State v Naitini [2010] FJHC 515; HAC013.2009 (18 November 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 013 OF 2009

BETWEEN:

STATE
PROSECUTION

AND:

1. KILIONI NAITINI
2. ORISI RAOGO
3. INOKE VUETIVITI
4. SOLOVENI TABANIDALO
ACCUSED PERSONS

Counsel: State - Mr. Kaisami/Mr. T Ravuniwa
Accused Persons - In Person

Date of Judgment: 18th November 2010

JUDGMENT

The Accused Soloveni Tabanidalo was charged with the other three accused persons with one count of manslaughter, and with one count of robbery with violence.

The other 3 accused persons pleaded guilty and trial proceeded against the 4th accused, Soloveni Tabanidalo.

After deliberating for 45 minutes, the three assessors have given their unanimous opinions, that the accused is not guilty of the first count of manslaughter and that he is guilty of the second count of robbery with violence.

I direct myself in accordance with my summing up and evidence adduced at the trial.

It is the duty of the Judge to reach his own conclusion on the evidence placed before Court, in that the opinion of the assessors also will carry great weight. In Ram Dulare & others v R [1955] 5 FLR 1 the Court of Appeal referring to Joseph v The King [1948] AC 215said:

"... [the assessors] duty is to offer opinions which might help the trial Judge. The responsibility for arriving at a decision and of giving judgment in a trial by the [High] Court sitting with assessors is that of the trial Judge and the trial Judge alone and ... he is not bound to follow the opinion of the assessors."

In Sakiusa Rokonabete v The State Criminal Appeal No. AAU0048/05, the Court of Appeal observed:

"In Fiji, the assessors are not the sole judges of fact. The judge is the sole judge of fact in respect of guilt and the assessors are there only to offer their opinions based on their views of the facts."

In terms of section 237(2) of the Criminal Procedure Decree, when giving the judgment, the Judge is not bound to confirm to the opinions of the assessors. Further in terms of section 237(4), if the Judge does not agree with the majority opinions of the assessors, the judge should give reasons for deferring with the majority opinion.

In this case the only evidence against the accused on both counts of manslaughter and robbery with violence, was his confession contained in his caution interview statement. The officer who recorded the caution interview statement testified to the fact that it was made voluntarily, and that the accused was never assaulted or forced.

The accused giving evidence in Court said, that he was assaulted at Savusavu Police Station and was forced to admit committing the offences.

On the voluntariness of the caution interview statement, more evidence were revealed at the trial proper, than at the voir dire inquiry which was held before.

Prosecution relies on the medical report of the accused, to show that the accused was not assaulted in Savusavu where his statement was recorded, but was assaulted in Suva when he was arrested. The evidence of the accused was that the doctor, when writing the history given by the accused, has written what police officer had told the doctor.

According to medical report which was produced in evidence as exhibit 3, on the first page, the police officer who took the accused to the doctor has written as the background, that the accused was alleged to have been assaulted by police in Suva on 10/9/2009, whilst being arrested at his home in Nadonumai.

On the second page of the medical report, in column D(10), where history as related by the person to be examined to be written, the doctor has said; "history of assault by fellow police officers in Suva, whereby he was injured on chest and back by blunt trauma."

When you read the wording of what the doctor has written, with the version of the accused, there is a doubt as to whether the doctor has written what the police officer said, or what the accused related to the doctor. The doctor who prepared the report was not called to give evidence.

Further, the recording of the caution interview statement commenced on 12/9/2009, where on that date, accused was fit to make the statement. On 12/9/2009 when the accused was asked whether he wanted to be medically examined, or whether he was sick, he had answered negative. The police officer who recorded his statement said in his evidence, that the recording of the statement was adjourned on 12/9/2009 to 15/9/2009, as the accused was not well, and for him to rest. But in cross examination, and on perusing the caution interview statement it was revealed that the recording was adjourned on the 12th, not because that the accused was not well, but to get the files down from Labasa.

When the recording of the statement resumed on 15/9/2009, it was revealed that the accused was sick. On questioning, accused had complained that he was feeling pain on his ribs and he wanted to be medically examined. Therefore when he was taken to the doctor to be examined on the 15/9/2009, doctor found that there were injuries on the chest by blunt trauma.

Therefore there is a clear doubt, as to whether the accused was assaulted in Savusavu between 12 and 15/9/2009 as accused testified. The accused did not complain of pain or sickness on the 12/9/2009 when he was brought to Savusavu according to the caution interview statement itself. Hence it is doubtful, that the caution interview statement was made voluntarily.

The Accused giving evidence said that although he came to Savusavu with the other accused persons, he did not participate in committing any of the offences, as he did not like the idea of tying the security guard. The 1st accused who gave evidence on behalf of the defence also said, that the accused Soloveni did not take part in committing the offences, although he came from Suva to Savusavu with them. He further said, that at the police station when he really wanted to tell the police that Soloveni was not there, the police kept on beating him saying that he was lying.

The victim of the robbery Nam Bok Cho also said in evidence, that he saw only three persons at the time of robbery.

Apart from the said caution interview statement of the accused Soloveni, there is no evidence direct or circumstantial, to prove that this accused took part in the offences of robbery, or manslaughter.

Hence I find that the prosecution has failed to prove the counts one and two of the information beyond reasonable doubt. Therefore I agree with the assessors that the accused is not guilty of the offence of manslaughter in count no. 1. For the above reasons, I do not accept the opinions of the assessors that the accused is guilty of robbery with violence in count no. 2, as the prosecution has not proved it beyond reasonable doubt. Therefore I reject the opinions of guilty by the assessors on count no. 2.

Therefore the accused is acquitted on both counts no. 1 and 2 of the information.

Priyantha Fernando
Judge

At Labasa
18th November 2010