State v Rasaqio [2010] FJHC 284; HAC155.2007 (5 August 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 155 OF 2007

STATE

v

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
Mr. T.Terere for the Fourth and Sixth Accused
Mr. A. Singh for the Fifth Accused (as amicus curiae)

RULING

[1] The fourth, fifth and sixth accused persons have at the end of the prosecution case submitted that there is no case for either of them to answer.

[2] The fourth accused is charged with murder and with four counts of violent robbery, but his present application is confined to the four robbery counts he faces. They read as follows:

SECOND COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of the Penal Code, Cap. 17.

Particulars of Offence

RATU BATINIQIO RASAQIO, EMOSI DAGOYA, SEFANAIA NUKULAVAI and PAULIASI NACAGILEVU on the 5th day of October 2007 at Tavua in the Western Division, robbed SATYA WATI s/o NAREND PRASAD of 3 bangles valued at $3,000.00 4 gold rings valued $1,600.00, pair of ring valued $300.00 and 1 mangle sutra valued $1,000.00, all to the total value of $5,900.00 and immediately before and at the time of such robbery did use personal violence to the said SATYA WATI w/o NAREND PRASAD.

THIRD COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of the Penal Code, Cap. 17.

Particulars of Offence

RATU BATINIQIO RASAQIO, EMOSI DAGOYA, SEFANAIA NUKULAVAI and PAULIASI NACAGILEVU on the 5th day of October 2007 at Tavua in the Western Division, robbed KARUNA RAM d/o MATA PRASAD of cash $2,000.00 (Fijian currency), $300.00 (Australian currency), 4 gold bangles valued at $3,500.00, 6 gold rings valued $1,090.00, nokia mobile phone valued $500.00, 1 necklace valued $1,000.00 and 1 reading glasses valued $350.00, all to the total value of $8390.00 and immediately before and at the time of such robbery did use personal violence to the said KARUNA RAM d/o MATA RAM.

FOURTH COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of the Penal Code, Cap. 17.

Particulars of Offence

RATU BATINIQIO RASAQIO, EMOSI DAGOYA, SEFANAIA NUKULAVAI and PAULIASI NACAGILEVU on the 5th day of October 2007 at Tavua in the Western Division, robbed BIMJA KUMARI SINGH d/o MATA PRASAD of cash $300.00 (Fijian currency), assorted jewelleries valued at $2,000.00, and Rolex wrist watch valued at $1,500.00 all to the total value of $6,500.00 and immediately before and at the time of such robbery did use personal violence to the said BIMJA KUMARI SINGH d/o MATA RAM.

FIFTH COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(a) of the Penal Code, Cap. 17.

Particulars of Offence

RATU BATINIQIO RASAQIO, EMOSI DAGOYA, SEFANAIA NUKULAVAI and PAULIASI NACAGILEVU on the 5th day of October 2007 at Tavua in the Western Division, robbed SURUJ KUMAR d/o DULI CHAND SINGH of cash $10.00 (Fijian currency), puma bag valued $20.00 and 1 gold chain valued $600.00 all to the total value of $630.00 and immediately before and at the time of such robbery did use personal violence to the said SURUJ KUMAR d/o DULI CHAND SINGH.

[3] The fifth and sixth accused are charged with one count of housebreaking with intent to commit a felony. The charge against them reads as follows:

SEVENTH COUNT

Statement of Offence

HOUSE BREAKING WITH INTENT TO COMMIT FELONY: Contrary to section 302(1) of the Penal Code, Cap. 17.

Particulars of Offence

ISIKELI TAULELE and ISIKELI RALULU with others on the 6th day of October 2007 at Tavua in the Western Division, broke and entered the dwelling house of LATCHMAN NAIDU s/o RAMLU with intent to commit felony therein namely robbery.

The Fourth Accused

[4] Counsel for the fourth accused in later conceding that there is a case to answer on the second count submits that after the events which led to that count, he then withdrew by leaving the scene and standing on the roadside, thereby abandoning the joint enterprise and his complicity in the three other robberies committed at the same time and in the same house.

[5] The State submits that there is an unchallenged admission in the fourth accused's caution interview to punching the victim of the first robbery before her goods were stolen (hence the concession of the fourth accused's Counsel) and that this plainly shows that he was part of the joint enterprise and after this act of violence he saw 2 of his co-offenders go into the house where 3 more robberies were committed. Counsel submits that with intention to rob he played his part and he is therefore equally liable for the other robberies committed in the enterprise.

[6] The law is quite clear that any withdrawal from participation must be "effective" before further offences are committed. The classic test of withdrawal was expounded by Sloan J.A in R v Whitehouse [1941] 1 WWR 112 (from the Court of Appeal of British Colombia) when he said -

"After a crime has been committed and before a prior abandonment of the common enterprise may be found by a jury there must be, in my view in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime...where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate from the contemplated crime to those who desire to continue in it. What is "timely communication" must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that it will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw."

[7] In the case of R v Perman [2009] UKPC 41; [1996] 1 Cr. App. R. 24 the Court of Appeal doubted whether it is possible for a party to a joint enterprise to withdraw therefrom once the contemplated criminal activity has commenced.

[8] Therefore the disappearance of the fourth accused from the "house of robberies" cannot be said to be an abandonment. He has said nothing to his co-offenders; he has merely gone to stand at the roadside. He had admitted joining in the planning to rob Mata's Store and to going there with a kitchen knife in his back pocket. He said he knew others were carrying knifes and a pinch bar. After punching the intended victim of the robbery he heard a lady calling from the next door house and he went up, confronted her and "pulled her and punched her on the side of the face and pulled her beside the car". It was at this time that 2 of his co-accused went inside the house where 3 more robberies were committed. He then left and went to the road, giving as a reason that he "mission had failed" because as he said the key they took from the intended victim could not be used to open the shop. He expressed no remorse at the robberies of the victims in the house and he communicated his disappointment to no one.

[9] It could never said that he had abandoned the joint enterprise to rob. He had "neutralized" the first lady to come out while the others went in to rob three more ladies.

[10] I find that there is a strong case for the fourth accused to answer on all counts and the assessors will be directed on abandonment. It will ultimately be a matter for them.

[11] Counsel for the fifth accused submits that there is no case to answer for his charge because the case against him put at its highest is such that he assessors could not convict on it. It must then be the Judge's duty to stop the case. He cited the Galbraith case and the case of R v Kalisoqo FJCA CA 52 of 1984.

[12] Such a submission unfortunately shows a lack of appreciation as to the true test of a prima facie case before the High Court of Fiji. That test is set out in section 231 of the Criminal Procedure Decree which reads:

"When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of the several accused) committed the offence."

[13] That test under section 231(1) is settled and is more stringent than the test under section 178 of the same Decree. The English test for no case to answer stated in the case of Galbraith (1981) 2 All ER 1060 has no application to a case in this Court. The Galbraith guidelines were expressly rejected by the Court of Appeal in Sisa Kalisoqo v R – Cr. App. No. 52 of 1984 because in England the matter is not governed by any Statute. In Kalisoqo the Court of Appeal took the view that if there is some direct or circumstantial evidence on the charged offence, then a judge cannot say there is no evidence on the proper construction of section 231(1). This view was later confirmed by the Court of Appeal in State v Mosese Tuisawau – Cr. App. 14/90.

[14] More recently the Court of Appeal in State v George Shiu Raj and Shashi Shalendra Pal [2006] AAU0081/05 and State v Brijan Singh [2007] AAU0005 confirmed that the correct approach under [section 231(1)] is to ask whether there is some relevant and admissible evidence on each element of the charged offence, and not whether the evidence is inherently vague or incredible.

[15] As a result of those decisions in the Court of Appeal the decision of Fatiaki J. (as he then was) in State v Kapoor and Chandra [1996] FJHC 111 cannot be regarded as correctly stating the law on no case to answer.

[16] Thus the question in the case of the fifth accused is whether there is some evidence direct or circumstantial evidence implicating the accused in the charged offence.

[17] The evidence implicating the accused comes from his own interview under caution. He admits to getting into the vehicle with those who intended to "look for money", he saw them break into the house while he sat in the car intoxicated. He later confessed to going inside the house and to being "involved the breaking of the house at Malele and also threatened the family".

[18] I agree with Counsel assisting the fifth accused as amicus curiae that the confession is rather suspicious, it not being in the same vein as the rest of the statement but that is irrelevant to the present application. His confession is cogent evidence and it is not for this Court to decide on its merits or creditworthiness, that is a matter for the assessors and therefore I find that there is a case to answer for the fifth accused on the housebreaking charge.

Sixth Accused

[19] The sixth accused had in October 2007 made admissions to the offence of housebreaking in an interview under caution. This interview under caution was excluded form the evidence admissible at trial after a voir dire held immediately before the trial. On the depositions, there appeared to be no other evidence against the sixth accused.

[20] On the first day of the trial, the sixth accused was still in the dock and he remained in the dock for the five days that the prosecution case was conducted. On enquiring twice of the prosecution why he was there, I was told that the prosecutor was unable to get his superiors to sign a nolle prosequi to put an end to the case against him particularly.

[21] It may be that on occasion the DPP or his Deputy are unavailable either to prepare or sign a nolle prosequi or even to instruct Counsel to enter a nolle verbally however this does not absolve prosecuting Counsel from acting in a fair and just manner according to his oath and to take it upon himself to offer no evidence or to enter a nolle prosequi if the circumstances so demand. That is indeed one of the roles of a prosecutor; in presenting his case fairly and fearlessly, he must as a corollary "withdraw from the arena", if he considers that the case against a particular accused is unsustainable. And in this case there was no evidence against the sixth accused once his interview under caution was ruled to be inadmissible, and this fact must have been known to the prosecutor. (Indeed he admitted as much during the submissions on no case yesterday).

[22] The matter was raised as a matter of concern by Counsel for the sixth accused at the end of the second day of trial and this Court remarked that it too was most concerned; yet nothing was done. It was rather a shocking state of affairs. The sixth accused sat in the dock through five days of a murder/robbery trial when he not only had not been charged with murder or robbery but on the relatively minor charge of housebreaking there was not one shred of evidence against him. It was outrageously unjust.

[23] It is not for this Court to intervene until the end of the prosecution case; section 231(1) requires the Court to wait until the "evidence of the witnesses for the prosecution has been concluded" before finding the accused has no case to answer and there appears to be no powers in the Criminal Procedure Decree to intervene before that. In any event it is for the prosecutor to conduct his prosecution as he sees fit and it is not for the Court to know that there be perhaps a surprise witness forthcoming or that relevant evidence in some manner would suddenly be revealed.

[24] Counsel could have easily used the provisions of section 49 of the Criminal Procedure Decree to enter a nolle verbally immediately after rejection of the sixth accused's caution interview. For him not to do so is thoughtless, perhaps lazy and in complete contravention of his oath to prosecute fairly.

[25] After submission yesterday, I found immediately that there be no case to answer and acquitted and discharged the sixth accused. He was to stay in the dock not a minute longer.

[26] In the circumstances, I order the prosecution to pay costs of $250 to the sixth accused to defray his expenses for attending a trial for 5 days that he did not have to attend. I consider that the prosecutor has unreasonably prolonged matters with respect to the sixth accused (in terms of section 150(3) of the Criminal Procedure Decree) and in any event this Order will "meet the interests of justice" (in terms of section 150(4)(d) of that Decree).

Paul K. Madigan
JUDGE

At Lautoka
5 August 2010