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Matiavi v The State [1990] FJHC 78; Haa0072j.90s (12 December 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 72 OF 1990

Between:

JOAPE MATIAVI
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the Respondent

JUDGMENT

The appellant pleaded not guilty to an offence of House Breaking with Intent to Commit a Felony. He was tried in the Nausori Magistrate Court and was found guilty and sentenced to 12 months imprisonment on the 17th of May, 1990.

He now appeals against his conviction and sentence on two principal grounds of complaint. Firstly, that there had not been a proper identification parade held and secondly, the sentence was harsh and excessive in all the circumstances. Both grounds are opposed by learned State Counsel.

As to the appellant's appeal against conviction the prosecution at the trial led the evidence of the Complainant School Teacher who testified that on the day in question he had locked his house and gone to work at about 7.45 a.m. he returned later that afternoon at about 3.30 p.m. to find a door lock broken and a pair of canvas shoes missing. He was not cross-examined and it is clear that there was no dispute as to the breaking and stealing from his house. The only question about which there was any serious dispute was the identity of the culprit.

To prove this crucial fact the prosecution called the evidence of a Security Officer who testified that whilst patrolling along Valili Street he noticed a group of people enter the compound of the Complainant. He next, saw in particular the accused trying to break the padlock of the house. Immediately he went and phoned the police and returned to the Complainant's house but by then the group had left. When the police arrived he pointed out the house and gave the identity of the accused to them. The accused was subsequently located a month after the incident and on being interviewed admitted his part in the offence.

In his defence the appellant testified that the security officer was not the person who saw him. He states that he did not give his police interview voluntarily and raised for the first time an alibi that he was at home at the time of the incident. He denied any knowledge of the case.

In his judgment the learned trial magistrate summarised the evidence of the prosecution and the accused and states:

"The prosecution has placed before this Court good and sufficient evidences to connect the Accused with the offence. Security Officer Damodar Ram saw the Accused break the padlock. Police Ralulu has stated that the Accused showed the house he broke into. In fact in his evidence he stated he showed the house he broke into. In his statement to the police the Accused had admitted the offence."

Having carefully considered the evidence afresh and mindful that no identification parade was conducted in this case nevertheless this Court is satisfied that there was sufficient evidence to establish that it was the accused who was involved in the offence.

This was a "daylight raid" and any identification would not have been hampered by an absence of sufficient light furthermore the security officer identified the appellant to the investigating officer soon after the incident occurred, and when questioned 6 weeks later the appellant not only recalled his role in the incident, but also named his compatriots. He said nothing about being at home at the time the offence was committed.

The appeal against conviction fails and is dismissed.

As for the sentence the item stolen was a pair of canvas with a nominal value but as State Counsel correctly points out it is not just the value of the items stolen that should determine the length of the sentence in cases of House Breaking.

Nevertheless counsel was unable to assist the court as to why it had taken 8 months from the completion of this investigation till the first laying of charges and final disposal of the matter. Needless to say the appellant complains that "delaying tactics" had resulted in him being remanded for the period.

Needless to say this should have been taken into account by the learned magistrate. He did not and this Court cannot allow this valid grievance of the appellant to continue unabated.

Accordingly the sentence is reduced to 6 months imprisonment with effect from the 17th of May 1990 to be served consecutive to any other sentence that the appellant may have been serving at the time.

(D.V. Fatiaki)
JUDGE

At Suva,
12th December, 1990.

HAA0072J.90S