State v Nute [2008] FJHC 326; HAC139J.2007S (26 November 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 139 of 2007

STATE

v.

NETANI MOTO NUTE
ILAISA SOUSOU CAVA
MANOA TOVIRIKI QALOVAKI

Hearing: 10th November – 26th November 2008
Sentence: 26th November 2008

Counsel: Ms L. Lagilevu for State
Mr. A. Vakaloloma for 1st Accused
Mr. T. Fa for 2nd Accused
Ms B. Malimali & Mr. Tarere for 3rd Accused

JUDGMENT

[1] Two of the three assessors have found the 1st and 2nd Accused guilty as charged of the offence of murder. All three assessors found the 1st and 2nd Accused not guilty of larceny, and two of the three assessors found the 1st and 2nd Accused guilty of unlawful use of motor vehicle.

[2] The majority opinions of the assessors are based on one view of the evidence, that is that the evidence of Manoa Qalovaki is reliable and credible and that the identification evidence of Constable Nacanieli Lomani is reliable and credible.

[3] Further, that the guilt of the 1st and 2nd Accused is the only reasonable inference to be drawn from the evidence of Manoa Qalovaki – that is that they either together or in a joint enterprise manually strangled the deceased and hung him from the bridge at Veisari.

[4] I agree with the assessors and convict the 1st and 2nd Accused on Count 1.

[5] On Count 2, I accept that there is reasonable doubt as to whether the three Accused were part of a joint enterprise to steal the phone and the taximeter. I acquit the 1st and 2nd Accused on Count 2.

[6] I accept the opinions of the assessors that the 1st and 2nd Accused were unlawfully using the deceased’s taxi and I convict them on Count 3.

[7] In relation to the 3rd Accused, two of the three assessors either believe that Manoa Qalovaki was under duress at the time of the offending or have a reasonable doubt about it. I accept the majority opinion and I acquit the 3rd Accused of murder.

[8] I convict him on Counts 2 and 3.

Nazhat Shameem
JUDGE

At Suva
26th November 2008