State v Buksh [2005] FJHC 419; HAC0010D.2005S (11 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC0010 of 2005S

STATE

v.

SHAKIR RIAZ BUKSH;
JITOKO METUI;
ARE AMAE;
PAULIASI DELAIBATIKI; and
TEVITA KOTOIRAKIRAKI

Hearing: 7th November 2005
Ruling: 11th November 2005

Counsel: Mr. P. Bulamainaivalu for State
Ms R. Senikuraciri for 1st Accused
Mr. G. O’Driscoll for 2nd Accused
Ms B. Malimali for 3rd and 4th Accused
Ms U. Fa for 5th Accused

RULING

The five accused persons are jointly charged with the murder of Ashok Kumar, on the 7^th of January 2005. The 1^st, 2^nd and 5^th Accused ask for separate trial. At the hearing of this application, counsel for the 3^rd and 4^th Accused after initially saying that a joint trial was preferred, said that her instructions had changed and that the 3^rd Accused did request a separate trial. State counsel opposes the applications.

In R v. Moghal 65 Cr. App. R. 56, it was said on an appeal from an order for separate trial, that it was only in exceptional cases that separate trials should be ordered for two or more defendants facing a joint charge.

The reason for this general principle, is the public interest. It is desirable that the same verdict and treatment should be returned amongst all those concerned in the same offence. Also relevant is that a joint trial saves time and money. Grounds on which separate trials have been ordered, include inordinate length or complicated evidence in a joint trial (R v. Novac 65 Cr. App. R. 107, 118) and prejudice to the accused which cannot be cured by editing of interviews or directions to the jury (R v. Silcott [1987] Crim. L.R. 765; R v. Gunewardene [1951] 2 KB 600).

Separate trials need not be ordered where one defendant’s defence involves an attack on another (R v. Grondkowski and Malinowski [1946] KB 369). In R v. Cairns, Zaidi and Chaudhary [2009] EWCA Crim 1570; (2003) 1 Cr. App. R. 38, the defendants all blamed each other for the offence. A separate trial was not ordered because if the defendants had been separately tried, there was a real possibility that different trial courts would have heard different accounts of the same acts with a real chance that there would be a resulting miscarriage of justice. In a commentary on R v. Sullivan, The Times, March 18, 2003 Archbold 2005, at para 1.177 states:

“... where the appellant had been charged with murder and false imprisonment and his two co-accused had been charged with manslaughter, false imprisonment and obstructing a coroner, all arising out of the same sequence of events, it was held that the refusal of the appellant’s various applications for separate trials had been correct and that the case was “crying out” for all three defendants to be tried together, notwithstanding that (i) the defence of the co-defendants was that the appellant was solely responsible for the victim’s death and that any relevant actions on their parts had been the result of duress by the appellant; (ii) the co-defendants were permitted to adduce evidence that was prejudicial to the appellant to support their defences, and (iii) the co-defendants were given a more general licence to adduce evidence of the appellant’s bad character once he had put his character in issue by attacking the character of one of them.”

In R v. Boyle 92 Cr. App. R. 202, however the Court of Appeal held that a separate trial should have been ordered where a co-defendant wished to cross-examine the appellant on a caution interview which had been ruled inadmissible when the prosecution had tried to tender it. The prejudice resulting from such limits to cross-examination should have resulted in a separate trial. There are other cases arising from this point, in particular, R v. Myers [1997] UKHL 36; [1997] 3 WLR 552 [1998] AC 124, where a defendant wished to lead evidence of the out-of-court confession of a co-defendant which was inadmissible, but which exonerated the defendant. In that case, the House of Lords held that such a statement could be led in evidence so long as it was relevant to the defence of the defendant, so long as it was obtained fairly, and so long as the statement is in fact incriminating.

In this trial, this is an issue which may arise, if I rule the admissions of the 3^rd and 4^th Accused inadmissible after the trial within a trial.

In the recent case of State v. Brijan Singh and Sashi Salendra Singh HAC0020 of 2005 separate trials were ordered in relation to charges of false pretences. The publication of the ruling is prohibited so I will not set out the facts. However, after applying the principles I have set out above, Winter J ordered separate trials on the grounds that both trials were likely to be short, so public expense was not an issue, and that it was an essential part of the defence of one accused, that the other give evidence. Further the defences of both accused were radically different, and an editing of the caution interview of one accused to prevent prejudice to the other would be prejudicial to the maker of the interview.

Turning to the facts in this case, the State will lead its evidence on the basis that the five accused were involved in a joint plan to rob the shop of the deceased, and that the deceased was killed in the course of events which were probable consequences of the robbery. Counsel for the defence will run their defences in different ways. The 1^st Accused will argue that although he was part of the robbery, the death or injury of the deceased was not foreseen by him, and was not a probable consequence of the joint plan. The 2^nd Accused will argue that although he restrained the deceased, he did not cause his death because the deceased was still alive when he left the shop.

The 3^rd and 4^th Accused will say that they were not present during the robbery at all, and the 5^th Accused will say that the killing of the deceased was not a probable or a foreseen consequence of the robbery. There is clearly a real possibility that the 1^st and 5^th Accused at least will say that the 2^nd Accused killed the deceased.

Counsel for the 1^st Accused, submits that by holding a joint trial for all accused, a positive injustice would be caused to the 1^st Accused because his participation was limited to the robbery. This is because the assessors may associate in their minds, the conduct alleged against the 2^nd Accused, in relation to the case against the 1^st Accused. He further submits that a separate trial will not take longer then a joint trial, and that the evidence led against each accused is different.

Counsel for the 2^nd Accused submits that a separate trial should be held for his client because the majority of witnesses to be called are not relevant to his client, and because the only real issue in his case is causation. Further he submits that there is a real risk of prejudice arising from the 3^rd and 4^th Accused’s denials of involvement even in the robbery, because such denials are inconsistent with the 2^nd Accused’s position. Counsel for the 3^rd and 4^th Accused persons said that she did not object to a separate trial but that there were advantages to both accused in a joint trial. This is because the assessors will be given an alternative version of the events from the interviews of the other accused. Counsel for the 5^th Accused asked for separate trial for the same reasons advanced by counsel for the 2^nd Accused.

On the disclosed statements filed by the prosecution, this is a strong case for joint trial. All accused persons are alleged to have acted together in relation to the robbery. The question of whether any of the evidence to be tendered, will be inadmissible and therefore will deprive any of the accused of the right to cross-examine another accused on it, cannot be answered at this stage of the trial. However, because in some respects the versions given by the accused differ in detail, there is a strong argument in favour of a joint trial. A joint trial will prevent inconsistencies in verdict. Further this is not a case of a “cut-throat” defence. The 2^nd Accused will not deny the tying of the scarf. He will deny causation and malice aforethought. In that sense, the 1^st and 5^th Accused persons do not necessarily take a position contrary to his because they would be unable to vouch for either issue. The only real conflict is that the 3^rd and 4^th Accused deny the truth of their confessions, and deny their own presence which is quite different from the factual basis of the statements of the other Accuseds. However the statements of the other accused persons are not evidence against anyone other then the maker. A direction will be given to the assessors accordingly. There is of course a possibility that one or more of the accused will give sworn evidence. In that case, all accused will be able to cross-examine. That in turn will assist the assessors to decide which versions of the facts are reliable. Indeed this constitutes a strong argument in favour of joint trial.

For these reasons the applications for separate trial are dismissed.

Nazhat Shameem
JUDGE

At Suva
11^th November 2005