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Qaqanivalu v State [2020] FJCA 142; AAU0092.2016 (21 August 2020)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 0092 of 2016

[In the High Court at Lautoka Case No. HAC 047 of 2014]

BETWEEN:

TEVITA QAQANIVALU

Appellant

AND:

STATE

Respondent

Coram: Prematilaka, JA

Counsel: Appellant in person

Mr. S. Babitu for the Respondent

Date of Hearing: 18 August 2020

Date of Ruling : 21 August 2020

RULING

[1] The appellant had been indicted in the High Court of Suva on two counts of Act with Intent to Cause Grievous Harm [section 255(a)], one count of Aggravated robbery [section 311(1)(a)] and Damage to property [section 369(1)] of the Crimes Act, 2009 committed with 04 others [three of whom are the appellants in AAU0099/2016, AAU 0100/2016 and AAU0067/2017] on 06 April 2014 at Nadi in the Western Division.

[2] The information read as follows.

‘FIRST COUNT
Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to Section 255 (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

PENI YALIBULA, MIKAELE TURAGANIVALU, RUSIATE TEMO ULUIBAU, ULAIASI QALOMAI and TEVITA QAQANIVALU on the 6th day of April 2014 at Nadi in the Western Division, with intent to cause grievous harm to MANI RAM, unlawfully wounded the said MANI RAM by kicking, hitting and striking him in the head with a liquor bottle.

SECOND COUNT
Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to Section 255 (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

PENI YALIBULA, MIKAELE TURAGANIVALU, RUSIATE TEMO ULUIBAU, ULAIASI QALOMAI and TEVITA QAQANIVALU on the 6th day of April 2014 at Nadi in the Western Division, with intent to cause grievous harm to NAUSAD MOHAMMED, unlawfully wounded the said NAUSAD MOHAMMED by kicking, hitting and striking him in the head with a liquor bottle.

THIRD COUNT
Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311 (1) (a) of the Crimes Decree 2009.

Particulars of Offence

PENI YALIBULA, MIKAELE TURAGANIVALU, RUSIATE TEMO ULUIBAU, ULAIASI QALOMAI and TEVITA QAQANIVALU on the 6th day of April 2014 at Nadi in the Western Division, robbedMANI RAMof assorted liquor valued at $3,400.00, assorted cigarettes valued at $1,300.00 and $5,300.00 cash all to the total value of $10,000.00 and immediately before the robbery, force was used on the said MANI RAM.

FORTH COUNT
Statement of Offence

DAMAGING PROPERTY: Contrary to Section 369 (1) of the Crimes Decree 2009.

Particulars of Offence

PENI YALIBULA, MIKAELE TURAGANIVALU, RUSIATE TEMO ULUIBAU, ULAIASI QALOMAI and TEVITA QAQANIVALU on the 6th day of April 2014 at Nadi in the Western Division, willfully and unlawfully damaged assorted liquor valued at $3,200.00, assorted juice valued $580.00, 1 x computer valued at $650.00, dried Kava valued at $220.00 and 1 x cash register valued at $499.00 all to the total value of $6,609.00 the property of MANI RAM.

[3] After trial, the assessors expressed a unanimous opinion of guilty against the appellant on all charges on 06 June 2016. The learned High Court judge in his judgment on 13 June 2016 had agreed with the assessors and convicted the appellant as charged. He had been sentenced on 11 July 2016 to 11 years of imprisonment for all offences (aggregate sentence) with a non-parole period of 08 years.

[4] The appellant being dissatisfied with the conviction had in person submitted a timely application for leave to appeal on 02 August 2016. He had preferred written submission on 21 October 2019. He had added one more ground of appeal and submissions in the document filed on 01 November 2019. The state had filed its submissions on 17 August 2020.

[5] In terms of section 21(1)(b) of the Court of Appeal Act, the appellant could appeal against conviction 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: That I did not receive a fair trial by reason of the failure of the Trial Judge in not dismissing the penal of assessors and ordering a fresh trial when the prosecution led evidence of bad character through P.W D.C 3567 Leone Vurakania that was prejudicial and damaging. This was a serious miscarriage of justice in the circumstances of the case and to me.

Ground 2 & 3: That the Learned Trial Judge erred in law in not withdrawing the CCTV footage from the assessors as its identification evidence was poor. Failure to do so resulted in its prejudicial effects depriving me of the right to a fair trial.

That the Learned Trial Judge erred in law in wrongly admitting an unverified photocopy CCTV footage which was somewhat blurry to convict me. In doing so I was denied a fair trial.

Ground 4: That the Learned Trial Judge erred in law in allowing a dock identification for the first time and in absence of a proper identification parade in doing so, I was denied a fair trial.

Ground 5: That the Learned Trial Judge erred in law in not directing the assessors on standard directions for evidence. Failure to do so resulted in a miscarriage of Justice.

Ground 6: That I was denied a fair trial when prosecution failed to prove beyond reasonable doubt regarding the quality of identification via CCTV footage in the absence of expert evidence. This resulted in a miscarriage of Justice.

Ground 7: That the learned trial judge erred in law when he failed to give any directions on law regarding inconsistencies in evidence led in the trial thus the assessors were denied an opportunity to assess the credibility of the witnesses, giving rise to a prejudicial and substantial miscarriage of justice.’

[7] The prosecution evidence of the case as summarised by the learned High Court judge in the sentence order is as follows.

‘[3] The Complainant, Mr. Mani Ram, had been running a shop in Matintar, Nadi, for the past 40 years. To cater to customers who enjoy the night life in the Airport City of Nadi, he kept his shop open till late night in the company of his security guard, Mr. Naushad. Five accused came in a mini-van, got off near the shop and started drinking alcohol. Around 3 a.m., they came to the counter of the complainant’s shop in the guise of customers and tried to forcibly enter the shop through the opening at the counter. Failing of which they broke off the rear door and entered the shop forcibly. They went on rampage in the shop completely disregarding personal and property rights of the shop keepers. They wounded the complainant and his security guard kicking, hitting and striking brutally with bottles, and destroyed the property. They robbed valuable goods and cash. 1^st accused was apprehended red handed by members of the public while others fled with the loot. The entire ‘horrific drama’ lasted nearly for eight minutes was being secretly recorded by six surveillance cameras installed in the shop. The CCTV footages obtained from cameras helped the police to identify the culprits who were later apprehended. 1^st accused made a confession to police. Other accused were positively identified by the prosecution witnesses. The CCTV footage displayed during trial showed a systematic and coordinated brutal attack on the victims and their property.’

01^st ground of appeal

[8] The appellant first ground of appeal relates to ‘bad character evidence’ led by the prosecution and the failure of the trial judge to dismiss the assessors and ordering a new trial. The evidence of the alleged bad character had been elicited from witness DC 3567 Leone Vurakania by the prosecution and the appellant. The trial judge had referred to his evidence in the summing-up as follows and the objectionable pieces of evidence are found in paragraphs 90, 93, 94 and 96.

88. ‘DC. Leone was attached to the CID Branch of the Nadi Police Station with 11^th years’ experience in the Fiji Police Force. On the 25^th of May 2014, when he was stationed at the Nadi Police station, the investigation officer of this robbery Cpl. Anil showed him the CCTV footage of the robbery. He identified Tevita Qaqanivalu as one of the 6 robbers involved in the robbery at the Daily Shop in two scenes. He described how he recognised Tevita. He recognised the tattoo, the marijuana leaf, on the left cuff muscle, the distinguished way he walks and the colour of his fair skin as a Tongan descendent.
    
89. When the CCTV footage was being shown to you Leone explained how he recognised Tevita and described him as the person who was wearing a yellow cap, long sleeved shirt as he entered the shop and assisting one of his co-accused being lifting up to the counter and also as the person who was running outside with the cash register.
    
90. DC Leone described how he came to know Mr. Tevita in 2009. When he was serving in the southern division in Samabula, he first encountered Mr. Tevita and, on number of occasions thereafter, they had encountered each other in the Court house in Suva.
    
91. He said he knew Mr. Tevita personally and described his personal details like his origin, his place of residence.
    
92. Mr. Tevita appearing in person cross examined the witness. Under cross examination witness said that he was at Samabula Police station from 2005 until he was transferred to Nadi Police station on 13^th February 2014.
93. Tevita was also known as ‘Boat’ and he encountered him for the first time when he arrested him in 2009. Last time he had seen him before he watched the CCTV footage was in 2013 in Suva at the Magistrate Court # 2. During the robbery took place he was in Suva attending Court. When he returned to Nadi he watched the CCTV footage on the 25^th of May, 2014.
    
    94. When Mr. Tevita suggested that he was a serving prisoner in 2013 and that he had no case in Suva, witness said that he saw him attending Court sessions in Suva. Witness said that he made a statement on the same day as he watched the the CCTV footage on 25^th May, 2014. He made a second statement on 2.9.2015 since the statement made on the 25^th May had gone missing.
        
95. Witness later admitted that he was part of the interview of Ulaiasi Qalomai the 4^th accused when he returned from Suva. But he was not aware if Mr. Tevita was arrested and later released after questioning.
    
96. Witness admitted that he knew Mr. Tevita as a suspect when he was arrested once by the Samabula Police Station. Investigation officer stated that one of the robbers was ‘Boat’ and asked him to watch the CCTV footage because of his experience in Suva and wanted him to verify whether he could recognise the person. He then watched the CCTV footage and recognised Mr. Tevita in the footage. He admitted that he did not mention about the tattoo on the left cuff muscle in the statement he made after watching the CCTV footage. He agreed that something seen at a crime scene with natural eyes cannot be caught clearly by watching a CCTV footage. He did not agreed that the CCTV footage was blurry.’
    

[9] Obviously, there had been some evidence of what could be considered as bad character evidence in examination-in-chief and cross-examination by the appellant. The state submits that such evidence was necessary to explain the witness’s acquaintance with the appellant to lend credence to his identification of the appellant by watching CCTV footage but concedes that the trial judge had failed to caution the assessors of how they should deal with the bad character evidence.

[10] In Mohan v State [2015] FJCA 155; AAU103.2011 (3 December 2015) the Court of Appeal considered a similar complaint where bad character evidence had crept in through the cautioned interview and remarked:

21. ‘This is evidence of bad character. It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been involved of criminal acts other than those covered by the indictment.
    
22. It is important to stress that since the prosecution relied entirely on the caution interview statement to establish the identity of the appellants it was imperative that no prejudicial material showing a previous bad character of the appellants should have been allowed as evidence. The learned High Court Judge not only failed to address this issue in his summing up but also, failed to disregard this evidence in his judgment. Due to this prejudicial inadmissible evidence of bad character pertaining to both the appellants was included. This has caused a miscarriage of justice in this case.
    
23. However there was ample evidence in this case on all elements of the offence which could have led reasonable assessors to convict the Appellants.
    
24. I hold that although there was a miscarriage of justice by the inclusion of bad character evidence, when considering the totality of the evidence in the case it cannot be considered as a substantial miscarriage of justice. Therefore I hold that this falls within the proviso to Section 23(1)(a) of the Court of Appeal Act. Hence I uphold the conviction.”
    

[11] The Supreme Court in King v State [2019] FJSC 11; CAV0002.2016 (21 May 2019) had affirmed the Court of Appeal decision in Mohan stating inter alia

‘[43] With the material remaining in the document and before the assessors many a judge would direct the assessors that the evidence was irrelevant to their task of deciding on the voluntariness and truthfulness of the confessions, and on whether the Accused were indeed the perpetrators on that night in committing the aggravated robbery.

[44] Other judges might have considered more harm would be done by raising the matter with the assessors. Appellate courts have tended to rely on a judge’s personal assessment as to what is appropriate in an individual case as to how to handle the error. In the circumstances this court should not disturb the decision of the Court of Appeal to apply the proviso.

[12] In the present case there does not appear to have been any other evidence to connect the appellant with the crimes other than the recognition of the appellant done by DC 3567 Leone Vurakania on CCTV footage. The learned trial judge had not mentioned the issue of bad character evidence in the judgment.

[13] Therefore, the question is whether the prejudicial value of bad character evidence of DC 3567 Leone Vurakania outweighs the evidentiary value of his evidence recognizing the appellant on the CCTV footage to the extent of causing a substantial miscarriage of justice or despite the bad character evidence, DC 3567 Leone Vurakania’s evidence recognizing the appellant on the CCTV footage could be independently relied upon to convict the appellant. They are not inseparable; nor are they interdependent. In my view, even totally disregarding the bad character evidence, if DC 3567 Leone Vurakania’s evidence on recognizing the appellant on the CCTV footage had been believed and accepted that would have been sufficient to implicate the appellant. If so, the Court of Appeal would apply the proviso to section 23(1) of the Court of Appeal Act and dismiss the appeal for want of any substantial miscarriage of justice.

[14] Obviously, the assessors had believed and acted upon the recognition evidence of DC 3567 Leone Vurakania. The trial judge in paragraphs 26 – 31 of the judgment had fully considered the evidence of recognition of the appellant on CCTV footage and it is clear that bad character evidence had not played any part at all in his decision to accept DC 3567 Leone Vurakania’s evidence.

26. ‘The 5^th accused was not produced for an identification parade. It is not prudent for police to do so as he was arrested nearly one year after the robbery. Prosecution relied on the CCTV footage and DC. Leone’s evidence to establish his participation in the crime. I warned the assessors about danger of convicting the accused if they are not sure about his identity.
    
27. The CCTV footage that was shown to the assessors was not crystal clear, not clear enough to recognise at the first glance the face of the person whom DC Leone described as the 5^th accused. However, the body language, the distinguished way he walked and the complexion of the skin were clearly visible. DC Leone described how he recognized the 5^th accused whilst watching the footage. Apart from the body language, the distinguished way he walked and the complexion of the skin, a unique mark on his left cuff muscle had helped DC Leone to identify the 5^th accused. He had observed the tattoo of a marijuana leaf on the accused’s left cuff muscle which he was familiar with. He showed the tattoo which was clearly visible in the footageto the assessors as it was being played.
    
28. There can be no doubt that DC Leone was better positioned than assessors to recognize the unique behavioral characteristics of the accused and marks on his body. He denied that the CCTV footage was blurry or of poor quality. He had the advantage of watching the CCTV footage at the police station several times at a closer range. To him, accused was a familiar figure. Witness had known the accused since 2009 when he was arrested by Samabula police station. 5^th accused did not deny when he cross examined DC Leone on the basis that he had met DC Leone as a suspect at the Samabula Police Station. Witness had met the accused several times thereafter at the Suva Court Complex last such meeting being in 2013. As a detective constable he is expected to observe marks found on the body of a suspect and make special note of them.
    
29. Accused was evasive and not prepared to answer when he was cross examined by the prosecutor whether he had such a tattoo on his left cuff muscle. He objected to the question and refused to answer. Although he had nothing to prove in this case he could have created a reasonable doubt in the DC Leone’s evidence if he showed his left cuff muscle to the Court and assessors.
    
30. I invited the assessors in my summing up to compare the person depicted in the video with the accused in the dock. Assessors viewed the video and over the space of a two week trial observed the accused sufficiently to make their own identification. The assessors would have formed their own view on the matter and tested DC. Leone’s recognition evidence by reference to their own perceptions. DC Leone had two undoubted advantage over the assessors. First, of knowing the accused in a more relevant way than available to the assessors simply by watching them in the dock... secondly, officer in fact said that he made his own recognition independently and spontaneously. That certainly was not a possibility open to the assessors.
    
31. At the end of the trial, assessors were satisfied, by watching the CCTV footage for themselves, and evaluating DC Leone’s evidence on it, that Prosecution was able to establish the identity of the 5^th accused. I also watched the CCTV very attentively. I agree with the finding of the assessors.
    

[15] Therefore, it cannot be said that the appellant’s first ground of appeal has a reasonable prospect of success in appeal.

02^nd, 03^rd and 06^th grounds of appeal

[16] The appellant challenges the admissibility of the CCTV footage in evidence on the basis of (i) its ‘poor’ quality, (ii) it being a copy of the footage and (iii) it being led without the evidence of an expert.

[17] The appellant had objected to the CCTV camera footage being shown to the assessors and DC 3567 Leone Vurakania being called as a witness to adduce recognition evidence through the CCTV footage. The trial judge had given a well-considered written ruling on 25 May 2016 and overruled the objections and allowed the prosecution to lead that evidence.

[18] I find that the trial judge had conscientiously addressed the appellant’s objection in the ruling and dealt with the issue of admissibility and usefully cited ATTORNEY-GENERAL's REFERENCE NO 2 OF 2002 [2003] Crim LR 192, [2003] 1 Cr App Rep 21, [2003] 1 Cr App R 21, [2002] EWCA Crim 2373 & http://www.bailii.org/ew/cases/EWCA/Crim/2002/2373.

[19] In the above case the defendants had been seen on video. The prosecution had sought to admit, in addition to the video evidence itself, evidence from police officers as to the identity of persons claimed to be shown on the tape. The officers’ evidence was offered but not accepted as expert evidence. The defendant said that the tapes should have been left to speak for themselves. Lord Justice Rose, Mr. Justice Pitchers and Mr. Justice Treacy of the England and Wales Court of Appeal (Criminal Division) having examined several previous decisions held that the officers’ evidence should have been accepted. It was held that photographic evidence could be admitted in four situations (i) where the image itself was sufficiently clear to allow the jury to make its own direct comparison (ii) where the witness himself knew the defendant (iii) where the witness had spent sufficient time examining images from the scene to have acquired special knowledge, and (iv) where an expert with facial mapping skills could use the skills to assist the identification. The officers’ evidence could have been admitted. The court declared:

‘In our judgment, on the authorities, there are, as it seems to us (at least four circumstances in which, subject to the judicial discretion to exclude, evidence is admissible to show and, subject to appropriate directions in the summing-up) a jury can be invited to conclude, that the defendant committed the offence on the basis of a photographic image from the scene of the crime:

(i) where the photographic image is sufficiently clear, the jury can compare it with the defendant sitting in the dock (Dodson & Williams);

(ii) where a witness knows the defendant sufficiently well to recognise him as the offender depicted in the photographic image, he can give evidence of this (Fowden& White[1982] Crim LR 588,Kajalave v Noble75 Cr App R 149, Grimer[1982] Crim LR 674, Caldwell & Dixon and Blenkinsop99 Cr App R(S) 73); and this may be so even if the photographic image is no longer available for the jury (Taylor v The Chief Constable of Chester);

(iii) where a witness who does not know the defendant spends substantial time viewing and analysing photographic images from the scene, thereby acquiring special knowledge which the jury does not have, he can give evidence of identification based on a comparison between those images and a reasonably contemporary photograph of the defendant, provided that the images and the photograph are available to the jury (Clare & Peach);

(iv) a suitably qualified expert with facial mapping skills can give opinion evidence of identification based on a comparison between images from the scene, (whether expertly enhanced or not and a reasonably contemporary photograph of the defendant, provided the images and the photograph are available for the jury (Stockwell 97 Cr App R 260, Clarke [1995] 2 Cr App R 425 and Hookway.’

[20] Having allowed the evidence of CCTV footage and DC 3567 Leone Vurakania, the trial judge had addressed as to how one copy of the DVD out of 06 copies made containing the CCTV footage came to be marked in evidence in paragraphs 41-46 of the summing-up.

41. ‘Mr. Reddy had been working for Daily Shop located at Lot. 1 Martintar, Nadi for four years. On 6^th of April 2014, there was a break in at the shop. He watched, on following day, 7^th of April, the CCTV footages taken from eight surveillance cameras installed at different places of the shop the. Cameras had recorded the break in. He made soft copy from the Digital Video Recorder (DVR) using a Universal Serial Bus(USB), burnt into six Digital Versatile Disc(DVD)s. All DVD copies were given to police between 7^th and 9^th of April 2014 once made. One copy was tendered in evidence marked as PE.1. He identified the DVD by the writing that belongs to his brother in law Nishal Ram.
    
42. He played in Court different video files stored under each channel. Whilst watching, he pointed out his father- in- law, the shop owner, Mr. Mani Ram and the security personnel Mr. Naushad.
    
43. Under cross examination, he recalled giving a statement to the Police on the 9^th of April 2014. The USB copy was given to Police officers on the 6^th of April. Police had seen the footage the same day that is on the 6^th of April.
    
44. He denied having made any alterations to the DVDs except the transfer before they were given to police on the 8^th. He confirmed that the original saved in the hard drive from the DVR was still intact in the laptop and was in his possession though it was not tendered in evidence. He agreed that the video displayed in court was rather blurry and the faces of those that was shown is not that clear.
    
45. He did not write his name on the DVD because his writing was not that good.
    
46. He just converted using an available software. Answering the a question asked by court, he said that the original footages saved in the hard drive is available in his laptop to be watched. Police offices watched the original DVR video before he made copies and the original version saved in the USB was given to police officers during investigations. He was not an expert in converting and burning DVDs but had experience. Downloading of the footages was done in the presence of police officer. The first downloading of the USB took place in the daytime in the day the 6^th of April and later on he made DVDs at 10 p.m.
    

[21] In the judgment, the trial judge had given his mind to the appellant’s objection to the CCTV footage being shown to the assessors on the basis that it was not clear enough to identify the people depicted therein and DC 3567 Leone Vurakania was not present at the scene of the offence in paragraphs 6, 7, 26-31 and 33. The judge had said

‘6. ‘Four eye witnesses were called by the Prosecution. In addition to that, a CCTV footage obtained from eight surveillance cameras that had been installed at the crime scene was also relied upon by the Prosecution to prove the identity of the accused. It is the Prosecution’s case that accused were the people to be seen in the film. The quality of the film was not of the best. I cautioned the assessors in line with Turnbull rules of identification.

7. Mani Ram and Nausad were inside the shop at the time of the robbery. They said that they clearly identified the 3^rd and 2^nd accused respectively. Jone Toga who happened to be at the crime scene and received injuries in the incident said that he identified the 1^st and 4^th accused. DC Leone said that he identified the 5^th accused while watching the CCTV footage. Defence rigorously contested the identification evidence.’
   

33. I find DC Leone to be a truthful witness and he had positively identified the 5^th accused on the CCTV footage.’

[22] The judge’s directions on identification and Turnbull are found in paragraphs 25- 29 of the summing-up.

[23] Therefore, these grounds of appeal have no reasonable prospect of success in appeal.

04^th ground of appeal

[24] The appellant contests the dock identification for the first time in the absence of an identification parade by witness Mani Ram and refers to paragraph 34 and 35 of the summing-up.

‘34. ‘Before leaving this topic of identification I should say something about Mr. Mani Ram’s evidence in respect of identification of 1^st, 2^nd and 5^th accused in court. He did not attend an identification parade to identify those accused before coming to court although he said all of them were there at the time of the robbery.

35. Identification of the accused in the dock is notoriously suspicious, particularly when there has been no other identification since the time of the incident. You see, a witness coming into court is expecting to confront the offender. He or she knows that a person has been charged with the offence and there would be a natural tendency in those circumstances to assume that the accused in court must be the offender. He has a special place in the courtroom and is easily identifiable. He is not selected out from a group of people and there is a danger that he may be identified because he is the person in court that the witness assumes must be the offender that the witness saw on the earlier occasion.
    

[25] While DC Leone’s identification cannot be treated as first time dock identification as the appellant was known to him and he identified the appellant while committing the crimes from the CCTV footage, the trial judge had clearly warned of Mr. Mani Ram’s evidence as the appellant was not present at the identification parade having been arrested one year after the robbery.

[26] The tests were formulated in Naicker v State CAV0019 of 2018: 1 November 2018 [2018] FJSC 24, Saukelea v State [2018] FJCA 204; AAU0076.2015 (29 November 2018) and Korodrau v State [2019] FJCA 193; AAU090.2014 (3 October 2019) on first time dock identification directions. In Korodrau it was held as follows.

‘[35] However, the Supreme Court in Naicker went on to state in paragraph 38 that the critical question is whether ignoring the dock identifications of the appellant, there was sufficient evidence, though of a circumstantial nature, on which the assessors could express the opinion that he was guilty, and on which the judge could find him guilty and answered the question in the affirmative. Going further, the Supreme Court formulated a test to be applied when dock identification evidence had been led and no warning had been given by the trial Judge. The test to be applied is found in the following paragraph.

‘45. I return to the irregularities in the trial as a result of the dock identifications and the absence of a Turnbull direction. To use the language of the proviso to section 23(1) of the Court of Appeal Act 1949, has a “substantial miscarriage of justice” occurred?.........The question, in my opinion, is whether the judge would have convicted Naicker of murder if there had been no dock identification of him at all by the two witnesses who chased a man with blood on his hands. That is a different question to the one posed in para 38 above, which was whether the judge could have convicted Naicker without the dock identifications. The question now is whether he would have done so. I have concluded that, for the same reasons as I think that the judge could have convicted Naicker without the dock identifications, the judge would have convicted him of murder in their absence. It follows that I would apply the proviso, holding that no substantial miscarriage of justice has occurred despite the irregularities in the trial.’ (Emphasis added)

[36] Thus, the Supreme Court appears to formulate a two tier test. Firstly, ignoring the dock identification of the appellant whether there was sufficient evidence on which the assessors could express the opinion that he was guilty, and on which the judge could find him guilty. Secondly, whether the judge would have convicted the appellant, had there been no dock identification of him. In my view, the first threshold relates to the quantity/sufficiency of the evidence available sans the dock identification and the second threshold is whether the quality/credibility of the available evidence without the dock identification is capable of proving the accused’s identity beyond reasonable doubt. Of course, if the prosecution case fails to overcome the first hurdle the appellate court need not look at the second hurdle. However, if the answers to both questions are in the affirmative, it could be concluded that no substantial miscarriage of justice has occurred as a result of the dock identification evidence and want of warning and the proviso to section 23(1) of the Court of Appeal Act would apply and appeal would be dismissed.

[27] In Vulaca v The State AAU0038 of 2008: 29 August 2011 [2011] FJCA 39, the Court of Appeal did not disapprove of dock identification because (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 identification, nevertheless had gone on to hold that no prejudice had been caused despite lack of Turnbull direction. In fact, there was no need of Turnbull directions on the dock identification of the appellant by DC Leone.

[28] Therefore, applying those tests to the appellant’s complaint on Mr. Mani Ram’s dock identification I am convinced that without the dock identification there was sufficient evidence in the form of CCTV footage and DC Leone’s evidence on identification of the appellant on which not only could the assessors and the trial judge have found him guilty but also they would have done so. Therefore, despite there being no specific warning on the first time dock identification by Mr. Mani Ram, the Court of Appeal would apply the proviso section 23(1) of the Court of Appeal Act and the appeal would be dismissed.

[29] Therefore, there is no reasonable prospect of success in appeal on this ground of appeal.

05^th ground of appeal

[30] The appellant’s complaint here is that the trial judge had allegedly failed to give a standard direction on his alibi evidence. He had not given any notice of alibi and not called the so called alibi witness to give evidence of his presence elsewhere.

[31] The trial judge had directed the assessors on the appellant’s alibi evidence as follows in the summing-up.

‘121. 5^th accused also took up a Defence of alibi. He said that he was with his girlfriend at her house Nadi at the time of the robbery. He did not call his girlfriend as an alibi witness. He had not given prior alibi notice to police to check his alibi. You decide what weight you give to his evidence on alibi. However, you must remember, he has no burden to prove his alibi. Even if you do not believe a single word of his evidence, burden of proof remains with the Prosecution to prove that he was in fact present at the crime scene at the crucial time.

[32] The High Court judge had addressed himself on it in the judgment in the following manner.

‘32. The 5^th accused also took up the defence of alibi. He said that he was with his girlfriend at her house in Nadi at the time of the robbery. He did not call his girlfriend as an alibi witness. He had not given prior alibi notice to police to check his alibi. Although he had no burden to prove his alibi, he failed create any doubt in the prosecution case.

34. I accept the version of the prosecution, and reject that of the Defence. Accused failed to create any doubt in the Prosecution case. Prosecution proved the case beyond reasonable doubt.’

[33] The appellant complains that he had taken up this position in his cautioned interview and therefore it was the duty of the police to investigate into his alibi. However, there is a duty cast by law on an accused who wishes to rely on an alibi defense to file an alibi notice in court. By the evidence of CCTV footage and that of DC Leone the prosecution has disproved his so called alibi. In any event, the following directions to the assessors are quite sufficient to cover his so called alibi defence as well in this situation.

’99. You will generally find that an accused gives an innocent explanation and one of three situations then arises.

(I) You may believe him and if you believe him then you must find him not guilty. He did not commit the offence;

(II) Alternatively without necessarily believing him you may say "well that might be true". If that is so, it means there is a reasonable doubt in your minds and so again you must find him not guilty;

(III) The third possibility is that you reject his evidence as being untrue. If that is so, then he has not discredited the evidence of the prosecution witnesses in any way. If prosecution evidence proves the charge against him then you must convict him. It is for you to evaluate the separate evidence of each accused and decide what reliance you place on it.

[34] Therefore, the typical directions on alibi defence as articulated in Ram v State [2015] FJCA 131; AAU0087.2010 (2 October 2015) and Mateni v State [2020] FJCA 5; AAU061.2014 (27 February 2020) need not have been given in this situation and it has caused no prejudice to the appellant. There is no reasonable prospect of success in appeal on this ground of appeal.

06^th ground of appeal

[35] The appellant alleges that the trial judge had not addressed the assessors on inconsistencies in the prosecution evidence. The complaint of the Appellants is that the High Court judge has failed to direct the assessors on the alleged inconsistencies in accordance with the guidelines stated by the Supreme Court in Swadesh Kumar Singh v The State [2006] FJSC15. However, the appellant has not itemized what these inconsistencies are as he should have done. There is no material inconsistency between DC Leone’s evidence on how he had known him before in his examination in-chief and cross-examination. In Nadim v State [2015] FJCA 130; AAU0080.2011 (2 October 2015) the Court of Appeal set down the law on inconsistencies as follows:

‘[13] Generally speaking, I see no reason as to why similar principles of law and guidelines should not be adopted in respect of omissions as well. Because, be they inconsistencies or omissions both go to the credibility of the witnesses (see R. v O’Neill [1969] Crim. L. R. 260). But, the weight to be attached to any inconsistency or omission depends on the facts and circumstances of each case. No hard and fast rule could be laid down in that regard. The broad guideline is that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance (see Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] AIR 753, 1983 SCR (3) 280).

[36] Therefore, there is no reasonable prospect of success in appeal on this ground of appeal.

[37] In Sahib v State AAU0018u of 87s: 27 November 1992 [1992] FJCA 24 the Court of Appeal said

‘It has been stated many times that the trial Court has the considerable advantage of having seen and heard the witnesses. It was in a better position to assess credibility and weight and we should not lightly interfere. There was undoubtedly evidence before the Court that, if accepted, would support such verdicts.

We are not able to usurp the functions of the lower Court and substitute our own opinion.’

Order

1. Leave to appeal against conviction is refused.

Hon. Mr. Justice C. Prematilaka

JUSTICE OF APPEAL