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R v Nisifolo [2009] TOLawRp 1; [2009] Tonga LR 27 (9 January 2009)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 155/2006

R

v

Nisifolo

Shuster J
10, 13, 14 November 2008; 9 January 2009

Criminal law – robbery – issue as to identity – defendant guilty

On 3 February 2006 the complainant was employed as an accountant at a Hot Bread Shop and she went to her main office to deposit the daily shop takings of $467. The Crown contended that whilst the complainant was standing outside the office, the accused approached the complainant and started a conversation with her. At a point in time he raised his fist, as if to strike at the complainant. The Crown alleged that the complainant moved backwards and into a defensive position, in order to defend herself and at that point the accused reached out and pulled the bag of money from the complainant which contained the takings and ran away. The defendant was charged with the offence of robbery. He pleaded not guilty and alleged mistaken identity.

Held:

1. Circumstantial evidence could be powerful evidence, but it was important that it was examined with care to consider whether the evidence which the prosecution relied upon in proof of its case was reliable and whether it did in fact prove guilt. Furthermore, before convicting on circumstantial evidence the Court should consider whether it revealed any other circumstances which were or may be of sufficient reliability and strength to weaken or to destroy the prosecution's case.

2. The case against the defendant depended to a large extent on the correctness of one [or more] identification[s] made of him and which he alleged to be mistaken. To avoid the risk of any injustice the Court needed to consider the special need for caution before convicting the defendant in reliance on the evidence of identification by a single witness.

3. The Court found the complainant to be very credible. Accordingly, the defendant was found guilty.

Cases considered:

Fagan v the Metropolitan Police Commissioner [1968] 1 QB 439

R v Aziz and others [1995] 2 Cr App R 478

R v Vye, Wise and Stephenson 97 Cr App R 134

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown : Mr Fakahua
The defendant represented himself

Judgment

The Defendant

The Defendants is: - charged on an indictment filed in the Supreme Court on the 1st September 2008. The Defendant was charged with the offence of Robbery. He was arraigned on the 1st September 2008 and he pleaded Not Guilty to the single count indictment- as is his legal right.

The substantive hearing of this matter took place on the 10th 13th and 14 of November 2008.

The Charge Against the Defendant

Count One. ROBBERY-contrary to section 154(1) of the Criminal Offences Act Particulars of which are: - PISIMA'AKE NISIFOLO on or about the 3 February 2006 at MAILETAHA, you did rob UINISENI KIVALU of $467.00 by using violence thereby overcoming her opposition to the taking.

The Brief Facts

On the 3rd February 2006 the complainant UINISENI KIVALU was employed as an accountant at a Hot Bread Shop, she went by car over to her main office in order to deposit the daily shop takings of $467.00. The Crown says whilst the complainant was standing outside her Head Office, the accused approached the complainant and started a conversation with her. At a point in time he raised his fist, as if to strike at the complainant. The Crown alleges, the complainant in apprehension of being punched, moved backwards and into a defensive position, in order to defend herself. At this point the Crown say the accused reached out and pulled a bag of money from the complainant, which contained takings of $467.00, after stealing the money, the accused ran away, so the Crown say the offence of robbery is complete.

Elements of Robbery

Section 154 (Cap 18)

(1) Robbery is the taking of anything capable of being stolen by using violence or threats of injury to the owner or person in lawful possession of the thing taken or to any property of his- so as to put him in fear and thereby overcome his opposition to the taking.

(2) Every person who commits robbery shall be liable to imprisonment for any period not exceeding 10 years.

The term assault-is frequently used to include both an assault and a battery. Strictly speaking an assault is an independent offence, and should always be treated as such see: - Fagan v the Metropolitan Police Commissioner [1968] 1 QB 439.

An assault is any act and not a mere omission to act by which the person intentionally- or recklessly causes another person to apprehend immediate unlawful violence. So an assault involves a hostile intent.

Leading Cases and Policy

In considering this my judgment - I considered and applied cases widely known throughout the Commonwealth. These cases are routinely applied in common law jurisdictions for offences; or allegations involving cases such as this. They can equally be applied in Tonga.

Modern Law says I must consider and apply to every case "a defendant's good character directive" that is to say good character cannot of itself provide a defence to a criminal charge, but it is evidence which I should take into account when I come to consider my verdict. R v Vye, Wise and Stephenson 97 Cr App R 134 & R v Aziz and others [1995] 2 Cr App R 478.

The Burden and Standard of Proof

As this is a criminal trial before a Judge sitting alone: - I certify I have directed myself in accordance with the Law on the Burden and Standard of Proof in a criminal case. Where appropriate I have given the defendant the benefit of doubt. The prosecution brings this case; they must prove the case beyond any reasonable doubt so that I am sure the defendant committed the offence. The defendant does not have to prove anything; because he is innocent until he is proven guilty.

Circumstantial Evidence

If there is reliable evidence from a witness who actually saw a defendant commit a crime; or if there is a video recording of the incident which plainly demonstrates his guilt; or if there is reliable evidence of the defendant himself having admitted it, these would all be good examples of direct evidence against him / her.

Circumstantial evidence can also bolster direct evidence.

1 On the other hand it is often the case that direct evidence of a crime is not available, and the prosecution relies in whole or in part upon circumstantial evidence to help prove guilt. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say, when taken together will lead to the sure conclusion that it was the defendant who committed the crime.

2 It is not necessary for the evidence to provide an answer to all-the questions raised in a case. One might think it would be an unusual case indeed in which a judge or jury can say 'I or we now know everything there-is to know about this case'. But the evidence must lead to the sure conclusion that the charge which the defendant faces is proved against him.

3 Circumstantial evidence can be powerful evidence, but it is- important that it is examined with care, and to consider whether the evidence which the prosecution relies upon in proof of its case is reliable and whether it does in fact prove guilt. Furthermore, before convicting on circumstantial evidence I should consider whether it reveals any other circumstances which are or may be- of sufficient reliability and strength, to weaken or to destroy the prosecution's case.

4 Finally, I must be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, neither the prosecution the defence nor I, should do that.

Voluntary Caution Statement

I am required under the law to consider a defendants voluntary caution statement[s] and also his / her charge statement- as to whether they are voluntary; or not, in the true sense of the word. In this case the Crown told me they did not seek to rely upon the VCS or charge statement of the defendant.

The Defence Case

• The accused as is his right under the law denies the offence as alleged in the Indictment - and

• He puts the prosecution to strict proof- alleging mistaken identity he also put forward:-

• A defence as one of alibi.

• He gave evidence on oath and he called witnesses.

Alibi

• The defendant says that he was not at the scene of the crime when this crime was committed.

• The prosecution has to prove his guilt so that I am sure of it

• The defendant does not have to prove he was elsewhere at the time.

• On the contrary the prosecution must disprove his alibi.

• Even if I were to conclude that the alibi was false, that does not by itself entitle me to convict the defendant.

• It is a matter which I might take into account,

• I should also bear in mind that an alibi is sometimes invented to bolster a genuine defence.

Visual Identification

The case against the defendant depends to a large extent on the correctness of one [or more] identification[s] made of him- and which in this case he alleges to be mistaken. To avoid the risk of any injustice in this case, such as has happened in cases in the past, I need to warn myself of the special need for caution before convicting the defendant in reliance on the evidence of identification by a single witness.

1. A witness, who is convinced in his or her own mind, may as a result be a convincing witness; but may nevertheless be mistaken. The same may apply to any number of witnesses in a case

2. Mistakes can also be made in the recognition of someone known to a witness, even of a close friend or of a relative. The law is quite clear- I must therefore examine carefully the circumstances in which the identification by the witness was made. Analysing in particular for how long did she have the person she says was the defendant- under direct observation? AND-

• At what distance and in what light

• Did anything interfere with that observation?

• Had the witness ever seen the person, she observed before?

• If so how often, and how many times

• Had she any special reason for remembering him?

• How long was it between the witness's original observation, and any identification she may have made to the police?

• Is there any marked difference between the description given by the witness to the police when he was first seen, and, the appearance of the defendant today?

The Evidence

The Crown called five (5) witnesses to prove their case. Their first witness PW1 was the complainant UINISENI KIVALU. PWI gave an eye witness account of her movements on the night in question the 3rd February 2006. She testified that it was the defendant who she saw face to face standing- right in front of her-; and she saw him in a good light. She said the defendant approached her and in her opinion- he was going to strike her, so that is why she pulled back. She described the defendant as wearing a black t-shirt, with black pants; and he had a red grip scarf- on his head. She told the court the robbery took place at around 1000pm on 3rd February 2006. The complainant said that the area they were standing in- near to her car - was well lit,

She was delivering the day's takings to her Head Office; the takings amounted to some $467, when the day's takings were snatched from her hands. She described her assailant as having long hair, and being of medium build. She positively identified the accused as the assailant in court. She said that he had since cut his long hair, and as a result- he now had much shorter hair. PW1 used the words - "she was sure it was him"

PW1 testified she also saw the accused on the day following the robbery (4th February 2006) he was standing near to a Chinese shop. The witness said he then moved across the road to end up standing near to a tree. The witness testified she saw the accused on the 4th when she went out searching for him as the suspect in the robbery. She said she was en route to an address she had been given for him, along with her witness and friend LU'ISA MALAMALA. The complainant confirmed; when she saw the accused standing by the tree on the 4th; he was still wearing the same clothes he had on when she was robbed of her shops takings the night before. If that is true, then that is quite persuasive identification and also reliable recognition evidence. The complainant gave her evidence calmly- she was quite persuasive and she was not swayed in her very positive identification of the accused, as being the culprit who carried out the robbery in February 2006. I found as a fact PW1--- was a credible witness.

Tevita Malama

The witness Tevita Malama PW2 testified he worked with the accused. He described him as a taxi driver and said they both worked from a taxi base near to the hospital. The witness told the court the accused was wearing a black T-shirt, with black pants and a red grip on the night of the alleged robbery, so in essence he confirmed what the accused was wearing, on the night of the alleged robbery and he also proved the accused was in fact mobile. This witness corroborates the accused's clothing in particular he refers to his black pants. I found he was also a credible witness.

Lu'isa Malamala

The witness Lu'isa Malamala told the court the complainant contacted her on the day following - the alleged robbery. The complainant had already told the court in her evidence in chief- that the robber approached her and had asked if she was MALAMALA'S wife. That conversation had taken place on the night of the alleged robbery- immediately prior to the robbery. When the complainant described the features of the man who she said robbed her the night before, and, had said he asked her if she was MALAMALA'S wife, Lu'isa said it sounded like the description of the accused- NISIFOLO PISIMA'AKE. Both PW3; and the complainant PW1 said they drove, over heading towards the accused's home address, and, on the way to the, accused's house, they saw the accused standing near to a Chinese shop. The complainant told me she identified the accused, both Crown witnesses testified the accused was wearing black pants. a black-T shirt and a red grip/scarf on his head but, they both described his hair as being much shorter than it was in 2006. All in all, the Crown says this is compelling evidence, and sufficient to convict the accused of robbery.

The defence case

The defendant

The defendant gave evidence that on the night in question he was wearing a black t-shirt with the image of Bob Marley on both the front and on the back of his t-shirt, he wore white pants and had a red grip scarf on his head. The defendant denied being at or near the scene, in essence, the accused claimed mistaken identity on the part of the complainant. He gave evidence that on the day following the robbery which was the 4th February 2006 he changed his clothing and had put on black pants, a black t-shirt and a red grip scarf.

DW2 Sulia Hoeift

She is the de facto partner of the accused in this case; she testified on the night of this offence the accused wore, white pants, a black-t-shirt with a Bob Marley image on both the front and on the back of the t-shirt, together with a red grip scarf on his head. She said on the night in question she was at home all night and she had no knowledge of what the accused may or may not have done. On re-examination she confirmed that when he went out the following day, the accused wore the same clothes he had worn; on the night in question the 3rd February 06.

DW3 Sione Teu

He gave evidence that the robber wore a grayish hood and black pants and he stated that the robber was tall and skinny, and it was not the defendant. He said he saw the robber standing face to face with the victim. He accepted he only saw the robber for a few seconds, and that he was standing 10-15 meters away when he saw the robbery. He said he only became aware of the robbery when the victim screamed and he did not see his face.

DW4 Otara Folau

She told the court she was only aware of the robbery when the victim screamed she did not actually witness the robbery, she told the court the robber wore a grayish hood and black pants and she saw him running away. She confirmed she did not see his facial features.

Inferences and Speculation

A court is not entitled to speculate, but it may draw inferences. There may be strong circumstantial evidence in which a court may say, when taken together will lead to the sure conclusion it was the defendant who committed the crimes. As I have indicated--Circumstantial evidence can be powerful evidence, but it is equally important to examine it with care and to consider whether the evidence upon which the prosecution relies in proof of its case is reliable and if it does prove guilt; or, are there any other circumstances which are, or may be of sufficient reliability and strength to weaken or destroy the prosecution's case. Finally a court should be careful to distinguish between arriving at conclusions based upon reliable circumstantial evidence and mere speculation. Speculation in a case amounts to no more than guessing; or making up theories without good evidence to support them, neither the prosecution, the defence nor should I do that.

Analysts and Conclusion

In this case the defendant submits the prosecution has failed to prove its case beyond reasonable doubt, and he asks me for an acquittal. I do not intend to rehearse the evidence or the written closing, speeches because in a case such as this, it is a question of whom do I believe, on the evidence placed before me. Further- this was a short trial with just a few issues. It is the evidence given in open court-and on oath which goes to prove whether or not I find the guilt or innocence of the accused. Assessing the evidence as a whole:-

As said before --UINISENI KIVALU- gave me an eye witness account of her movements on the night of the 3rd February 2006. She testified it was the defendant who she saw face to face standing right in front of her- and she said she saw him in a good light. She told me the defendant approached her and in her opinion- he was going to strike her so that was why she pulled back. She described the defendant in detail, as wearing a black t-shirt, with black pants; and he had a red grip scarf on his head. She told the court the robbery took place at around 10.00pm on the 3rd February 2006. The complainant told me that the area they were standing in- near to her car - was well lit. She was delivering the day's takings to her head office which amounted to some $467 when the takings were snatched from her hands. She described her assailant as having long hair, and being of medium build. She also positively identified the accused as the assailant in court and said that he had since cut his long hair, and as a result- he now had much shorter hair. The witness PW1 used the words - "she was sure it was him". She then told me that she also saw the accused on the day following the robbery (4th February 2006) he was standing near to a Chinese shop. She said he then he moved across the road to end up standing near to a tree she was with her witness and her friend LU'ISA MALAMALA. The complainant witness confirmed to the court; when the saw the accused standing by the tree on the 4th; he was still wearing the same clothes he had on when she was robbed of the day's takings the night before. This is quite persuasive evidence it is evidence of both identification and is also recognition evidence. The complainant gave her evidence calmly- she was persuasive and she was not swayed in her positive identification of the accused, as being the culprit and who carried out the robbery in February 2006. In my view she would have no reason to lie or make up evidence. She even carried out 320 her own investigation and as such I found as a fact she was a very credible witness. Accordingly I find the prosecution has proved its case beyond reasonable doubt so that I am sure it was the defendant who robbed the complainant and I find him guilty as charged.