State v Seru [2015] FJHC 830; HAC117.2015 (28 October 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 117 OF 2015

BETWEEN:

STATE

AND:

PAULA BARAVILALA SERU

Counsel : Mr. Alvin Singh for State,
Mrs. Laisani Tabuakuro for the Accused

Date of Hearing : 30th of September 2015
Date of Ruling : 28th of October 2015

RULING

1. The Prosecution files this notice of motion seeking an order to consolidate this action with the High Court criminal action of State v Sosiceni Toa (HAC 116 of 2015). The notice of motion is being supported by an affidavit of DC Filipe Ratini, stating the grounds of this application.
   
2. The accused person objects for this application of consolidation and filed an affidavit stating his grounds for objections. Subsequently, the matter was set down for hearing on 30th of September 2015, where both counsel for the prosecution and the accused requested to conduct the hearing by way of written submissions. I accordingly directed the parties to file their respective written submissions. However, none of the parties have filed any written submissions as per the direction. Hence, I presume that the parties opted not to file any written submission. I will now proceed with my ruling as follows.
   
3. The accused is originally being charged with one count of Attempted unlawful importation of illicit drugs, contrary to Section 5(a) of the Illicit Drugs Control Act and Section 44(1) of the Crimes Decree and one alternative count of Attempted unlawful Importation of Illicit Drugs, contrary to Section 9 and 5(a) of the Illicit Drugs Control Act 2004.
   
4. The prosecution then filed this notice of motion seeking an order to consolidate this action with the HAC 116 of 2015 and filed a proposed consolidation of information as follows,
   

First Count

Attempt Unlawful Importation of Illicit Drugs, contrary to Section 4(1) of the Illicit Drugs Control Act 2004 and Section 44(1) of the Crimes Decree 2009,

Particulars of Offence

"Sosiceni Toa, between the 9th of July 2015 and the 13th of July 2015 together with persons unknown, attempted to import illicit drugs, namely Methamphetamine weighting approximately 20.3 Kg into the Republic of Fiji"

Second Count,
(Alternative to Count 1)

Attempt Unlawful Importation of Illicit Drugs; Contrary to Section 9 and 4(1) of the Illicit Drugs Control Act 2004,

Particulars of Offence

Sosiceni Toa, between the 9th of July 2015 and the 13th of July 2015, together with persons unknown, attempted to import illicit drugs, namely Methamphetamine weighting approximately 20.3 Kg into the Republic of Fiji,

Third Count,

Attempted Unlawful Importation of Illicit Drugs; Contrary to Section 5(a) of the Illicit Drugs Control Act 2004 and Section 44(1) of the Crimes Decree 2009,

Particulars of Offence

Sosiceni Toa and Paula Baravilala Seru, on the 13th of July 2015, in Nadi, Western Division, did attempt to possess illicit drugs, namely Methamphetamine weighting approximately 20.3Kg.

Fourth Count
Alternative to Count 3,

Attempted Unlawful Importation of Illicit Drugs, Contrary to Section 9 and 5(a) of the Illicit Drugs Control Act 2004,

Particulars of Offence,

Sosiceni Toa and Paula Baravilala Seru, on the 13th of July 2015, in Nadi, Western Division, did attempt to possess illicit drugs, namely Methamphetamine weighting approximately 20.3Kg.

5. The learned counsel for Sosiceni Toa in HAC 116 of 2015 informed the court that Mr. Toa has no objection for this application of consolidation.
   
6. The accused filed an affidavit in opposition, stating his grounds of objection. He stated in his affidavit that neither he nor his solicitor sure about the nature of the charges and need more particulars from the prosecution. The accused stated that the application for consolidation is premature and the prosecution is first required to properly inform him about the correct allegation against him.
   
7. In view of the affidavit filed by the accused, his main objection is founded on the ground that he was not provided with adequate particulars of the charge and this application for consolidation is premature.
   
8. Section 60 of the Criminal Procedure Decree stipulates the procedure for joinder of charges and information, where it states that;
   

"The following persons may be joined in one charge or information and may be tried together —

1. Persons accused of the same offence committed in the course of the same transaction;
   
2. Persons accused of an offence and persons accused of –
   

i. aiding or abetting the commission of the offence; or

ii. attempting to commit the offence;

100. Persons accused of different offences provided that all offences are founded on the same facts, or form or are part of a series of offences of the same or a similar character; and
     

4. Persons accused of different offences committed in the course of the same transaction,
   

9. Lord Morris in Director of Public Prosecution v Merriaman ( 1972) 56 Cr. App. R,766) has defined the "joint charge", where his lordship found that;
   

"It is important to consider what is meant by a joint charge. In my view, it only means that more than one person is being charged and that within certain rules of practice or convenience it is permissible for the two persons to be named in one count. Each person, however, being charged with having himself committed an offence. All crime is personal and individual, though there may be some crimes (of which conspiracy is an example) which can only be committed in co-operation with others. The offences charged in the present case were individual charges against each of the brothers. Each is a separate individual who cannot be found guilty unless he personally is shown to have been guilty".

10. The purpose of joining of charges and information in one action has discussed in Robert William Lack (1977) 64 Cr.App. R. 172),where the Lord Chief Justice held that;
    

"It has been accepted for a very long time in English practice that there are powerful public reasons why join offences should be tried jointly. The importance is not merely one saving time and money. It also affects the desirability that the same verdict and the same treatment shall be returned against all those concerned in the same offence. If joint offences were widely to be tried as separate offences, all sorts of inconsistencies might arise. Accordingly, it is accepted practice, from which we certainly should not depart in this court today, that a joint offence can properly be tried jointly, even though this will involve inadmissible evidence being given before the jury and the possible prejudice which may result from that. Of course the practice requires that the judge in such a case should warn the jury that the evidence is not admissible".

11. Justice Shameem in The State v Ashneel Prasad & others ( HAM 127 of 2008) held that both the common law and the statues have allowed the prosecution to charge the principle offenders and secondary offenders in one charge or information provided there is sufficient evidential and factual nexus in relation to each accused, and provided there is no prejudice to the accused.
    
12. In view of the judicial precedents discussed above, it is my opinion that the court is required to consider two main factors in an application of this nature. The first is that whether there is sufficient evidential and factual nexus in relation to each accused. The second factor is that no prejudice will cause to the accused person.
    
13. In view of the proposed consolidated information, it appears that the accused is charged with Sosiceni Toa for one count of "Attempted unlawful importation of illicit drugs" contrary to Section 5(a) of Illicit Drugs Control Act and Section 44(1) of the Crimes Decree and for one alternative count of "Attempted unlawful importation of illicit drugs' contrary to Section 9 and 5(a) of the Illicit Drugs Control Act.
    
14. D.C. Filipe Ratini deposed in his affidavit that the accused went with Sosiceni Toa to the DHL bond at the Nadi International Air Port to collect the consignment from the custom. Subsequently they got into their vehicle and drove towards Legalega area, where they hid the consignment in a sugar cane farm. Accordingly, it appears that the charge against the both accused persons are founded on the same transaction.
    
15. The accused did not advance any other grounds of objections apart from the ground that neither the accused nor his solicitor understands the correct nature of the offence. It appears that the prosecution has properly served him the disclosure and if the counsel requires further particulars, she should have requested the prosecution the same. Therefore, I do not find any other compelling or reasonable reason to determine that this proposed consolidation would cause prejudice to the accused person.
    
16. In my conclusion, I grant leave to the prosecution to consolidate this action with the High Court criminal action of State v Sosiceni Toa (HAC 116 of 2015).
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
28th of October 2015

Solicitors : Office of the Director of Public Prosecutions
K Law for the accused person,