State v Nagalu [2010] FJHC 153; HAC122.2008S (21 April 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 122 OF 2008S

STATE

V

1. EPARAMA NAGALU
2. JONACANI NACANI
3. PENIJAMINI TUINAVITI
4. SAMUELA VUNISEI

Counsels: Ms. R. Drau for the State
Accused No. 1 in Person
Mr. V. Vosarogo for Accused No. 2
Accused No. 3 in Person
Accused No. 4 in Person

Hearing : 6th to 14th April, 2010
Summing Up : 20th April, 2010
Judgment : 21st April, 2010

JUDGMENT

1. After a trial lasting seven days, the assessors returned with an unanimous verdict of guilty as charged on all four accuseds, on counts No.1, 2, 3 and 7. On count No.4, the assessors reached an unanimous verdict of guilty as charged on accuseds No.1, 2 and 3. They reached a mixed decision on accused No.4, on count No. 4. Assessors No. 2 and 3 found accused No.4 guilty as charged, while assessor No.1 found accused No.4 not guilty as charged.

2. On count No.5, the assessors reached an unanimous verdict of not guilty as charged on accused No.1. On accuseds No. 2, 3 and 4, assessor No.2 and 3 found the three accuseds not guilty as charged. Assessor No.1 found the three accuseds guilty as charged.

3. On count No.6, the assessors reached an unanimous verdict of guilty as charged on accuseds No.2 and 3. Assessors No.2 and 3 found accused No.1 guilty as charged, while assessor No.1 found accused No.1 not guilty as charged. On accused No.4, assessors No.1 and 2, found accused No.4 guilty as charged, while assessor No.3 found the accused No.4 not guilty as charged.

4. I have reviewed the evidence called in the trial and I have directed myself in accordance with the summing up I gave the assessors. I find that the verdict of the assessors were not perverse. It was open to them to reach such a conclusion on the evidence. Obviously, they accepted the prosecution’s version of events on counts No. 1, 2, 3, and 7. The majority accepted the prosecution version of events on counts No.4 and 6.

5. On count No.1, the assessors accepted that the four accuseds broke into Ishwar Narayan’s residence, on 5th July 2008, between 1am and 2am. They accepted that the four accuseds threatened Ishwar Narayan and his wife with serious injuries, if they resisted. The assessors accepted that the four men stole $5,429 worth of properties, and fled in Mr. Narayan’s vehicle, "MEDIA 1".

6. On count No.2, the assessors accepted that the four accuseds unlawfully used Mr. Narayan’s vehicle, "MEDIA 1" when they fled in the same, and drove towards Suva Town House.

7. On count No.3, the assessors also accepted that the four accuseds, thereafter violently robbed receptionist Vitinia Tuisavura, of her gold chain, worth $150, and $600, in her custody, at Suva Town House Motel.

8. On count No.4, the assessors also accepted that accuseds No.1, 2 and 3 then proceeded to damage a pursuing police car, registration no. GN 356, when they rammed "MEDIA 1" into it, on 5th July 2008, shortly before 3am, after fleeing from Suva Town House. They also accepted that the group, attacked the police car by smashing its windscreen. A majority of two assessors (ie. assessor No. 2 and 3) also found that accused No.4 was part of the group.

9. On count No.5, the assessors unanimously found that accused No. 1 did not criminally intimidate Detective Constable Sachin Chand, on 5th July 2008. In a majority decision of two assessors (ie. assessor No.2 and 3), they also found that accuseds No. 2, 3 and 4 did not criminally intimidate Detective Constable Sachin Chand, at the time.

10. On count No. 6, the assessors accepted that accuseds No. 2 and 3 intentionally wounded Acting Corporal Mitieli Divarua when they struck him with pieces of timber and iron rods. In a majority decision of two assessors, they found accused No.1 and 4 were party to the attack on Acting Corporal Mitieli Divarua.

11. On count No.7, the assessors unanimously accepted that the four accuseds stole Ishwar Narayan’s Kenwood car stereo and CD changer, worth $2,000, when they abandoned "MEDIA 1", at Nasinu Secondary School, early morning on 5th July 2008.

12. I accept the assessors’ unanimous verdict of guilty as charged, on all four accuseds, on counts No.1, 2, 3 and 7. I find all four accuseds guilty as charged on counts No.1, 2, 3 and 7, and I convict each of them accordingly, on those counts.

13. On count No.4, the assessors unanimously found accuseds No.1, 2 and 3 guilty as charged. In a majority of two assessors to one, accused No.4 was found guilty as charged, on count no.4. I accept the assessors’ unanimous and majority decisions, and I therefore find all four accuseds guilty as charged, on count No.4. I convict them accordingly.

14. On count No.5, the assessors unanimously found accused No.1 not guilty as charged. In a majority of two assessors to one, accuseds No. 2, 3 and 4 were found not guilty as charged, on count No.5. I accept the assessors’ unanimous and majority decisions, and I therefore find all four accuseds not guilty as charged, on count No.5. I acquit them accordingly, on count No.5.

15. On count No.6, the assessors unanimously found accuseds No.2 and 3 guilty as charged. In a majority of two assessors to one, accuseds No.1 and 4 were found guilty as charged, on count No.6. I accept the assessors’ unanimous and majority decisions, and I therefore find all four accuseds guilty as charged, on count No.6. I convict them accordingly.

16. In summary, all accuseds are found guilty as charged on counts No. 1, 2, 3, 4, 6 and 7, and are convicted accordingly. All accuseds are found not guilty as charged on count No.5, and are acquitted accordingly.

Salesi Temo
Acting Judge

AT Suva
21st April 2010