State v Tuiyanawai [2005] FJHC 132; HAC0022X.2004S (15 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0022 of 2004

STATE

v.

SAMISONI TUIYANAWAI;
SEMISI WAINIQOLO;
SOLOMONE BOINI; and
MOSESE YACO

Hearing: 14th June 2005
Ruling: 15th June 2005

Counsel: Mr. W. Kuruisaqila for State
All accused in person

RULING

The trial within a trial in this case has been completed. All caution statements were ruled admissible. The trial proper would have started yesterday, if it had not been for the absence of one assessor. Two of the Accused, namely the 1st and the 2nd now ask for separate trial. The 1st Accused said that he never went to the scene of robbery and did not know his co-accused. He said that he should not have been charged with them. The 2nd Accused says that his statement is exculpatory and that the only evidence against him comes from the confessions of his co-accused. This, he says will be highly prejudicial.

As I explained to the 1st Accused, all persons participating in one criminal enterprise, may be tried together by virtue of section 121(a) of the Criminal Procedure Code. In this case, according to his police interview, the 1st Accused is alleged to have informed other persons (not those in the dock) about the money to be collected from the Westpac Bank by Armour Guard on the day in question. He was an employee of Armour Guard a security company. If this evidence is accepted by the assessors, it will implicate the 1st Accused as an aider and abettor, even if he never took part in the robbery itself. He is therefore rightly joined as co-accused. Further I see no prejudice to him, in a joint trial. As was said in R v. Moghal 65 Cr. App. R. 56, it is only in exceptional cases that separate trials should be ordered for two or more defendants who are jointly charged with participating in one criminal enterprise. The reason is not only time and money. It is also desirable that the courts achieve uniform results in respect of multiple offenders, and that all the evidence is heard together so that a full picture of the offending is put before the courts. Certainly, there are no exceptional cases justifying separate trial here.

In respect of the 2nd Accused, the evidence against him is circumstantial. He was allegedly found in possession of a large sum of money shortly after the robbery, for which (according to the State) there is no reasonable explanation. The out-of-court accusations of his co-accused are not admissible against him, and the assessors will be told accordingly.

I have advised State counsel that I will be asking for submission at the no case stage, in relation to this Accused. At this stage however, I see no reason to order separate trial in his case. The applications are refused.

Nazhat Shameem
JUDGE

At Suva
15th June 2005