State v Noa - Judgement [2015] FJHC 938; HAC089.2010L (1 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

LAUTOKA CRIMINAL CASE NO. HAC 089 OF 2010L

STATE

vs

1. RAFAELE NOA
2. SIRELI LILO
3. ILIESA VAKABUA
4. ILIVASI NAVUNICAGI
5. EPARAMA TAMANIVAKABAUTA
   

Counsels : Mr. S. Babitu and Mr. Y. Prasad for State
Mr. S. Prakash for Accused No. 1
Ms. N. Karan for Accused No. 2
Mr. I. Romanu for Accused No. 3
Accused No. 4 – Tried in Absentia
Ms. N. Karan for Accused No. 5
Hearings : 17, 18, 19, 20, 23 to 26 November, 2015
Summing Up : 30 November, 2015
Judgment: 1 December, 2015

JUDGMENT

1. On 20 November 2015, not guilty pleas were entered by all accuseds on the following two counts in the following information:
   

COUNT ONE
Statement of Offence

MURDER: Contrary to Section 237 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

RAFAELE NOA, SIRELI LILO, ILIESA VAKABUA, ILIVASI NAVUNICAGI and EPARAMA TAMANIVAKABAUTA between the 21st and the 22nd day of August 2010 at Lautoka, in the Western Division, murdered JOHN LEONARD DASS s/o BENJAMIN BALRAM.

COUNT TWO
Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311(1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

RAFAELE NOA, SIRELI LILO, ILIESA VAKABUA, ILIVASI NAVUNICAGI and EPARAMA TAMANIVAKABAUTA between the 21st and the 22nd day of August 2010 at Lautoka, in the Western Division, in the company of each other robbed JOHN LEONARD DASS s/o BENJAMIN BALRAM of Assorted Jewelries worth $2,000.00, 5 gross BH 10 Cigarette valued at $250.00, Nike Canvas valued at $200.00, New Balance ladies canvas valued at $100.00, 2 Motorola Mobile Phones valued at $40.00, 2 Timex Wrist Watches valued at $200.00, 1 Maglite torch valued at $15.00, 100ml Pleasure Perfume valued at $80.00, Nivea, Avon, Pure Fiji Lotion valued at $20.00, 1 Black Bag containing new clothes valued at $300.00, 1 knapsack trolley bag valued at $50.00, 1 shoulder bag valued at $20.00, 1 gold ring valued at $300.00, 2 Jack Daniels valued at $155.00, 3 Quick Silver flip flops valued at $60.00 all to the total value of $3,790.00 the property of JACK LEONARD DASS s/o BENJAMIN BALRAM.

2. Yesterday, the three assessors returned with a unanimous guilty verdict on both counts against Accused No. 1, 4 and 5. On Accused No. 2, Assessor No. 1 found him guilty on both counts, while Assessor No. 2 and 3 found him not guilty of murder (count no. 1), but guilty of the alternative offence of manslaughter, and Assessor No. 2 also found him guilty of aggravated robbery (count no. 2). Assessor No. 3 found him not guilty of count no. 2. On Accused No. 3, Assessor No. 1 found him not guilty of murder (count no. 1), but guilty of the lesser offence of manslaughter, and also guilty of aggravated robbery (count no. 2). Assessor No. 2 and 3 found Accused No. 3 not guilty of murder or manslaughter, but guilty of aggravated robbery.
3. The law at this stage of the trial is section 237 (1), (2), (4) and (5) of the Criminal Procedure Decree 2009, which reads as follows:
   

"...237 (1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors...

(4) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be –

(a) written down; and

(b) pronounced in open court.

(5) In every such case the judge's summing up and the decision of the court together with (where appropriate) the judge's reasons for differing with the majority opinion of the assessors, shall collectively be deemed to be the judgment of the court for... all purposes..."

4. In Ram Dulare, Chandar Bhan and Permal Naidu vs Reginam [1956 – 57], Fiji Law Report, Volume 5, pages 1 to 6, page 3, the Fiji Court of Appeal, said the following, on an equivalent section of the then Criminal Procedure Code:
   

"...In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a Jury in a trial. In the case of the King v. Joseph 1948, Appeal Case 215 the Privy Council pointed out that the assessors have no power to try or to convict and their 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 the assessors is that of the trial Judge and the trial judge alone and in the terms of the Criminal Procedure Code, section 308, he is not bound to follow the opinion of the assessors..."

5. In Sakiusa Rokonabete v The State, Criminal Appeal No. AAU 0048 of 2005, the Fiji Court of Appeal said as follows:
   

"...In Fiji, the assessors are not the sole judge of facts. 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..."

6. I have reviewed the evidence called in the trial, and I have directed myself in accordance with the Summing Up I gave the assessors yesterday. The assessors' verdict was not perverse. It was open to them to reach such conclusion on the evidence. However, I am not bound by their opinion. On my analysis of the case based on the evidence, and on my assessment of the credibility of the witnesses, I agree with the unanimous guilty verdict of the three assessors on Accused No. 1, 4 and 5 on both counts. On Accused No. 2, I accept the opinions of Assessor No. 2 and 3 that he is not guilty of murder, but guilty of manslaughter. I reject Assessor No. 1's opinion that he is guilty of murder. On count no. 2, I accept Assessor No. 1 and 2's opinion that Accused No. 2 is guilty, and I reject Assessor No. 3's opinion that he is not guilty. On Accused No. 3, I accept Assessor No. 2 and 3's opinion that he is not guilty of murder and manslaughter, and reject Assessor No. 1's opinion that he is not guilty of murder, but guilty of manslaughter. I accept the three assessors' unanimous opinion that he is guilty on count no. 2.
   
7. My reasons are as follows.
   
8. As for Accused No. 4 and 5, both accuseds in their charge statements, admitted count no. 1 and 2 of the information. In their police caution interview statements, both Accused No. 4 and 5 admitted aggravated robbery, but denied murder. Given their confessions in their charge statements, I reject their denial of murder in their police caution interview statements. I find that they voluntarily gave their confessions in the charge statements, and the same was given with their own free will, and the confessions they made were true. I also accept that their confessions on aggravated robbery in their caution interview statements were given voluntarily and out of their own free will, and the same were true. I reject their denials of murder in the same, and rule the denials as untrue.
   
9. On Accused No. 1, he admitted in his caution interview statements that he committed aggravated robbery against Mr. Dass. On this issue, I find he gave his statement voluntarily, and they were the truth. Accused No. 1 denied murdering Mr. Dass in his police caution interview and charge statements. He also repeated the above denials on oath. He can only be made liable for the murder of Mr. Dass, on the principle of joint enterprise, and/or aiding and abetting the commission of murder. The three assessors had unanimously found Accused No. 1 guilty of murdering Mr. Dass, presumably on the principle of joint enterprise and/or aiding and abetting murder. The three assessors had rejected his denials of murder. The assessors are there to assist the trial judge, and I agree with their unanimous opinion that Accused No. 1 is guilty of count no. 1 and 2 in the information.
   
10. As for Accused No. 2, I accept Assessors No. 2 and 3's opinion that he is not guilty of murder, but guilty of the lesser offence of manslaughter. I reject Assessor No. 1's opinion that he's guilty of murder. On oath, Accused No. 2 denied both count no. 1 and count no. 2. In his caution interview and charge statement he denied murder. However, in his interview statements, he admitted he participated in the attack on the old man, at the material time. He admitted when he broke into Mr. Dass's house, he went into his bedroom, saw him asleep, forcefully held him to prevent him from struggling and shouting, did nothing when two of his friends were punching Mr. Dass in the ribs, assisted in tying his hands and legs, and then carried him to the girl's bedroom. It would appear the assessors accepted that he gave the above statements voluntarily and they were the truth. I accept the above position, and I accept the majority view that Accused No. 2 is not guilty of murder, but guilty of the manslaughter of Mr. Dass. I also accept that he confessed to aggravated robbery in his interview and charge statements, and I accept the same were given voluntarily and they were the truth.
    
11. As for Accused No. 3, the three assessors unanimously found him guilty of count no. 2. I accept the three assessors' unanimous opinion on count no. 2. On count no. 1, Assessor No. 2 and 3, found Accused No. 3 not guilty of murder and manslaughter. Assessor No. 1 found him not guilty of murder, but guilty of manslaughter. I accept the majority view that Accused No. 3 is not guilty of murder and not guilty of manslaughter. In his interview and charge statements, Accused No. 3 said, he was outside Mr. Dass's house and was the "look-out" throughout.
    
12. In summary, my judgment are as follows:
    
    • (i) Accused No. 1 : found guilty of count no. 1 and 2.
      
    • (ii) Accused No. 2 : found not guilty of murder, but guilty of manslaughter, and guilty of count no. 2.
      
    • (iii) Accused No. 3 : found not guilty of murder and not guilty of manslaughter, but guilty of count no. 2
      
    • (iv) Accused No. 4 : found guilty of count no. 1 and 2.
      
    • (v) Accused No. 5 : found guilty of count no. 1 and 2.
      
13. I now formally convict the accuseds as follows:
    
    • (i) Accused No. 1, 4 and 5 are formally convicted of the murder of Mr. John Leonard Dass between 20 and 21 August 2010, at Lautoka in the Western Division (count no. 1), and the aggravated robbery on him at the same time (count no. 2);
      
    • (ii) Accused No. 2 is acquitted of the murder of Mr. John Leonard Dass between 20 and 21 August 2010, at Lautoka in the Western Division, but is convicted of his manslaughter, at the same time, and is convicted on the aggravated robbery (count no. 2) against him, at the same time.
      
    • (iii) Accused No. 3 is acquitted of the murder and/or manslaughter of Mr. John Leonard Dass between 20 and 21 August 2010, at Lautoka in the Western Division, and is convicted of the aggravated robbery on him, at the same time (count no. 2).
      

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Lautoka.
Solicitor for Accused No. 1 : Legal Aid Commission, Suva.
Solicitor for Accused No. 2 : N. Karan, Barrister and Solicitor, Suva.
Solicitor for Accused No. 3 : I. Romanu, Barrister and Solicitor, Suva.
Solicitor for Accused No. 4 : Tried in Absentia
Solicitor for Accused No. 5 : N. Karan, Barrister and Solicitor, Suva.