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Koroicakau v State [2009] FJHC 124; HAA102.2008 (17 June 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA102//2008

BETWEEN:

MACIU KOROICAKAU
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in person
Ms. S. Puamau for State

Date of Hearing: 1st June 2009
Date of Judgment: 17th June 2009

JUDGMENT

[1] Following a trial in the Magistrates’ Court, the appellant was convicted of robbery with violence, unlawful use of motor vehicle and rape. His co-accused was convicted of the same offences on pleas of guilty. The appellant was sentenced to 8 years imprisonment for robbery with violence, 18 months imprisonment for unlawful use of motor vehicle and 8 years imprisonment for rape, to be served concurrently, but consecutively with any pre-existing sentence. He appeals against conviction.

[2] At the hearing of the appeal, the appellant confined his grounds of appeal to the issue of identification evidence and prejudice due to lack of legal representation.

[3] The appellant was positively identified by three prosecution witnesses, albeit in a dock identification, as one of the persons who committed the offences.

[4] The complainant gave evidence that on 3 August 2006 at around 7.30pm she was at home with her mother, brother and housemaid, when the appellant and his co-accused forced their way into their home and threatened them with a knife. She said the appellant went around the house, searching for items. He took a tea-towel and tied it around his mouth.

[5] Except for the computer room, all other rooms were well lit. After searching the house, the appellant took the complainant upstairs to a room and raped her. The following day, the complainant identified the appellant from an album of photos given to her by the police. The appellant was arrested and charged.

[6] The complainant’s mother and housemaid gave a similar account of the incident and positively identified the appellant from an album of photos given to them by the police and as well as in the dock during the trial.

[7] After close of the prosecution case, the trial Magistrate found the appellant had a case to answer and explained him, his rights.

[8] The appellant remained silent but called two witnesses. The co-accused who had already been dealt with, gave evidence that the person who entered the house of the complainant with him was not the appellant but someone else who had stowed away to New Zealand.

[9] Dike Manasa, a serving prisoner who had escaped from prison and was in Lautoka on 3 August 2006, said the appellant was with him.

[10] The only issue at the trial was the identification of the appellant. The appellant quite competently cross-examined the prosecution witnesses by pointing out inconsistencies in their evidence and their police statements and the description of the suspect they gave to the police. However, the trial Magistrate found the inconsistencies to be immaterial and accepted the identification evidence of the prosecution witnesses after carefully scrutinizing the circumstances under which the witnesses identified the appellant.

[11] In a case where identification is challenged, the guidelines contained in the case of R v. Turnbull [1997] 63 Cr. App. R. 132, are applied to assess the identification evidence. 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, has 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."

[12] The manner in which the trial Magistrate dealt with the identification issue is contained in the following passages of her judgment:

"[E] the 1st prosecution witness was the first person who came face to face with the 2 intruders in her house on that fatal day – 3/8/06. They were both wearing beanies. It was evening. The lights where she was, were switched on. She said she had a clear view of both the intruders. Whilst they were held in the computer room one guarded whilst the other ransacked the house. He had by then tied a tea-towel round the mouth, but most of the face was visible.

The light outside the computer room were switched on. They were all taken upstairs. The rooms were searched. The passage light was on. By that time the mask was removed. There was clear view of the 2 intruders. They were brought down to the computer room. [E] was taken upstairs again by one of the intruders. Though the curtains were drawn, there was sufficient light coming in from the passage light which was bright. She was in the bedroom with the intruder who told her to remove her sulu, to lie down on the bed and raped her. The act of sexual intercourse took approximately 5 minutes. She was face to face with her attacker at a very close proximity. The eyes get accustomed to dim lightning.

She saw her attacker from the time he entered the house to the time when he raped her. She identified the attacker from the album of photographs shown to her by the police. She positively identified her attacker in the Court as its no other than Maciu Koroicakau.

I also noted that during cross-examination Maciu Koroicakau asked [E]"were they singing along?" she replied "you were singing along the tune I had played in the living room." One would wonder why he would ask the question unless he had been singing. [MG] also identified Maciu Koroicakau as one of the persons who broke into her house. She said the lights around the house were all switched on. She saw Maciu Koroicakau. The lights upstairs in the passage was on and they were all in close proximity to each other and she saw Maciu Koroicakau clearly. It was also Maciu Koroicakau who asked her to take off her jewelleries and give to him. She also first identified Maciu Koroicakau from the album of photographs showed to her by the police.

[N] the house girl also identified Maciu Koroicakau as the person who entered into the house that fatal night and raped [E]. She also said the lights were switched on and she saw him clearly. She also said that he had tattoos on his arms above the elbow. She was also in close proximity to him – face to face when he tied her up. She saw him clearly from the hallway light."

[13] After citing relevant authorities on the admissibility of photographic identification evidence, the learned Magistrate said:

"The witnesses identified the accused from the photographs shown and the police made the arrest and carried out the investigation.

I accept their evidence regarding photographic identification.

The statements by the witnesses were given shortly after the incident to the police. This has been a horrific experience for the [G] household and especially so for [E]. In that state of mind, people do not always remember to relate each and every minute detail. In fact they also tend to forget the sequence of events. They do not always remember what exactly they told the police in the statement after the lapse of a year or so.

[M G] when giving her evidence appeared to be still shaken by the whole incident and especially so since her daughter was raped practically under her nose.

[E], that fatal evening was with Maciu Koroicakau alone for 5 minutes whilst being raped, he was in close proximity. How can she forget that face?

I found all the prosecution witnesses evidence especially [E]’s who though still shaken was positive in her identification of Maciu. She was a very credible witness. In fact [M] and [N]were also credible witnesses and I don’t doubt their evidence at all.

I do not believe Eparama Mani that he carried out the offences that night with Maciu Koroicakau look alike. I also do not believe Maciu Koroicakau’s alibi witnesses.

On that fatal night Maciu Koroicakau and Eparama Mani were in the [G] household for considerable length of time. They moved around in a well lit house. Upstairs the hallway light was bright.

The [G] households were in close proximity with the two intruders who most of the time were without any thing covering their mouth. They saw the two Maciu Koroicakau and Eparama Mani clearly.

I find Maciu Koroicakau’s identification by the 3 witnesses as positive and unshaken."

[14] Albeit the trial Magistrate did not explicitly warn herself of the special need for caution before convicting the appellant in reliance on the correctness of the identifications by the three prosecution witnesses, the omission in my view was not fatal, because the identification by the three witnesses were not a fleeting glance. By following the second limb of the Turnbull guidelines, the trial Magistrate who was an experienced senior lawyer, must have been mindful of the special need for caution in assessing the identification evidence of the three prosecution witnesses. The trials held in the Magistrates’ Court are summary trials, unlike trials before the assessors in the High Court. It would be quite unrealistic to expect the Magistrates to state every principle of law in their judgments. As long as the issue is correctly identified and sound reasoning process used in the application of the relevant law to arrive at a conclusion, the judgment will be upheld on appeal.

[15] In the present case the trial Magistrate carefully scrutinized the evidence before accepting it to convict the appellant. The trial Magistrate found the prosecution witnesses observed the two intruders over a long period of time as they searched their house and took them from one room to another. The observations were made in good lighting conditions without anything obstructing their view. The following day, they identified the appellant from an album of photographs. In these circumstances, the learned Magistrate did not err when she allowed dock identification of the appellant and by accepting the identification evidence of the prosecution witness to convict the appellant. Nor do I find the appellant was prejudiced by lack of legal representation.

[16] The appellant was not a total stranger to the criminal justice system. He has a long list of criminal convictions. He showed remarkable skills when he cross-examined the prosecution witnesses.

[17] I do not find any error of fact or law by the trial Magistrate in convicting the appellant based on the identification evidence led by the prosecution. The appeal against conviction has no merit. The conviction is confirmed.

[18] However, although the appellant has not appealed against sentence, I note that he was sentenced to 18 months imprisonment for the offence of unlawful use of motor vehicle. The maximum sentence that could be imposed for this offence is 6 months imprisonment. The sentence imposed by the trial Magistrate exceeds the maximum sentence prescribed by legislature for this offence. For these reasons, in the exercise of the revisionary powers of this Court, the term of 18 months imprisonment is substituted with a term of 4 months imprisonment.

[19] Since the sentence was ordered to be served concurrently, the effect is that there will not be a change to the overall sentence of 8 years imprisonment imposed on the appellant.

[20] Apart from the error in the sentence, I am satisfied that the appellant has been properly convicted in accordance with law.

[21] The appeal against conviction is dismissed.

Daniel Goundar
JUDGE

At Suva
17th June 2009

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions for State