State v Seru - Judgment [2016] FJHC 832; HAC32.2015 (16 September 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 32 of 2015

STATE

V

SIUTA SERU
1^ST ACCUSED

ASAELI RABOLECA
2^ND ACCUSED

Counsels: Mr. L. Fotofili for the State
Mr. A. Paka (L.A.C.) for 1^st Accused
Mr. I. Rakaria (L.A.C.) for 2^nd Accused

Dates of Conviction : 16 September 2016
Date of Judgment : 16 September 2016

JUDGMENT

[1] The two accused were tried in this Court on the following Information:

FIRST COUNT

STATEMENT OF OFFENCE

MURDER: Contrary to section 237 of the Crimes Decree 2009.

PARTICULARS OF OFFENCE

SIUTA SERU, on the 19^th August 2012 at Bua in the Northern Division murdered Babu Ram.

SECOND COUNT

STATEMENT OF OFFENCE

ATTEMPTED ARSON: Contrary to section 363 (as read with section 362) of the Crimes Decree 2009.

PARTICULARS OF OFFENCE

SIUTA SERU, on the 19^th August 2012 at Bua in the Northern Division, unlawfully attempted to set fire to a building or structure, namely the home of Babu Ram.

THIRD COUNT

STATEMENT OF OFFENCE

AGGRAVATED ROBBERY: Contrary to section 311 of the Crimes Decree 2009.

PARTICULARS OF OFFENCE

SIUTA SERU and ASAELI RABOLECA, on the 19^th August 2012 at Bua in the Northern Division robbed Babu Ram of approximately $350.00 cash.

[2] The two assessors (another having been discharged because of a conflict of interest) returned with opinions of guilty on each count against the first accused and guilty on the third count against the second accused.

[3] The court in directing itself on the summing up and in carefully reviewing the evidence, concurred with the assessors and convicted the first accused on the counts of murder, attempted arson and aggravated robbery and convicted the second accused on the count of aggravated robbery.

[4] The reasons for those findings are as follows:

[5] The main thrust of the prosecution case against the two accused were their respective interviews under caution in which each confessed to the crimes they were charged with along with an inculpatory answer to charge given by the first accused.

[6] In a pre-trial voir dire the Court had heard evidence relating to the generation of those records including evidence from each accused and the Court was satisfied beyond reasonable doubt that the records were made voluntarily without unfairness and without breach of their Constitutional rights.

[7] Those issues were then rehearsed in the trial on the general issue as is perfectly proper.

[8] The State called additional evidence which to a large degree corroborated the inculpatory answers given by both of the accused in their interviews; not that there is any requirement for corroboration.

[9] Two separate witnesses gave evidence of the first accused’s confession to them of his implication in all three crimes. Neither of these witnesses were persons in authority.

[10] The answers of the second accused in his interview under caution clearly implicated him as a joint and willing party in the robbery along with the first accused, a robbery conducted with force.

[11] One difficulty raised in this trial was the pre-trial intervention of a third party confessing to the murder and attempted arson. He claimed to have had this confession forced out of him by Police assaults and claims that his confession is not true. Police enquiries subsequently substantiated his claim of abuse and as a consequence the D.P.P. withdrew all charges against this third party.

[12] The Court has no doubt whatsoever that this “confession” was false and his subsequent testimony in this trial further strengthened the evidence against the two accused.

[13] Both accused gave evidence in their defence, both claiming that their admissions were fabricated and that they were forced to sign the records. Nothing either of the accused said caused me to doubt the prosecution evidence.

[14] Each of the accused called an alibi witness, having complied with the alibi procedure as set out in the Criminal Procedure Decree.

[15] Whilst an accused does not have to prove anything to the Court, I could not believe the evidence of either accused and their “alibi” witnesses were of no assistance to them whatsoever. The wife of the second accused gave evidence which was fundamentally different from her earlier Police Statement and when this was drawn to her attention she claimed that the Police had fabricated her statement to them. The Court could not believe this.

[16] The Court finds that the State has proved the case against each accused beyond reasonable doubt.

[17] That is the Judgment of the Court.

P. K. Madigan
Judge

At Labasa
16 September 2016