| Fiji Islands - Vatuabete v The State No. 1 - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. HAA0053 OF 1998
BETW>BETWEEN:
SEKOVE VATUABETE
Appellant
AND:
THE STATE
>Respondent
Mr. A. Counsel for for the Appellant
Ms. E. Kelly Counsel for the Respondent
JUDGMENT
This Appellant appeals against hisiction in the Suva Magistraistrates' Court on 27th April 1998 of Robbery with Violence. His grounds
are that the learned Magistrate:-
(a) Erred in admitting and relying on identification evidence;
(b) Wrongly allowed the spouse of the Appellant to give evidence in a matter in which she was neither competent nor compellable;
(c) Heard the matter too quickly following the Appellant's arrest without allowing him time for legal representation; and
(d) Refused to adjourn for Defence alibi witnesses to be called.
PROSECUTION EVIDENCE
The whole case against the Appellant was that of visual identification by one witness, the complainant taxi driver. At 8.30 p.m. on
4/4/98 a Saturday night he had been hailed by a girl with a man in tow on the road outside the Village 6 Cinema in Suva. The light
there was no different from daylight according to the complainant. The girl got in the front, the man in the back. He was asked to
drive them to Wailoku (which was in fact where the Appellant lived). He drove to Wailoku, passed the bridge, a few yards, then a
left-hand feeder road and then a house. He knew the road very well. He passed the house. The man asked him to stop where there was
no house. He refused, drove on to a round-about, and turned the taxi round. He turned the inside light on. He saw the man. The man
quickly turned off the light. The driver took off. The man pulled the steering wheel. The taxi almost went into the drain. He had
to brake.
The man held the taxi driver by the neck close to his throat and put a knife to his neck at the back. The man said if the driver made
any noise the man would kill him. The man then asked the girl in front to take cash, the taximeter, and the stereo. The girl got
out and ran. The taxi driver noted the man was wearing a yellow T-shirt. He described it as "shining in my eyes"! (The
Investigating Officer later gave evidence the taxi driver had described to him a yellow T-shirt and three-quarter Lee trousers as
being worn by the robber.)
The taxi driver complained to police at Tamavua Police Post. Constable 2367 Eroni from Samabula Police Station went up to Tamavua
Police Post where the taxi driver logged an official complaint. No precise time for this is given but must have been late on Saturday
night 4/4/98.
Constable Eroni was on standby duty to 12 midnight that night. Eroni went with the taxi driver to the scene of the robbery, at Wailoku.
The taxi driver gave a description of the man who had robbed him. However this description was never given in evidence. It was left
unclear by the prosecution whether this was any more than the description of the man's clothing.
The scene now changes to Sunday the 5th of April 1998 when the taxi driver again attended Tamavua Police Post. It is not made clear
why he did so, but the inference is plain that it was not in the company of Constable Eroni, the Investigating Officer. On this occasion
the taxi driver saw who he believed to be the robber from the night before working at Tamavua Police Post, to all intents and purposes
as a Police Officer!
On Monday 6/4/98 the taxi driver then took up with Constable Eroni at Samabula Police Station and reported his find, saying that it
was a Policeman at Tamavua who had robbed him. He and the investigating Officer Eroni then went to Tamavua and the taxi driver pointed
out the Appellant. It turned out to be the Appellant who was working as a civilian at the Police Post.
The Investigating Officer then visited the Appellant's house and spoke to an Ateca McGoon. She told the Police (and subsequently gave
evidence) that she saw the Appellant when he came home on 4/4/98 the night of the offence but they did not speak He was wearing "a
3/4 and a yellow jersey" she said.
The yellow jersey with a green collar, and what was described a 3/4 blue dungarees were both seized by Constable Eroni from the dwelling
house of the Appellant and this Ateca McGoon. This was at some point before 3 p.m. on Monday 6/4/98. The clothing was on the clothes
line and was handed over by Ateca McGoon voluntarily to the police officer. There was no need for a search warrant.
The clothing was then shown to the Appellant by the Investigating Officer in the course of a cautioned interview starting at 3.00
p.m. Monday the 6/4/98. In the interview the Appellant freely admitted wearing that very clothing on Saturday night the 4th April
1998, the night of the robbery, and coming home to Wailoku, while Ateca McGoon, who he described as his wife, was asleep. They did
not speak. No time was ascertained.
HISTORY OF PROCEEDINGS
The Appellant was arrested on the 6/4/98 and put before the Magistrates' Court on the 7/4/98. A date was fixed for hearing 20 days
away on the 27/4/98. He was remanded in custody, reviewed on 15/4/98, and remained in custody until the 27/4/98 when the hearing
proceeded.
Ateca McGoon though described by the Appellant in his cautioned interview as "wife" was called for the Prosecution.
At the end of the prosecution case the Appellant elected to give evidence in which he denied all knowledge of the matter. Then he
was asked for any witnesses. He then purported to adopt the evidence of Ateca McGoon as part of his case and said he had no other
witnesses. He said a person Eddie was at work. He made no request for any adjournment to call the person named Eddie.
Eddie could be identical with the taxi driver referred to in the Appellant's cautioned interview who, he said, drove the Appellant
from Tamavua-I-wai about 9.00 pm and dropped him at Raiders taxi stand. The Appellant then said he got another taxi from Raiders
taxi stand to his home at Wailoku.But he had not proposed to call that other taxi driver.
ARGUMENT FOR APPELLANT
1. INADMISSIBILITY OF SPOUSE'S EVIDENCE
Mr. Gates for the Appellant complained that the learned Magistrate, being put upon notice, as it were, from the material in front of him that there was at least a claim by the Appellant that Ateca McGoon was his wife, should have intervened to stop her giving
evidence, since she was neither a competent nor compellable witness against her husband in law, in this class of case.
The State conceded that if she was the Appellant's wife, she was in law neither competent nor compellable, because these types of
proceedings were not such that she could be called in them against the Appellant.
Strangely, and unsatisfactorily from the point of view of this Court, neither party was in a position to inform the Court whether
Ateca McGoon was in fact lawfully married to the Appellant. A simple search of the register of marriages would have ascertained this.
S.320 of the Criminal Procedure Code provides that necessary additional evidence may be given on appeal.
Mr. Gates submitted it had been, and still was, for the prosecution to qualify their witness. But he said her evidence did not amount to much anyway. The State pointed out that any evidence she gave was replicated in other parts of the evidence. The Appellant
admitted everything that was in her evidence, the State said, so no undue advantage was obtained, if it was inadmissible.
The immunity from giving evidence of course did not operate to prevent police interviewing McGoon and obtaining quite profitable information
from her. Also the obtaining from her of exhibits that might help to convict the Appellant.
DECISION
I am of the view that although the learned Magistrate probably should have intervened to clear the matter up, yet with an unrepresented
prisoner before him he may have preferred not to descend into the arena but to rely on the prosecution knowing what they were doing.
He should be able to do so.
Let this case serve as a warning to all police prosecutors not to call spouses when it is impermissible in law to do so. Magistrates
are to be on alert, also.
The reference to "wife" and "married" may have been polite euphemisms. When called, the witness was only described
as being a domestic, the impression created perhaps being that she was not the wife of the Accused but only a housegirl.
The assertion that McGoon was his wife came only from the Appellant. Other witnesses only echoed what he was asserting. In the circumstances
I do not think any miscarriage of justice occurred in this area particularly when the Appellant even adopted her evidence as part
of his case. She was a competent witness for the defence: sec. 145 Criminal Procedure Code.
2. UNSATISFACTORY EVIDENCE OF IDENTIFICATION
Mr. Gates for the Appellant submitted the learned Magistrate erred in relying on the identification evidence of the taxi driver "when it failed the Turnbull test".
This is a reference to the decision of the English Court of Appeal in Regina v. Turnbull (1977) 1 QB 224. In that case the conviction was upheld on visual identification by a single detective constable who knew the Accused previously.
He was in a moving car looking across the road at night and caught a glimpse of Turnbull as he momentarily turned his head, outside
a Bank he was planning to rob.
The Court held there was more than this fleeting glimpse because another witness at more or less the same time saw a man walking close
to the wall of the bank wearing a three-quarter length coat similar to that Turnbull was subsequently shown to have been wearing
that night. His description otherwise fitted Turnbull.
But it would have been of too poor a quality were it not for the fact that Turnbull and an accomplice were intercepted a few minutes later only a mile or so
from the Bank in a blue van which had been at the back of the Bank. Turnbull had housebreaking instruments in his possession in the
act of throwing them away into roadside bushes, when intercepted.
The Court of Appeal said the correctness of the visual identification was clearly supported by this other evidence. There could be
no real doubt about its accuracy. The verdict of the jury was in no way unsafe or unsatisfactory.
The Court of Appeal said they were only giving guidelines involving practice, not law. The quality of the identification was what mattered in the end, they said. it would be a fetter on the administration of justice to try to define exceptional circumstances
in which the risk of mistaken identification was lessened.
The guideline that was issued was that where the quality of the identification evidence was poor, for example, if it depends on a
fleeting glance or on a longer observation made in difficult conditions, then unless there is other evidence which went to support the correctness of the identification, an acquittal should be directed.
It is interesting to note the Court of Appeal saying that picking out of an alleged offender from an identification parade does not
save the case where there was only a fleeting glimpse.
But they go on further to hold: "in our judgment, odd coincidences can, if unexplained be supporting evidence".
Mr. Gates relied on Turnbull’s case. He said the present was a single witness identification. The suspect got into the back of the taxi. There was no previous description
of him. The Investigating Officer Constable Eroni did not give details of the description given to him by the taxi driver. There
should have been a formal I.D. parade, once it was known that there was a purported identification by the taxi driver at Tamavua
Police Post. It was wrong just to go back there and confront the Appellant. The visual identification was unsafe because there was
nothing to support it. The learned Magistrate referred to Turnbull's case in his judgment but mentioned none of its approaches, and could be argued to have ignored the methods of approach in that case.
The learned Magistrate said "The taxi driver's evidence satisfies me etc". Nowhere does he refer to the Turnbull tests. "Clearly saw the Defendant" is merely a bald assertion. Further on the learned Magistrate said "the taxi driver
clearly remembered facial appearance and clothing he was wearing" but no details are given of that appearance. The yellow T-shirt
is of too common a description.
Mr. Gates further argued the two very weak pieces of evidence, the fleeting glance and the yellow T-shirt, were not enough. He referred
to the various leading cases on identification and submitted that confrontation such as occurred here can only take place if no other
procedure was available. Here he said, if the complainant saw the Appellant by accident there was improper but when he returned with
police it was improper from then on not to hold a formal identification parade.
Ms. Kelly for the State submitted that the case amounted to more than a fleeting glimpse situation. The taxi driver had a view of
the Appellant in light no different from day-light outside the Cinema 6 in Suva. The Appellant was in the taxi all the way to Wailoku.
It would be reasonable to infer the driver had the opportunity to see the passenger during that trip. At Wailoku there was considerable
exchange. There was the incident of the Appellant pulling at the wheel quite apart from the sighting by the taxi driver of the Appellant's
face when the interior light was switched on.
She submitted that the learned Magistrate had directed himself about the dangers of identification evidence. He referred to Turnbull's case and took account of the warnings therein. She submitted he was not in the position of a Jury, but was a legally qualified and
experienced Magistrate. She denied Mr. Gates's criticism that in fact he was merely giving lip service to the warnings in Turnbull's case and did not descend into particulars how he applied Turnbull's case.
(I must say that I agree with Mr. Gates's criticism of the learned Magistrate in this respect. I feel it would be very much to be preferred if the Magistrate as well
as referring to Turnbull's case, descended into particulars as to how the particular case avoided the dangers in Turnbull's case, and gave reasons why the identification evidence complied with the guidelines in Turnbull's case. As I later hold, I have found that notwithstanding this lack of particularity by the learned Magistrate the evidence was such
as to satisfy the guidelines in Turnbull's case.)
Ms Kelly further submitted that the identification evidence provided a safe basis for conviction. P.W.1 had the opportunity to see
the Appellant. Before he turned his inside light on he had dealings with the Appellant which gave him concern and heightened the
need to watch the Appellant. There was identification subsequently at Tamavua Police Post face-to-face.
She further submitted that identification was not made by voice, therefore it was pointless to point out the absence of description
of the suspect's voice. She further submitted that any description of the suspect's companion, the girl, would perhaps have been
inadmissible as the case was against her. Ms Kelly posed the rhetorical question: " How does one describe a face?" It was
not necessary she said, to go through nose mouth and eyes in making a description. She submitted that the incident at the Tamavua Police Post quite accidental sighting re-inforced the complainant identification. He went there and saw what he thought was police officer who had robbed him the previous night. That person must have been indistinguishable from other Police officers
working at that time.
She submitted this was in fact a de facto I. D. parade. She conceded that the quality would be greatly enhanced if the police prosecutor had led' evidence of how many persons
were there, but nevertheless the identification was confirmatory of the previous identification.
She submitted the identification at Tamavua Police Post could not be described as a confrontation. She further submitted that it would
be farcical to have an I.D. parade in the circumstances when the complainant had already picked out the Appellant.
Ms Kelly also submitted there was some suggestion that the first sighting by the complainant of the Appellant at Tamavua Police Post
was somehow contrived or arranged.
She said this was put by the Appellant to P.W.1 at the trial that it was contrived but P.W.1 strongly denied that. The Magistrate
made a specific finding as to that, she said. So it cannot be suggested the first sighting at Tamavua Police Post was tainted in
any way.
She said it was put by Mr. Gates that there was some ambiguity in PW2's evidence on page 10 of the Record:-"I managed to locate
this Accused on the information of the complainant". But she said that had to be read with the next sentence which made it quite
unambiguous that all that happened was that the complainant came to Samabula Police Station and advised the Investigating Officer
that he thought a police officer at Tamavua Police Post was the robber and they then both went up there.
As to the yellow T-shirt, Ms Kelly conceded that without the wife's evidence, (if indeed she was the wife) the evidence is not as
strong but still viable. She noted that the Appellant himself acknowledged the clothing at question 15 of his cautioned interview
(page 19 of the Appeal Record). She submitted the clothing was capable of being one of the "other things" in terms of Turnbull's case.
She submitted this is not "a fleeting glimpse case and nothing more." She said the other "other thing" would be
the circumstance of the identification at Tamavua Police Post which was an impromptu ID parade, and the stronger because of that.
Ms Kelly further submitted that the learned Magistrate had seen the complainant and was impressed by him and she further said nowhere
in Turnbull's case did the Judges say that it is never possible to convict on identification evidence alone. She referred to the All England Report
of Turnbull's case at page 552 J, at the bottom of the page, "a few examples, taken over the whole spectrum of criminal activity will illustrate
what the effects upon the maintenance of law and order would be, if any law were enacted that no person could be convicted on evidence
of visual identification alone".
Mr. Gates argued in reply: What were the circumstances fresh in the complainant's mind? There was no evidence of facial characteristics,
or indeed any characteristics. It was a de facto I.D. parade, but it is not known how it took place. Identification evidence must be of a certain standard to constitute proof. The
Appellant's argument is not that you need other evidence apart from identification. It says that if the I.D. evidence is poor then
you need other evidence, quite a different proposition.
To say "That's him!" is not identification evidence of sufficient quality. It may be this complainant taxi driver has got
his identification correct, Mr. Gates argued, but he has not given any evidence that reassures the Court that it is soundly based.
In that case, it should be rejected.
It is not sufficient for a witness to make the bare assertion that "That is the man." Courts are dissatisfied with that.
There must be foundations.
The Magistrate here was merely convinced that the complainant was convinced. That process is inadequate. It is inadequate because
it is a testimony of the effect on the witness of what he saw, and not of what he saw.
3. FAILURE TO ADJOURN TO ALLOW ALIBI EVIDENCE
Mr. Gates submitted that the Magistrate should have adjourned to allow alibi evidence to be given, and the necessary witness or witnesses
to be subpoenaed. Instead, when the Magistrate found that no witnesses were present for the defence, he merely proceeded to give
his decision. Mr. Gates argued that the Court should have given some assistance to issue subpoenas and get Police to serve the two
taxi drivers concerned.
Allied to the above, Mr. Gates further submitted that the case had been brought on too quickly for hearing, and the Appellant had
been in custody and refused bail without allowing him time to contact a legal representative.
Ms. Kelly on the other hand submitted that facilities existed in the gaol to obtain legal representation and that some 20 days was
ample time to do so.
DECISION
In my view the identification evidence in this case is overwhelming. First, the visual I.D. stems from far more than a fleeting glance.
Nor is it identification evidence from a longer period of observation, but under difficulties. It would have surely begun from at
least the time of the hailing of the taxi, in light no different from day-light, outside Village 6 Cinema in Suva. Then certainly
from the time of the request to stop where there were no houses in Wailoku.
This request by the backseat passenger would surely have engendered watchfulness on the part of the taxi driver, even if he was not
keeping him under surveillance before. The taxi driver then went to a place of comparative safety to turn on his interior light and
no doubt deal with the matter of the fare. The taxi driver would undoubtedly have been taking more than a casual look at the passenger
who had asked him to stop in an isolated place.
Then there was the period of grappling for the wheel while the taxi nearly went into the ditch. The robber's head would surely have
been in close juxtaposition with the taxi driver's during that period, however brief. This is on top of the interlude when the taxi
interior light was switched on and the taxi driver says he clearly saw the robber.
It is surely not to be thought that the taxi driver did not take advantage of these many other opportunities of close quarters observation
of the robber, even conceding that it was at night. In the taxi's journey from outside the Cinema 6 in Suva to Wailoku, it must have
passed many lighted places.
But the determinant of the whole matter, in my view, is the chance meeting between the taxi driver and the robber, who turned out
to be the Appellant, at Tamavua Police Post, the day after the robbery. Though more detail of this encounter could and should have
been given, it operated as a de facto line-up, and turned up a man who indeed had been, on his own admission, out and away from his home on the night of the offence. And
more than that, wearing exactly the same kind of clothes as the taxi driver had described during his complaint to Detective Constable Eroni.
The Appellant was a civilian working in the Tamavua Police Post, which is an extraordinary coincidence. I find absolutely no evidence
that this sighting by the complainant taxi driver was a "put-up job".
In my view, this is too much of an odd coincidence, and. eliminates any chance of the visual identification being mistaken. Many valid
criticisms were ably advanced by Mr. Gates as to how the evidence should have been led better by the Prosecutor, and questioned more
by the learned trial Magistrate. But none of such criticisms can gain-say the cogency of the identification evidence, in my opinion.
It may be valid to say that the learned Magistrate should have given better reasons vis-a-vis Turnbull's case, and I agree he should. And all Magistrates should do so in future cases, but these are counsels of perfection, and do not gain-say,
in my view, the weight of the identification.
In sum, I cannot find the learned Magistrate erred in accepting this identification evidence and convicting the Appellant.
As to the other grounds of failure to adjourn to allow alibi evidence or to allow the Appellant to obtain legal representation, this again is something the learned Magistrate maybe could have done. But it
is, in my view, a matter that has not caused a miscarriage of justice in view of the strength of the identification evidence. In
other words, the learned trial Magistrate would have been bound to come to the same conclusion in any event.
Obviously, also, the taxi driver Eddie was a close personal friend of the Appellant and as to the second taxi-driver the Appellant did not even propose to call him.
All in all, there may have been several technical defects in the learned trial Magistrate's conduct of the trial. But none of them
are in my view of sufficient moment to disturb the verdict in the case, and no miscarriage of justice has occurred in this case because
of them: sec.319(1) proviso (a) of the Criminal Procedure Code.
Accordingly the Appellant's appeal against conviction is dismissed.
K.J. TOWNSLEY
PUISNE JUDGE
15TH JULY 1998
Suva
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