IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 115 OF 2007

BETWEEN:

LEONE ROKOVAKA
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in Person
Ms L. Lagilevu for the State

Date of Hearing: Tuesday 6th November, 2007
Date of Judgment: Monday 19th November, 2007

JUDGMENT

Introduction

[1]	Following a trial in the Magistrates’ Court, the appellant was convicted of robbery with violence, contrary to section 293(3) of the Penal Code (Cap.17). He was sentenced to 21 months imprisonment. He appeals the conviction and sentence.

[2]	On the early hours of 10th December 2006, the complainant (PW1) walked out of a nightclub to return home. He had about $100.00 in his wallet. As (PW1) walked down the street, two men overpowered him and took his wallet from his pocket. (PW1) called for help. Three police officers who were at the vicinity heard (PW1) and responded. Seeing the officers, the suspects ran off but one of them was apprehended at the next street. The complainant did not sustain any injuries.

[3]	(PW2) said that on 10 December 2006 at about 3.30 pm, he was at Carnavon Street with two other police officers when he witnessed the appellant trying to rob an Indian man. He recognized the appellant because he had known him for 2 years as a street kid. He was about 3 meters away when he witnessed the incident. After a chase, the appellant was arrested.

[4]	(PW3) said he was with (PW2) when he heard the complainant calling for assistance. He was about 10 meters away when he heard the call. As (PW3) approached the complainant, he saw the appellant had his hand in the complainant’s pocket. The complainant was on the ground, facing down. He gave a chase with the other officers and arrested the appellant. Both, (PW2) and (PW3) identified the appellant in Court.

[5]	The caution interview of the appellant was tendered without any objection. In his caution interview, the appellant admitted his presence at the crime scene but denied committing the crime.

[6]	At the trial, the appellant elected not to give evidence. His cross examination of the prosecution witnesses revealed that he was challenging the identification evidence.

Grounds of Appeal

[7]	The issues presented by the appellant can be summarized as follows:

1.	The learned Magistrate should not have allowed the dock identification.

2.	The learned Magistrate failed to apply the Turnbull principles.

3.	The learned Magistrate denied the appellant his right to call witnesses in his defence.

4.	The appellant was prejudiced by lack of legal representation.

5.	The sentence is harsh and excessive.

Identification

[8]	The appellant says that the dock identification should not have been allowed because the police had failed to hold an identification parade. He complains that the learned Magistrate failed to follow the guidelines in the case of R v Turnbull [1977] 63 Criminal Appeal R.132 and that there had been no warning of the dangers of mistaken identification or recognizance.

[9]	Turnbull guidelines have been accepted as the Law in Fiji. The guidelines are contained in the following passage by Widgery LCJ: 

"First, whenever the case against an accused depends wholly or substantially on 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 he 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 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 observation to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? … Finally he should remind the jury of any specific weakness which had appeared in the identification evidence.

Recognition may be more reliable than identification of a stranger but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made." 

[10]	The guidelines in Turnbull are aimed at assessing the quality of the identification. The guidelines are to remove the dangers of mistaken identification or recognizance.

[11]	The Turnbull warning is necessary in cases of recognition (R v Bowden [1993] Crim. LR 379). In R v Thomas [1994] Crim. LR 128, CA, it was held that where there has been some form of recognition, the risk does not lie in the witness picking out the wrong person at an identification parade but in the fact that at the time the person witnessed the offence he was mistaken in his purported recognition of the offender.

[12]	In Wainiqolo v The State, Crim. App. No. AAU0077 of 2006, the Court of Appeal held that an identification parade adds nothing to the accuracy of previous identification of the accused by the witness, where the witness has recognized rather then identified the accused. When recognition evidence is allowed, the reliability of such evidence is a matter for the assessors taking into account the Turnbull guidelines against the circumstances in which the sighting occurred.

[13]	Slightly different considerations apply in cases where the accused admits presence but denies involvement at the scene of an offence.

[14]	In R v Curry and R v Keeble [1983] Crim LR 737, the trial judge had told the jury to be aware of the risk of mistaken identification and to evaluate it, and that the risk would be high where the sighting had only been a fleeting glance, but that in every case it was a matter of degree. The defence appealed on the basis that there should have been a full Turnbull warning. The English Court of Appeal dismissed the appeal stating that the warning in Turnbull was not intended to deal with every case involving a minor identification problem but only with the ghastly risk run in cases of fleeting encounters.

[15]	In R v Andrews (1993 Crim. LR 590), three men attacked and kicked the victim. Police officers witnessed the assault. The accused ran off but was found in a street nearby and resisted the arrest. He denied being involved in the attack though he said he had witnessed it. The trial judge did not give a Turnbull warning, reminding the jury that the identification of the accused was not as clear as the other two but said that on the evidence the police officer’s description fitted the accused. The English Court of Appeal allowed the appeal because the judge effectively withdrew the accuracy of the description from the jury by saying "quite plainly that was John Andrews - certainly he is extremely well built". The Court also said that it would also have been at least prudent for a Turnbull direction to be given.

[16]	This principle was re-affirmed in R v Thornton (1995 1 Cr. App. R.578) where the English Court of Appeal allowed the appeal of an accused who gave evidence that he was present at a wedding reception where a violent assault had occurred. He said he was the one who went out to help the victim up and found himself identified. The Court noted that:

"The Judge ought to have given the Jury the full warning in accordance with the direction in the case of Turnbull… There were others similarly described to the appellant at the reception and a mistake was clearly possible".

[17]	However, in R v Slater (1995 Crim. LR 244) the English Court of Appeal qualified the case of Thornton. An assault took place in a nightclub and the accused said he had been present, had been aware of a disturbance but that he was not involved. The trial judge said that he was not sure that strictly it was an identification case and gave no full Turnbull warning. On appeal, the Court held that the need for a direction arises only where there is the possibility of mistaken identification. Where there is no issue as to the accused’s presence at or near the scene, but the issue is as to what he was doing, it does not automatically follow that the direction must be given. It will be necessary where the possibility exists that a witness may have mistaken one person for another for example because of similarities of build or clothing.

[18]	In his judgment, the learned Magistrate dealt with the issue of identification as follows:

"On the issue of identification, both PW2 and PW3 were 5 and 10 meters away from the act. They saw the accused and identified him there at the scene and they knew him very well as a street kid. They chased him down and caught him and took him to the Central Police Station. They both identified him again in Court. I am therefore satisfied on the issue of the identity of the accused beyond any reasonable doubt". 

[19]	The learned Magistrate’s analysis of the identification issue is not completely accurate. His Worship found that both (PW2) and (PW3) knew the appellant very well as a street kid. There was no evidence that (PW3) knew the appellant. Only (PW2) said he knew the appellant very well as a street kid.

[20]	Also, the complainant said that two men attacked him. He could only describe one of them as "a bald head with no t-shirt". (PW2) did not say how many men he saw. (PW3) said that he saw only one man, and he identified him to be the appellant.

[21]	In weighing up the quality of such identification, the learned Magistrate failed to analyze the surrounding circumstances of the identification made by (PW3) in accordance with the Turnbull guidelines. Although no full Turnbull warning was required, the learned Magistrate should have at least directed his mind to the possibility of mistaken identification and ruled out that possibility in light of the appellant’s challenge to the identification evidence by (PW3). The failure to do so and the erroneous finding that (PW3) knew the appellant well when there was no such evidence of it, in my view, prejudiced the appellant. This ground of appeal succeeds. 

Right to Call Witnesses

[22]	The Constitution guarantees some basic rights to every person accused of a crime. Every accused has the right to be given adequate time and facilities to prepare a defence [s.28(1)(c)]. Every accused has the right to adduce and challenge evidence [s.28(1)(f)]. Every accused has the right to a fair trial [s.29(1)]. There are provisions in the Criminal Procedure Code (Cap.21) that meet the constitutional requirements. One such provision is section 211, which states:

"211 (1) At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any).

(2) If the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of such witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process, or take other steps, to compel the attendance of such witnesses.

[23]	In Vatuabete v The State, Crim. App. No. AAU0018 of 1998S, in considering the obligations of the trial court under section 211, the Court of Appeal at page 6 said:

"If, having considered those questions, he is satisfied both that the absence of the witnesses is not due to the fault or neglect of the accused person and that their evidence is likely to be material, he has a discretion whether to adjourn the hearing and whether to take steps to compel the witnesses’ attendance. That discretion must, of course, be exercised judicially. Usually that can be done by the magistrate asking the accused person what evidence he expects each of his witnesses to give and, if its materiality is not obvious, to ask him also how he thinks the evidence will help his case. The terms of section 211(2) are such that it is reasonable, where an accused person is legally represented, for the magistrate to rely on his counsel drawing to his attention facts which will satisfy him in respect of those two matters. But, in our view, the magistrate cannot reasonably expect an accused person who is not represented to be aware of the requirements of the subsection and to address those matters on his own initiative. The magistrate must take the initiative".

[24]	Similar views were expressed by Gates J in Ratucava v The State, Crim. App. No. HAA0021/00L, when his Lordship at page 4 said:

"What the Court of Appeal is urging upon all courts in dealing with unrepresented accused is that the procedure of section 211(2) be followed carefully in the interests of justice. Even when a Magistrate is faced by a persistent offender with a less than compelling defence, he must be careful not to prevent the production of a witness or evidence that might persuade the court to a contrary view from the initial…".

[25]	According to the record, the appellant opted to remain silent and informed the learned Magistrate that he had no witness in court on that day. The learned Magistrate then adjourned the case for judgment. The appellant now complains that he was denied an opportunity to call witnesses. The record is silent about what the appellant meant when he said he had no witness in court on that day. He could have meant many things. The ambiguity arising from the appellant’s statement should have triggered the learned Magistrate to make a further enquiry from the appellant as to whether he wished to call witnesses in his defence. After all, the appellant was unrepresented. If the appellant wished to call witnesses who were not present in court, then the learned Magistrate should have complied with section 211(2) of the Criminal Procedure Code (Cap. 21).

[26]	The right to present evidence and to have the court issue subpoenas to bring into court all witnesses and give evidence favourable to an accused at no cost to him or her is an essential prerequisite for a fair trial. According to the record, the appellant did not waive his right to produce evidence and witness on his behalf. He was denied his right to a fair trial. I find the appellant was prejudiced by lack of legal representation and the trial miscarried. I will allow the appeal, quash the conviction and sentence, and order a re-trial. There is no need to consider the appeal against sentence.

Result

[27]	The appeal is allowed.

[28]	Conviction and sentence are quashed.

[29]	Case is remitted to the Magistrates’ Court for re-trial before a different Magistrate.

Daniel Goundar
JUDGE

At Suva
Monday 19th November, 2007

Solicitors
Appellant in Person
Office of the Director of Public Prosecutions, Suva for the State