State v Vulaca [2008] FJHC 84; HAC120J.2007S (22 April 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 120 of 2007

STATE

v.

LOLE VULACA
WAISALE BOLETAWA
MAIKA RAUQERA
RUSIATE KOROVUSERE
JONE CAMA
ERONIMO SUSUNIKORO
EREMASI NARAGA
PITA MATAI

Hearing: 25th March – 22nd April 2008
Judgment: 22nd April 2008

Counsel: Mr. W. Kuruisaqila & Ms L. Lagilevu for State
Mr. J. Semisi for Accused 1, 2, 3, 4, 6-8
Mr. S. Karavaki for Accused 5

JUDGMENT

The Assessors’ opinions are mixed. Two Assessors find the 1st, 4th and 8th Accused guilty as charged. One Assessor finds all Accused guilty as charged.

The role of assessors is to advise the judge. However, the greatest weight is given to the opinion of assessors by the judge because they are the judges of fact, and because they represent the community.

In this case the majority opinion is that the 1st and 4th Accused are guilty of murder, and the 8th Accused is guilty of being an accessory after the fact. These opinions are not perverse and they are possible on the evidence led in this case.

The 1st Accused led the raid on the deceased’s house. He spoke the words to the mother of the deceased which showed that he knew there was a plan to assault the deceased. He knew and did not prevent that assault. Further from his conduct thereafter, he was at the station for a period of time, and the next morning he conveyed the deceased to hospital. His conduct at the hospital was consistent with the consciousness of guilt. For these reasons, I accept the unanimous decision of the Assessors on this count for the 1st Accused and convict him accordingly.

The evidence against the 4th Accused also indicated knowledge of and complicity with, the assault in the Crime Office. He was in the briefing meeting, the escorting party and in the station while the deceased was being assaulted. The unanimous opinions of the Assessors are in accordance with the evidence. In particular the majority opinion seems to be that the evidence of participation in the joint enterprise came not just from the arrest and escort of the deceased, but from a continuing course of conduct that night by the 1st and 4th Accused. I accept their opinions and convict the 4th Accused accordingly.

In relation to the 2nd, 3rd, 5th, 6th and 7th Accused, I accept that the evidence of their complicity in a joint plan to assault the deceased is not strong. Although the 2nd Accused was involved in the conveying of the deceased to the hospital, and in the initial escort, I accept that there is reasonable doubt as to his complicity in the unlawful assault in the Crime Office.

In relation to the 3rd, 6th and 7th Accused there is even less basis for drawing an inference of guilt. In relation to the 5th Accused, I accept that he was not in the arresting party and that he played no direct role in the custody of the deceased in the Crime Office.

As such, although I am satisfied beyond reasonable doubt that the deceased died as a result of sustained and prolonged police assault in the Crime Office in the night of the 4th and 5th of June 2007, and that the assaults were administered with either intention to cause grievous bodily harm or indifference as to causing grievous bodily harm, I accept that two of the three Assessors have a reasonable doubt about the involvement, complicity and knowledge of the 2nd, 3rd, 5th, 6th and 7th Accused. Their findings are consistent with the evidence and with my summing up. I concur and acquit the 2nd, 3rd, 5th, 6th and 7th Accused.

All Assessors are unanimous as to the guilt of the 8th Accused. I accept as a matter of fact that the deceased was dead when the 8th Accused saw him in the Crime Office. I reject the evidence of Constable Kalidole and PC Samuela who said otherwise. I accept that the deceased had visible injuries on his legs, abdomen and back. I accept that the 8th Accused knew this and ordered the removal of the body instead of preserving the crime scene. I also accept that he told IP Ramasibana that the deceased was having breathing difficulties when he knew that was not true. I accept that he knowingly assisted those police officers whom he knew were responsible for the injuries and the deceased’s death to evade police investigation. The failure to preserve the crime scene is further evidence of such assistance.

I accept the unanimous opinions of the Assessors in relation to the 8th Accused and I convict him accordingly.

Nazhat Shameem
JUDGE

At Suva
22nd April 2008