IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 155 OF 2007

STATE

vs

1.	RATU BATINIQIO RASAQIO
2.	EMOSI DAGOYA
3.	SEFANAIA NUKULAVAI
4.	PAULIASI NACAGILEVU
5.	ISIKELI TAULELE
6.	ISIKELI RALULU

Mr. J. Singh for the State
Ms J. Nair for the First Accused
Ms N. Nawasaitoga for the Second Accused
Mr. A. Singh for the Third Accused
Mr. T. Terere for the Fourth and Sixth Accused
Fifth Accused in Person

SEVERANCE APPLICATION

[1] Counsel for the first three accused make application under section 59(3)(a) of the Criminal Procedure Decree 2009 to sever the murder charge against their clients from the robbery charges (4 in all) that they face on the same information.

[2] All three have entered pleas of guilty to the robbery counts and counsel submit that the evidence relating to these counts will be prejudicial to their trial on the murder count. The fourth accused who is also charged with the murder count maintains a plea of not guilty to the robberies and the evidence will therefore need to call to prove the robbery charges against him.

[3] The brief facts of the case are that on the 5th October 2007, the four accused during a drinking party planned to go to rob Mata Prasad's Store in Tavua. They took knives and pinch bars with them. They approached the store and waited for the victim to close up the shop. When he closed the shop they apprehended him and tied him up. They then went to his dwelling house nearby and in that house they robbed four ladies using violence (the four robbery counts). The wife of the store-owner (one of the robbery victims) went out to find where her husband was, and found him dead on the ground with broken ribs and injuries to his head.

[4] Counsel submit that there is no direct evidence of homicide against the four accused and therefore evidence of violent robberies at the time will be severely prejudicial. 

[5] Counsel for the second and third accused submits that lay assessors would not be able to divorce the two separate crimes from each other. 

[6] Counsel for the third accused emphasizes the time that would be saved to the Court by having the murder count (which he says would take no more than 2 days) heard separately. 

[7] Counsel for the State opposes the application. He says that the charges arise out of the same incident and are founded on the same series of facts and that even if severed there would be a necessity to bring the same witnesses to court for the two separate trials. 

[8] It is the Court's view that the facts leading to the charges on this information cry out to be heard together. It was a planned robbery gone wrong and it will be for the assessors to tell me just how wrong. It is not the case that the charges are evidentially unrelated, or that there is included one scandalous charge or that the charges are complex and too numerous (all of which have been reasons to sever counts in the Courts of England recently. 

[9] The general rule relating to severance of trials was said by the Court of Appeal in England in R v Assim (1966) 2 All ER 881 to be:

"As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same Jury offences committed be the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the Court, be tried together. Such a rule, of course includes cases where there is evidence that several offenders acted in concert but is not limited to such cases." 

[10] The panel of assessors will be directed in appropriate terms to look at each charge separately and not to be influenced by evidence that is not relevant to the charge. In R v Blackstock 70 Cr. App. R 34 the Court of Appeal (England) said:

"Every trial Judge is familiar with the requirement, where more counts than one of a similar kind are joined in an indictment, of adding a warning to the Jury that they must not add all the Counts together and convict because there is more than one count in the indictment, or use the evidence on one count as evidence on the other. They should consider each count separately in the light of the evidence upon that particular count against the accused person, but no other. Juries have shown themselves well able over the years to follow such a direction and apply it"

[11] The question of time saved is not relevant and in any event not much time would be saved. Some of the civilian witnesses would have to be called twice. As the State counsel points out to run two trials is an expensive burden on the State.

[12] I agree. Only in cases where it is absolutely necessary should severance of counts be ordered. Not one of the accused in this trial will be prejudiced in his defence by being charged with both robbery and murder. The assessors will be directed to ignore the pleas of guilty to robbery when assessing the evidence on the murder and on the evidence against the 4th accused. 

[13] The trial will commence on the 29th instant on the information presently before the Court

Paul K. Madigan
Judge

At Lautoka
27 July 2010