State v Tuivuya [2003] FJHC 187; HAC0015J.2002S (10 November 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0015 OF 2002S

STATE

v.

WAISALE TUIVUYA

Mr. W. Kuruisaqila for State
Mr. A. Singh for Accused

Hearing: 20th October 2003
Judgment: 10th November 2003

JUDGMENT

The assessors have given their unanimous opinions that the accused is not guilty of murder. This has not been an easy case to decide. The main defences, of lack of malice aforethought, and of reasonable force used to effect arrest and/or in self-defence have been based essentially on questions of fact arising from a most difficult time in Fiji’s history. The year 2000 featured hostage-taking, abduction, murder, the unlawful possession of arms and ammunition and the introduction of the armed forces for the maintaining of law and order; a role usually exercised by the police.

This case must be seen in the context of those events. In particular on the 3rd of November 2000, a particularly volatile situation occurred at Nadonumai requiring the intervention of the police and the army in the capturing of Alifereti Nimacere.

In considering whether Nimacere was shot as a result of an act of reasonable force used during a lawful arrest, and/or as an act of reasonable self-defence, the assessors were required to look at all the facts and circumstances in the case, the terrain, the lighting, the offences alleged to have been committed by Nimacere, the firearm he had, the way he ran and the honest belief of the accused. These were not easy questions to consider in the cold light of day in this courtroom. However, the question was and is ultimately one of fact. In this case they have decided that the accused is not guilty of murder. I have directed myself in accordance with my summing up and in all the circumstances I agree with their opinions and acquit him accordingly.

Nazhat Shameem
JUDGE

At Suva
10th November 2003