Magistrates Court of Fiji

[19] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen ( 1970 AC 618) reported in 72 New Law Repo13 (Snka),

“A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[20] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and “one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim “Ex qui affirmat non ei qui negat incumbit probatio”. On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim “In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur” have to be noted.

Analysis of the evidence

[21] In line with the above guiding principles, now I evaluate the evidence adduced before me. The PW1 and 2 positively identified that the accused. They said they are sure about the accused. PW1 Did not say that she had seen the accused before the incident. PW2 said he had seen the accused before the incident. The time duration was two minutes to grab the purse. But literally it happened in a second. When the victim resisted the accused punched. It did not transpire what was the date that identification parade had been held. But the accused caution interview recorded on 02th October 2010. The victim was robbed on 02nd August 2010. Therefore it is clear the parade held after 2 months of the incident. The accused defence is mistaken identity. But the prosecution witnesses confirmed the accused is the culprit. . Was this identification proper? This case is purely based on visual identification. In relation to visual identification the Turnbull guidelines plays a vital roll.

[22] In R v Turnb160; (1977) Q.B.224, [24, [1976] 3 WLR 445 ,( 1977) 65 Cr. App. R. 242,LORD WIDGERY C.J.

a] “whenewhenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, judge should warn the jury or the special need for caution before convicting the accused in reliance on the correctness of the identification”

b] " the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made”. Then following questions need to be considered.

i. How long did the witness have the accused under observation?
ii. At what distance?

iii. In what light?

iv. Was the observation impeded in any way as for example by passing traffic or a press of people?

v. Had the witness ever seen the accused before?

vi. How often?

vii. If only occasionally, had he any special reason for remembering the accused?

viii. How long elapsed between the original observation and the subsequent identification to the police?

ix. 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?

c] “He (Judge) should remind the jury of any specific weaknesses which had appeared in the identification evidence”

d] “Recognition may be more reliable than identification of a stranger”

e] “if the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened, but the poorer the quality, the greater the danger".

[23] According to PW1, PW2 and police investigations, it is crystal clear that elements of these charges have been proved. But did PW1 and 2 identify the accused properly? In applying above principle, I consider that the evidence placed before me.

i. How long did the witness/es have the accused under observation? About 2 minutes (but I think this within second happened)

ii. At what distance? Face to face

iii. In what light? Tube lights

iv. Was the observation impeded in any way as for example by passing traffic or a press of people? Not applicable

v. Had the witness ever seen the accused before? PW1: No PW2: yes

vi. How often? Not applicable

vii. If only occasionally, had he any special reason for remembering the accused? Scar in forehead, but did not mention in the police station
viii. How long elapsed between the original observation and the subsequent identification to the police? After two months in front of the police station, in a shop and no proper identification parade was held according to the rules.

ix. 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? No

[24] In 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.

[23] In Daley y. R. (1994) 98 Cr. App. R. 447 a decision of the Privy Council on an appeal from Jamaica it was:

"Held: allowing the appeal, that where the quality of the identifying evidence is poor, or so slender as to be unreliable and there is no other evidence in support of identification, then the judge should withdraw the case from the jury. ... In the instant case, considering the weaknesses of the identification evidence, the case should have been withdrawn from the jury."

[24] In this case the defence contended the manner of identification parade was held. The PW3 admitted that Standard rules were not followed it was an exceptional case. Though Mr. Vere promised to give Force Standing Orders before judgment, still I did not receive it. But in common law, Australia, the rules are laid in the CRIMES ACT 1914 - SECT 3ZM. It says;

Identification parades

(1) This section applies to identification parades held in relation to offences.

(2) Subject to subsection (3) and to section 3ZN, an identification parade:

(a) may be held if the suspect agrees; or

(b) must be held if:

(i) the suspect has requested that an identification parade be held; and

(ii) it is reasonable in the circumstances to do so.

(2A) Without limiting the matters that may be taken into account in determining whether it is reasonable in the circumstances to hold an identification parade, the following must be taken into account:

(a) the kind of offence, and the gravity of the offence, concerned;

(b) the likely importance in the circumstances of the evidence of identification;

(c) the practicality of holding an identification parade, having regard, among other things:

(i) if the suspect fails to cooperate in the conduct of the parade--to the manner and extent of, and the reason (if any) for, the failure; and

(ii) in any case--to whether an identification was made at or about the time of the commission of the offence; and

(d) the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.

(3) An identification parade must not be held unless the suspect has been informed that:

(a) he or she is entitled to refuse to take part in the parade; and

(b) if he or she refuses to take part in the parade:

(i) evidence of the refusal may be given in later proceedings relating to an offence, for the purpose of explaining why an identification parade was not held; and

(ii) evidence may be given in such proceedings of any identification of the suspect by a witness as a result of having seen a photograph or having seen the suspect otherwise than during an identification parade; and

(c) in addition to any requirement under section 3ZN, a legal representative or other person of the suspect's choice may be present while the person is deciding whether to take part in the parade, and during the holding of the parade, if arrangements for that person to be present can be made within a reasonable time.

(4) The giving of the information referred to in subsection (3) must be recorded by a video recording or an audio recording.

(5) An identification parade must be arranged and conducted in a manner that will not unfairly prejudice the suspect.

(6) Without limiting the intent of subsection (5), an identification parade must be arranged and conducted in accordance with the following rules:

(a) the parade must consist of at least 9 persons;

(b) each of the persons who is not the suspect must:

(i) resemble the suspect in age, height and general appearance; and

(ii) not have features that will be visible during the parade that are markedly different from those of the suspect as described by the witness before viewing the parade;

(c) unless it is impracticable for another constable to arrange or conduct the parade, no constable who has taken part in the investigation relating to the offence may take part in the arrangements for, or the conduct of, the parade;

(d) no person in the parade is to be dressed in a way that would obviously distinguish him or her from the other participants;

(e) if it is practicable to do so, numbers should be placed next to each participant in order to allow the witness to make an identification by indicating the number of the person identified;

(f) the parade may take place so that the witness can view the parade without being seen if the witness requests that it take place in such a manner and:

(i) a legal representative or other person of the suspect's choice is present with the witness; or

(ii) the parade is recorded by a video recording;

(g) nothing is to be done that suggests or is likely to suggest to a witness which member of the parade is the suspect;

(h) if the witness so requests, members of the parade may be required to speak, move or adopt a specified posture but, if this happens, the witness must be reminded that the members of the parade have been chosen on the basis of physical appearance only;

(i) the suspect may select where he or she wishes to stand in the parade;

(j) if more than one witness is to view the parade:

(i) each witness must view the parade alone; and

(ii) the witnesses are not to communicate with each other at a time after arrangements for the parade have commenced and before each of them has viewed the parade; and

(iii) the suspect may change places in the parade after each viewing;

(k) each witness must be told that:

(i) the suspect may not be in the parade; and

(ii) if he or she is unable to identify the suspect with reasonable certainty he or she must say so;

(l) the parade must be recorded by a video recording if it is practicable to do so and, if that is done, a copy of the video recording must be made available to the suspect or his or her legal representative as soon as it is practicable to do so;

(m) if the parade is not recorded by a video recording:

(i) the parade must be photographed in colour; and

(ii) a print of a photograph of the parade that is at least 250mm x 200mm in size must be made available to the suspect or his or her legal representative; and

(iii) the constable in charge of the parade must take all reasonable steps to record everything said and done at the parade and must make a copy of the record available to the suspect or his or her legal representative;

(n) the suspect may have present during the holding of the parade a legal representative or other person of his or her choice if arrangements for that person to be present can be made within a reasonable time.

(7) Nothing in this Act affects the determination of the following questions:

(a) whether or not evidence of a suspect having refused to take part in an identification parade is admissible;

(b) if evidence of such a refusal is admissible, what inferences (if any) may be drawn by a court or jury from the refusal;

(c) whether, after such a refusal, evidence of alternative methods of identification is admissible.

(8) If a witness is, under the supervision of a constable, to attempt to identify a suspect otherwise than during an identification parade, the constable must ensure that the attempted identification is done in a manner that is fair to the suspect.

Conclusion

[25] The parade was not held within the court premises. It is held at convenience of the victim. The court understands, her leg was broken, yet she could come in wheel chair or with a support of somebody to identify the accused. Proper procedure is to be followed. There are no short cuts for these things. The parade was held after two months of the incident; still the prosecution was confident the accused is the culprit. The victim did not tell special features of the forehead of the accused. The PW2 did not tell that he saw the accused before the incident. The accused said he often goes to buy bread. If the accused positively identified, why did police fail to arrest him early. Judging of someone's destiny is a god's work. But we, judicial officer are not gods. It was really unfortunate incident. But the Court should consider the available evidence. Thousand culprits can be released of insufficient evidence. But if innocent person is convicted, it will be unfortunate, mockery of judicial system. In this backdrop I hold it is unsafe to convict the accused on available evidence. There is a strong possibility of mistaken identity. I therefore hold that the charge has not been proved beyond reasonable doubt against the accused.

[26] The Accused is acquitted and discharged.

[27] 28 days to appeal

On 16th July 2013, at Nasinu, Fiji Islands.

Sumudu Premachandra
Resident Magistrate