The second identification sighting is even more remote from the first – in a field further away from the scene of what becomes known as the crime after the chase and the identification sightings.
[101] The task then is to return to the questions in Turnbull, and thence to address Lord Widgery’s statement as to the importance of the ‘circumstances in which the identification by each witness came to be made’. All the while, in the addressing of these questions, the circumstances must be central: namely, that the identification is not at the scene of the crime, nor contiguous with it. It is at two locations removed from the scene of the attempted crime, and the scene of the later discovered crime with which the person identified is then charged.
[102] Turnbull: How long did the witness have the accused under observation?
PW2 had the accused under observation on two occasions upon which he identified him as Mr. Lalagavesi – at the Chand Mani shop, and on the compound by the fence.
[103] Turnbull: At what distance?
On each occasion, face to face.
[104] Turnbull: In what light?
According to PW2, in the early morning light at some time shortly after about 5.45am, or shortly after 6am, or sometime after 6am.
[105] Turnbull: Was the observation impeded in any way, as for example by passing traffic or a press of people?
Insofar as the identification at Chand Mani shop, there is no indication of whether or not people were around; as to identification in the field, there were others – people including PW2, PW1 and PW’s brother RN. J, the person whose house PW1 observed as being attempted to be broken into does not appear to have participated in the chase: Ct Record at 25
[106] Turnbull: Had the witness ever seen the accused before?
Evidence of both PW1 and PW2 – Yes.
[107] Turnbull: How often?
PW2 –
On many occasions at the Police Station in the context of his being an offender generally and in the extra mural programme: for example, Ct Record at 25
PW1 (in cross-examination) –
Why did you tell police in your statement that you knew me? I had seen you a lot of times before that day.
Where? Field 40 Junction on the roadside. He was new at Field 40 at the time.
How can you know me, when I don’t know you and I haven’t seen you?
I stay there for fifteen years and I saw you when you came, as a new person to that place.
...
You don’t know me? I know you. I have seen you a lot of times.
You only knew me because [PW2] told you? No: Ct Record at 24-25
PW1 (in re-examination) –
I know accused by face. Sometimes I saw him walking along the road. I don’t know him personally: Ct Record at 26
[108] Turnbull: If only occasionally, had he any special reason for remembering the accused?
Albeit on the evidence of neither was it ‘occasionally’, at least for PW2 there was a ‘special reason for remembering’ Mr. Lalagavesi – that PW2 had seen him at the Police Station generally and in relation to the extra mural programme – that is, as a known offender: Ct Record at 25, 26.
[109] Turnbull: How long elapsed between the original observation and the subsequent identification to the police?
For PW2, this was immediate as PW2 was the police. Further, PW2 reported to the police after the chase: Ct Record 25
For PW1, it appears this occurred much later after the event (12 October 2006) – as it appears a week later:
You didn’t come to the police station to identify me? No, I did come to police station and I did identify you.
They showed me a lot of photos and I pointed out from the photos. A lot of photos were in the police file.
Police showed me about 50 photos. I recognised his face form seeking him inside the fence. I just identified accused by the photographs.
I can’t recall when but maybe one week later.
Why can’t you remember when you looked at the photos? I can’t remember the date. I know his face. I can remember his face. (Emphasis added): Ct Record at 23
[110] Turnbull: Are there any material discrepancies between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance?
There was dispute about the clothing of the upper body. PW1 identified a ‘T-shirt’ initially, whilst PW2 identified a ‘black jacket’. Later, PW1 changed ‘T-shirt’ to ‘black jacket’.
[111] Turnbull: Are there any specific weaknesses appearing in the identification evidence?
The most pronounced problem here lies in the key issue: the danger of identifying someone being a known offender, and linking this person, by reason of that knowledge, back to an offence (and in particular an offence not even known to have been committed at the time of ‘identification’). On PW2’s evidence, there can be little doubt that the person he identified at the Chand Mani shop was Mr. Lalagavesi, nor that the person he identified in the field was Mr. Lalagavesi. Yet how far does that take the Court in the identification of Mr. Lalagavesi as the person who was at the scene of the attempted housebreak – or as the person engaging in the attempted housebreak? How far does it take the Court in the identification of Mr. Lalagavesi as the person who broke into the temple and stole $8.00?
[112] Turnbull: The circumstances in which the identification by each witness came to be made are crucial.
Unlike Samisi Wainiqolo, this was not a case of ‘on the spot’ or ‘at the scene of the crime’ identification. It was a case of identification ‘off the spot’ or ‘away from the scene of the crime’ – some streets or distance away, at least – and identification of a person because the person was a known offender and that he was running. That he was a known offender, combined with his ‘running’, leads to the conclusion that Mr. Lalagavesi is (first) the attempted housebreaker, then (secondly) the desecrator of the temple. In these circumstances, the need for the Magistrate explicitly to warn and guide herself in accordance with Turnbull and Wainiqolo becomes crucial.
[113] Criminal investigators are often warned to avoid fixing upon one line of investigation, at least too early, to the detriment of considering other possibilities. The dangers inherent in identifying a known offender, then inferring that that individual ‘must’ be the person involved in the instant crime, are not inconsequential. Turnbull guards not only against the dangers of identifying and being certain about identification where an individual is seen right at the scene of the crime. It guards against identification away from the scene of the crime and relating that identification back to the crime, because the person identified is already known – particularly as a known offender.
[114] Mr. Lalagavesi suffered from this danger. His trial was rendered unfair, his conviction unsafe, by this danger and its not being addressed by the Magistrate in accordance with Turnbull and Samisi Wainiqolo. In this oversight, the Magistrate erred in law.
[115] In upholding the Magistrate’s decision through not addressing the failure by the Magistrate to warn herself of the danger of relying entirely upon the ‘identification’ evidence of PW2 to convict Mr. Lalagavesi, the High Court erred in law.
DETERMINATION
[116] The appeal is an appeal on a question of law. The Turnbull warning should have been given by the trial Magistrate. Its oversight and omission in the Magistrate’s Court should have led inexorably to Mr. Lalagavesi’s High Court appeal having been allowed.
[117] In its absence, this Court is satisfied that the conviction is unsafe and unsatisfactory. A miscarriage of justice has occurred.
[118] The conviction and sentence must be set aside. The unsatisfactory nature of the evidence means there should be no retrial.
ORDERS
[119] The appeal is allowed.
[120] The conviction and sentence of the Appellant determined by the Magistrates’ Court at Lautoka on 8 February 2007 are quashed.
[121] There shall be no retrial of the Appellant.
Nazhat Shameem
Judge of Appeal
Daniel Goundar
Judge of Appeal
Jocelynne A. Scutt
Judge of Appeal
At Suva
Friday 7th March, 2008
Solicitors:
Legal Aid Commission, Suva for the Appellant
Office of the Director of Public Prosecutions, Suva for the State
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