State v Nagalu; State v Tuinaviti [2008] FJHC 324; HAC122.2008; HAC123.2008 (26 November 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 122 of 2008

STATE

v.

EPARAMA NAGALU; and
JONETANI NACANI

__________________________________________

Criminal Case No: HAC 123 of 2008

STATE

v.

PENIJAMINI TUINAVITI; and
SAMUELA VUNISEI

Hearing: 20th November 2008
Ruling: 26th November 2008

Counsel: Ms N. Tikoisuva for State
Mr. A. Vakaloloma for Eparama Nagalu
All other accused in person

RULING

[1] This is the State’s application for consolidation of Information. The 1st Accused Eparama Nagalu who is represented by Mr. Vakaloloma does not object to consolidation. The remaining accused who are unrepresented, object to joint trial. Their principal ground of objection is that there is a risk that admissions made in one confession which implicate the others, will prejudice the trial of those others.

[2] All Accused persons are alleged to have committed the same three offences of robbery with violence, one of unlawful use of motor vehicle, one of damaging property, one of criminal intimidation, one of act with intent to cause grievous harm and one of larceny. They were separately charged because they were separately located and arrested. All offences are dated the 5th of July 2008.

[3] Section 121 of the Criminal Procedure Code provides that:

"The following persons may be joined in one charge or information and may be tried together, namely –

(a) persons accused of the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of abetment or of an attempt to commit such offence;

(c) persons accused of different offences provided that all offences are founded on the same facts, or form or are part of a series of offences of the same or similar character."

[4] Section 120(1) provides:

"(1) Any offences whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts or form, or are part of, a series of offences of the same or similar character."

[5] Section 120(3) provides:

"Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be embarrassed in his defence by reason of being charged with more than one offence in the same charge or information, or that for any other reason it is desirable to direct that the person be tried separately for any one or more offences charged in a charge or information, the court may order a separate trial of any count or counts of such charge or information."

[6] The section reflects the common law position on the joinder of counts and defendants. Where defendants are alleged to have committed the same offence together, either as principals or as secondary offenders, they can be charged together in one count on one indictment. Where defendants are separately committed, transferred or sent for trial, it is perfectly proper to join them in one indictment (R v. Ismail 92 Cr. App. R.92). However the court always has a discretion to order a separate trial.

[7] Generally a separate trial where defendants are alleged to have committed the same offence, should be ordered in exceptional circumstances (R v. Moghal 65 Cr. App. R. 56) because of the important public interest reasons in favour of joint trials. Joint trials save time and money, but they are also less likely to lead to inconsistent verdicts in relation to several co-defendants. Further, the fact that evidence which is inadmissible and prejudicial in relation to other accused, might be led in a joint trial, is not a good reason on its own to order severance. In such a case the remedy is in a strong direction to the assessors that such evidence is not admissible against other defendants.

[8] Thus, allegations against a co-accused in a caution statement is not a sufficient reason to order separate trial, nor is the intention of one defendant to call another as his witness (R v. Pieterson and Hellony [2005] UKHL 18; [1995] 2 Cr. App. R. 11).

[9] This principle applies in this case. All defendants were interviewed under caution. Some interviews include allegations which affect the others. Of course these statements are admissible only against the maker of them. Any prejudicial effect must be dealt with by strong direction to the assessors to disregard the admissions insofar as they implicate others.

[10] Having perused the disclosed statements in this case I am satisfied that this is not one of those exceptional cases of joint defendants which warrant severance. To conduct 3 separate trials, to call witnesses 3 times over and to take the risk of inconsistent verdicts against each, are not in the interests of justice.

[11] The State may file amended (consolidated) Information.

Nazhat Shameem
JUDGE

At Suva
26th November 2008