State v Prasad [2009] FJHC 5; HAM127D.2008 (16 January 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Cr. Misc. Case No: HAM 127 of 2008

Between:

THE STATE
Applicant

And:

1. ASHNEEL ASISH PRASAD
2. WAISAKE TUIMEREKE
3. KELEPI SERUKALOU
4. MITIELI KALOUDIGIBECI
5. EMORI NAQOVA
6. JOSATEKI CAMA
7. ASESELA TAWAKE
Respondents

Hearing: 21st November 2008
Ruling: 16th January 2009

Counsel: Mr. P. Bulamainaivalu for State
Mr. I. Khan for 1st Respondent
Mr. A. Vakaloloma for 3rd, 5th and 7th Respondents
Mr. A. Vakaloloma for 6th Respondent for Mr. A. Naco

RULING

[1] The State wishes to amalgamate HAC 154, 157, 158 and 164 in one Information, charging 7 accused persons with one count of robbery with violence. If successful the State will proceed with one trial, the Information alleging that on the 18th of August 2008 at Nakasi the accused persons robbed Rishi Segran of $62,972.34 in cash and cheques of $1,033.76, the property of Rajendra Prasad Foodtown Supermarket, and immediately before such robbery used personal violence on Rishi Segran. The first accused Ashneel Asish Prasad, and the second accused Waisake Tuimereke object to amalgamation on the ground that a joint trial will be prejudicial to them. Mr. Khan who appeared for the 1st accused said that his client’s role was minimal and the mere fact of the presence of five other accused persons in the dock with him would be highly prejudicial. The 2nd accused agreed saying that his alleged role was also minimal and that even with appropriate directions to the assessors, the prejudice to him would be insurmountable in a joint trial.

[2] The State makes this application by notice of motion and affidavit. The affidavit is that of Detective Constable Avenai Tamanalevu of the Nabua Police Station, the investigating officer in the case. According to his affidavit, the 1st and 2nd accused were jointly charged with the offence of conspiracy to commit a felony on the 1st of September 2008 in the Nasinu Magistrates’ Court. The 3rd, 4th, 5th and 6th accused were charged on the same day, or subsequently with the offence of robbery with violence. The 7th accused was jointly charged with the 4th, 5th and 6th accused. All cases were transferred to the High Court. The State now wishes to charge all accused with the offence of robbery with violence.

[3] The facts of the case are that there was a robbery at the Westpac Bank in the Tebara Complex on the 18th of August 2008, when the Manager of the Foodtown Supermarket had gone there to bank the takings from the 15th, 16th and 17th of August 2008. Rishi Segran’s statement, annexed to the affidavit of Detective Constable Tamanalevu states that the robbery was effected when a youth came behind him in front of the bank, bumped him and by force pulled the carton from his hands. He said the youth came from a brown van, he had a dark complexion, was about 5 feet 8 inches tall and was of medium build. He was drinking coca cola. The van was driven by another youth, another was seated in the back and a fourth waiting in front of the van, 50 metres away. The van then left and drove towards Nausori town.

[4] The 1st accused was interviewed under caution on the 22nd of August 2008. The interview contains an admission that he drives a dark brown Toyota Liteace registration number EL059. He said that on the Saturday before the 18th of August 2008, he went to Wainibuku with one Betty, to meet with one Shabina Devi. He said that Betty had come to his home, told him she had a "long job" for him and took him to Shabina’s farm. Shabina then told him she wanted to hire his van for the 18th of August. He agreed and left with "Betty." He said neither woman told him that his van would be used in a robbery.

[5] On the 18th of August 2008, he went to Wainibuku at 7am and picked up Shabina. He took her to Rajendra Supermarket in Nakasi where Shabina unloaded some cabbages at a stall behind the supermarket. He then drove her to Bailey bridge in Vatuwaqa where she dropped the rest of her vegetables. He then drove her to Vivrass Plaza where she made some telephone calls. She then told him to leave the key on the floor of the van. He then became suspicious and asked Shabina who was going to drive his van. She said "someone." They then caught a taxi to Kinoya and then to Wainibuku. At Wainibuku, Shabina told the 1st Accused that his van was damaged. During the journey she was speaking to someone on her mobile phone. They went to the Central Christian Centre and he saw that his van was parked in the compound. They then went back to Wainibuku to Shabina’s house "where somebody took me to the nearby bush and tied my hands and legs and also my mouth in the rope just to pretend that I was robbed." He then said:

"From there I then managed to free my legs and came on the roadside with my both hands still tied together and my mouth as well. From there one taxi came driven by one Indian man who then stopped and untied both my hands and mouth and he took me to Nakasi Police Station where I finally lodged my report."

[6] He then agreed that Betty had given him a mobile phone on the Sunday before the 18th of August, and that she had given him $1,500 in cash on the 21st of August, at the Regent’s Taxis base. She said that the money was for the repair of his van and for his personal use. He then gave her back $150, bought a mobile phone for $290 and some other items, leaving him with a balance of $926. He said that after he knew his van was involved in a robbery Shabina told him not to worry and promised to give him $5000. However he said he had no idea if the money given to him was his share of the proceeds. He said that he only knew that his van had been involved in the robbery after Shabina told him about it at Wainibuku.

[7] The caution interviews of Shavila Devi and Betty Kumar were also annexed to the affidavit. Devi said under caution and in a plain statement that a man called "Wise Guy" met her a month before the robbery and asked her to arrange a van for him, in a telephone conversation on Saturday the 16th of August 2008. She then contacted Betty who brought the driver to Wainibuku. She then said: "I told the driver that one fella wants to use his van and he is going to give him $500.00. I further told him that it is a pick-up job and there will be no problem and they will return the van together with the money." He then told her he had never done this kind of job in his life and was "really scared in giving his van." She then reassured him, telling him she would accompany him. She then admitted that she had known the nature of the proposed "job" but that she had lied to Betty about it. She then told "Wise Guy" that the van was arranged. On the 18th of August, she spoke to him on her mobile phone and he told her to take the vehicle to Vivrass. There the key was left in the tissue box on the dashboard and she informed "Wise Guy" of this. She and the 1st Accused ten took a cab to the house of her partner in Kinoya and then to her farm at Wainibuku. "Wise Guy" then called her to tell her the van was parked in the Church Compound. When she and the 1st Accused arrived there they saw the police inspecting the vehicle so they left. Wise Guy then told her what to do, and the 1st Accused agreed. He asked for a rope and left with Shavila’s brother Sunil. She said that she received $1800 from "Wise Guy", and later when the 1st Accused complained about not getting his share she received a further $370 which she gave to the van driver. She said that "Wise Guy" is an old acquaintance and his real name is Waisake Tuimereke.

[8] Betty Kumar was also interviewed under caution. She said that "Sabina" asked her to arrange a van to take her to Nadi. She later found out that the van had been involved in a robbery. She said she was asked by "Sabina" to give the 1st Accused $1,500 from which he gave her $150. She believed that he gave her this money to thank her for arranging the job. She said she felt suspicious and did not use the money. She said she did not know anything about the robbery. She repeated this evidence in a plain statement.

[9] The affidavit also annexes the caution statement of Kelepi Serukalou the 3rd accused. It is, of course, not admissible against any of the co-accused. However he told the police that he was the person who grabbed the carton of money and cheques from a man at the Tebara Complex. He said that he did this as a result of a conversation with Waisake Tuimereke on the 17th of August 2008. After the robbery Tuimereke gave him $5000 as his share of the robbery.

[10] The statement of Laisiasa Koroivuki is that on the 17th of August 2008, he received a telephone call from one "Lam" asking him to do "a job" on the 18th of August. The next day Koroivuki boarded a bus and got off at Davuilevu. He was told to wait by Lam who called him on his mobile phone.

[11] He saw a brown Toyota Liteace van approaching him with 6 or 7 persons inside it. "Lam" was sitting in the back seat. One of them, Emori Naqova told him to drive the van to the Central Christian Centre. He did so, after the person who had driven the van to Davuilevu, had removed its fake number plates. He left the empty van there, and caught a mini van to Nausori. He flushed the key of the van down a public toilet in Nausori, then boarded a bus and went home. "Lam" later gave him $200 in cash. The affidavit of Detective Constable Tamanalevu states that "Lam" is a pseudonym for the 4th accused.

[12] There is also evidence that some of the persons involved in the robbery were identified by bystanders, who also later identified suspects at an identification parade. According to Detective Constable Tamanalevu, they were the 3rd accused and the 4th accused. The 5th accused was identified at the scene by Detective Corporal Semiti Rokobuli, who also identified the 6th and the 7th accused in the same vehicle.

[13] From this affidavit and its annexed statements, it is apparent that each of the accused is alleged to have been part of the same robbery on the 18th of August 2008.

[14] However the nature of the evidence against the 1st accused is circumstantial. He does not admit to anything more than a suspicion that something wrong was afoot when he was told to leave the key on the floor of his van, and said that it was only after the robbery that he realized what had occurred. The prosecution will rely on the evidence of Shavila Devi and of Betty Kumar to prove the 1st Accused’s knowledge. If these witnesses give evidence according to their police statements, then the question for the court is whether the 1st accused lent his car to unknown persons at the behest of these two witnesses, knowing that he was assisting in a robbery. I am not asked to rule on sufficiency of evidence, only on whether a joint trial will be prejudicial to the accused.

[15] The evidence against the 2nd accused comes not only from the statement of Shavila Devi but also from Vodafone records which show a large number of calls made to his mobile number by Shavila Devi, and to her by him before and after the robbery. The evidence, if accepted suggests that the 2nd accused procured the van for use in the robbery and was instrumental in the distribution of the proceeds of crime. Both the 1st and 2nd accused are therefore alleged to be aiders and abetters, counsellers and procurers of the substantive offence of robbery with violence.

[16] Section 21 of the Penal Code provides:

"When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –

(a) every person who actually does the act or makes the omission which constitutes the offences;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids or abets another person in committing the offence;
(d) any person who counsels or procures any other person to commit the offence.

In the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission."

[17] In State v. Prakash Chetty [2001] AAU0034/98 the Court of Appeal held that the prosecution must prove that the secondary offender knew in broad terms, what the principal offender was doing, or was intending to do, and did the act constituting assistance, with the intention of assisting or encouraging the principal offender.

[18] Section 120(1) of the Criminal Procedure Code provides:

"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 a similar character."

[19] Section 121 provides:

"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 a part of a series of offences of the same or a similar character;
(d) persons accused of different offences committed in the course of the same transaction."

[20] 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."

[21] Both at common law and under statute, the prosecution is entitled to charge principal offenders and secondary offenders in one charge or information provided there is sufficient evidential and factual nexus in relation to each accused, and provided there is no prejudice to the accused (DPP v. Merriman (1972) 56 Cr. App. R. 766, 796; Peni Varawa, Solomoni Lagidamudamu and Others v. State [2002] HAA 0002/02B; Isireli Leweniqila & 5 others v. State [2004] HAM 031/04S). In Shell Fiji Limited, Mobil Oil (Aust) Ltd. v. State [2002] HAA 001/00L, where the offences alleged to be committed by two oil companies were quite separate and independent of each other, the High Court held (per Gates J) on appeal that separate trials should have been ordered.

[22] However where several accused are charged with a single offence based on the same facts, separate trials are undesirable. The reasons are obvious. Firstly separate trials for multiple accused are expensive and time-consuming. Secondly there is a real danger that different sets of assessors will reach conflicting conclusions on the same evidence leading to inconsistent verdicts. Thirdly there is a risk that different courts will impose inconsistent sentences, once a guilty verdict is recorded. In the interests of justice therefore a joint trial for multiple defendants charged with committing the same offence, is usually preferred.

[23] In this case I am not persuaded that there will be any prejudice to the 1st and 2nd accused, in a joint trial, that cannot be cured by clear directions to the assessors to consider the evidence against each accused separately. Indeed, if the involvement of the first two accused is indeed marginal compared with the others, a joint trial becomes even more important – to ensure that the trial court sees the alleged involvement of each in its correct perspective. Lastly because the State will rely on circumstantial evidence in relation to the first two accused, such evidence will include evidence of the substantive offence. To lead that evidence thrice, in three separate trials, would be a complete waste of judicial resources.

[24] The interests of justice demand a joint trial. The State is granted leave to file the joint charges in an amended Information.

Nazhat Shameem
JUDGE

At Suva
16th January 2009