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Baleasavu v State [2002] FJHC 307; HAA0043.2000 (2 August 2002)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0043/00

IN THE MATTER of an appeal from the Magistrate’s Court of Lautoka. Criminal Case No. 558 of 1999.

BETWEEN:

OSEA BALEASAVU
APPELLANT

AND:

THE STATE
RESPONDENT

Appellant in person [unrepresented]
Ms Fagbenro for the Respondent

Date of Hearing: 31 August 2000
Date of Judgment: 2 August 2002

JUDGMENT

On 13 March 2000 the Appellant was convicted by the Lautoka Magistrate’s Court of a single count of robbery with violence contrary to Section 293 of the Penal Code Cap. 17. He was sentenced to a term of 18 months imprisonment. He appeals against that conviction.

No witness identified him as having been at the scene. Shortly after 10 a.m. on 12 July 1999 Rajendra Prasad who operated a petrol station supermarket at Saweni was robbed of till contents and cigarettes, amounting to approximately $3,500 in value. Four robbers arrived in a white car. Two were masked. One had a screw driver with which he threatened a bowser attendant. One had a cane knife and one a stick. No one was injured, other than the owner who suffered an injured neck when held by the neck and pushed down on the floor.

According the Right to call Witnesses

In his grounds of appeal the appellant stated in a written submission that he had a “witness who can give evidence that my presence in the allegation is false, and that I was not a part of the crime”. In his written application earlier in these proceedings seeking bail he had said his first ground was that the Magistrate had erred in law in not allowing a witness to come and give sworn testimony. He said he had asked the Magistrate to subpoena his witness. He says as a result he was denied a fair trial.

In conducting his defence the Appellant is recorded as saying “I will remain silent. No witness.” This was after the Magistrate had noted “Three options put to Accused.” The Accused is a person who has been up before the courts on numerous occasions. Is there anything here to unsettle confidence in the record? The procedure to be accorded to an Accused will be the same whatever his or her criminal history may have been. All Accused must be accorded the same procedure in order to achieve a fair trial. The court record is to be accepted here when it states the Accused said he was not going to call a witness. He has provided no details to this court of who he was to call as witnesses. He neither made an unsworn statement from the dock nor did he enter the witness box and give sworn evidence. There was therefore no explanation placed before the Magistrate by the Appellant as to how his fingerprints were on the rear left door of the vehicle which was seen at the petrol station when it was used by the robbers. In his caution interview the Appellant had said that on the morning in question he had gone to build a friend’s house at Drasa Vitogo. He denied taking part in the robbery. What was his explanation for his fingerprints being on the car? None was given. He simply denied, in his interview, being in the car. Though the burden of proof did not require the Appellant to prove his alibi there was no innocent explanation put forward for the presence of his fingerprints on the car for the Magistrate to consider in challenge of the prosecution case.

The procedure for ensuring fairness in the calling of witnesses in the defence case where the Accused is not represented has been covered by the Court of Appeal in Sekove Vatuabete v The State (unreported) Court of Appeal Cr. App. No. ABU 0018/1998S; 26 February 1999 at p 11; and in Livai Ratucava v The State (unreported) Lautoka High Court Cr. App. No. HAA0021/00L; 16 January 2001 when I said of the Criminal Procedure Code, at p 5 of the judgment:

“Meanwhile, magistrates should look again at section 211(2) and in trials make a fuller note in the record of how they have dealt with this part of the trial procedure.”

I note that in Sekove’s case (supra) the witness who was required by the Accused had been named by the Accused and in Livai’s case, though there was no obligation to do so, the Accused had elected to give an unsworn statement from the dock. This ground fails.

Fingerprint Evidence

The Appellant complained of the fingerprint evidence. He said the fingerprint uplifted was not photographed so as to give a clear indication as to from which place it had been taken from the the car. The record of the police officer’s evidence at this point read:

“Saw car No. CS090 parked. I examined car. Uplifted fingerprints - from right and left doors. Also from rear left door. This is my lift.

I tender exhibit 1 - one fingerprint.”

By deduction the exhibited fingerprint can be taken to be from the rear left door. However the evidence (or the record) lacked clarity. No statement is made by the witness saying that the lifts from the other two places, the front right and front left doors, were found to be, or not to be, the Appellant’s fingerprints. Nor was there a photograph of the car’s rear left door showing the fingerprint of the Appellant visible on the door. All that was exhibited was a 2" x 4" photograph of the lifted fingerprint. In this case, the only evidence of the Appellant’s involvement in the robbery was that single fingerprint on the car. A photograph showing the fingerprint on the car door would have corroborated the testimony of the police officer who said he had uplifted the fingerprint from the car door. Such a photograph should be standard practice. The evidence of the police officer on this matter was accepted by the Magistrate. That is a finding which I do not find necessary to disturb. Courts may not always be happy to accept such evidence. Some may feel it is insufficient to dispel lingering doubts, particularly where the case rests solely upon the one fingerprint. Better practice in the presentation of the prosecution’s case should see the exhibiting routinely of a photograph showing in such cases the car door with the site of the fingerprint included on it. Such a practice, if followed, would go to make for cogency and quality of evidence in the prosecution’s case. The comparison evidence was however properly presented and no adverse comment can be raised against it; Chappell v DPP (1988) 89 Cr. App. R 82. It has for long been accepted that a prosecution can properly succeed on fingerprint evidence where the fingerprints have been properly identified by an expert, and even where such evidence is the sole evidence of identification: R v Castleton [1909] 3 Cr. App. R 74.

The Hearsay Evidence

The Magistrate said in his judgment that “the car was stolen from Suva”. The evidence for this statement came from a police witness from the Crime Intelligence Branch at Lautoka. DC S. Prasad said:

“Later came to know that vehicle No. was VC582. It was stolen from Suva. The No. CU582 was in boot. When I saw vehicle it was CS090.”

Another police witness PC Maciu said:

“I received information that CV 582 stolen from Knolly Street, Suva. Also that number plate CS090 from Suva stolen.”

There was no admissible evidence that either the car or the number plates were stolen. These facts, if probative of a non-innocent association of the Appellant with the car used in the robbery should have been established by non-hearsay evidence. That evidence could have come from the two car owners, first from the owner of the car involved in the robbery, and second from the owner of the car whose number plate was found in the robbery car. They could have testified that they had not given permission to the Appellant to drive or to use their cars, or to take the number plate. Discounting the hearsay evidence, there remains sufficient and cogent evidence of the Appellant’s presence in the robbery car, a presence which had been denied by the Appellant. The hearsay evidence should not have been adduced. Though this issue therefore is decided in favour of the Appellant, I find there has been no miscarriage of justice by virtue of the remaining admissible evidence, and accordingly I apply the proviso of Section 319 (1) (c) of the Criminal Procedure Code.

The third ground of appeal seems to be that the Magistrate erred in law in convicting the Appellant whilst relying on the statement of a co-Accused who mentioned the Appellant’s name. The Magistrate has nowhere in his judgment referred
to such evidence, neither was there any such evidence adduced by the prosecution. This was a trial of the Appellant alone without any of the other participants in the robbery. This ground fails.

Finally this is another case in which the judgment extends to a mere few lines [9 lines]. This was after a trial of a serious charge where the prosecution had called 6 witnesses and tendered 7 exhibits. The sole issue was identification. The Accused was a person with a long history of appearing in the courts. In Livai Ratucava (supra) at p 7) I had said:

“The present case involved the very serious charge of robbery with violence. The judgment consisting of a mere 8 lines of the record purported to review the witnesses and material evidence in such space. I believe the correct result on the evidence has been arrived at. But it is even more important that the Accused is not given the impression that the Magistrate knows he is a frequent offender, whose trial is a mere time-wasting formality. The issues, not least of identification for an unrepresented Accused, could have been analysed in greater detail and each of the legal ingredients of the two counts dealt with separately and matched with the evidence found to be acceptable. Where an Accused whom the Magistrate knows to be a person of bad character appears in a trial before him or her unrepresented, that bad character is a factor that should place a court on alert in case the investigation authorities have failed to be diligent in their search for sufficient and admissible evidence of the Accused’s guilt in the matter, and instead have relied on his propensity to commit offences of the type charged.”

These observations similarly have bearing on the present case. I would add that even a person who knows he is guilty should still be able to leave court satisfied that he had been found guilty by due process of law, that he had had a fair trial and that his points of challenge had been properly considered.

In the result, the appeal is dismissed and the conviction confirmed.

A.H.C.T. GATES
JUDGE

Solicitor for the Applicant : None
Solicitor for the Respondent : DPP, Lautoka Office