Chaudhary v State [2010] FJHC 281; HAM127.2010 (9 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 127/2010

BETWEEN:

NAVIN CHAUDHARY
Applicant

AND:

THE STATE
Respondent

Hearing: 29th July 2010
Ruling: 9th August 2010

Counsel: Applicant in person
Ms R. Drau for State

RULING

[1] The applicant applies for a separate trial. He is charged with two counts of aggravated robbery. Initially, there were two co-accused persons but charges against one co-accused have been disposed after he had pleaded guilty. The ground upon which the applicant seeks a separate trial is that the remaining co-accused implicates him in his caution interview.

[2] The power to order separate trials is discretionary (R v. Moghal 65 Cr. App. R. 56) and is provided by section 59 of the Criminal Procedure Decree 2009. Section 59(3) reads:

- Where, before a trial or at any stage of a trial, the court is of opinion that –

(a) an accused person may be prejudiced in his or her defence by reason of being charged with more than one offence in the same charge or information; or

(b) 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 in the charge or information.

[3] The prosecution relies on the principle of joint enterprise to prove the charges. The prosecution case is that the applicant and his co-accused entered the home of the complainants in the two counts and robbed them after threatening them with offensive weapons.

[4] On the facts of this case, the joinder of the accused persons in the two charges against them is lawful. The question is whether the applicant will be prejudiced or embarrassed in his defence by reason of being charged with his co-accused.

[5] The applicant relies on the caution statements of his co-accused implicating him to show prejudice.

[6] However, it is trite law that a statement made under caution is admissible only against the maker. If an accused implicates his co-accused in his caution interview, then the prejudice can be cured by a direction to the assessors that what an accused says in his caution interview is only evidence against him and not against others he is implicating.

[7] Where more than two persons are charged with the same offence, it is not uncommon for one accused to implicate the other. This does not mean that a separate trial has to be held for each accused. A fair hearing is obtained by appropriate directions to the assessors to disregard inadmissible evidence against an accused. It is not sufficient just to show prejudice arising from inadmissible evidence as a ground for a separate trial.

[8] For these reasons, the ground for a separate trial has not been made out and the application is refused.

Daniel Goundar
JUDGE

At Suva
9th August 2010

Solicitors:
Applicant in person
Office of the Director of Public Prosecutions for State