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State v Lautabui - Judgment [2002] FJHC 270; HAC009.2001S (2 February 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC009 OF 2001S

THE STATE

V

LEONE LAUTABUI;
JONASA TONAWAI; and
SEMESA ROKO

Hearing: 14th January 2002
Judgment: 2nd February 2002

Ms Hamilton-White and Mr. K. Tunidau for State
Mr. E. Veretawatini for 1st Accused
Mr. R. Matebalavu for 2nd Accused
Mr. N. Vere for 3rd Accused

JUDGMENT

Two of the Assessors have returned opinions that all accused are not guilty on all counts. One assessor has given his opinion that the 1st and 3rd accused are guilty on Counts 3 and 4 of Attempted Murder. However the facts relevant to the counts of Attempted Murder are the same as for the Murder, and because if the accused are guilty on the basis of a joint enterprise in respect of Counts 3 and 4, then it follows that the same joint enterprise existed in respect of the Murder Counts.

Taking all the evidence into account and after directing myself in accordance with my summing up, I regret that I cannot concur with the Assessors’ opinions.

I disagree with them for the following reasons. There is compelling evidence that all 5 persons, including the 3 accused were part of a joint unlawful plan to take over the Sawani Police Post and checkpoint. The plan may have been Nimacere’s plan, but I am of the opinion that the evidence of the long walk together, the evidence of a joint hijack of Ratu Sakiusa’s vehicle, the evidence of numbers being called at the time of the shooting and the evidence that all 5 left together after the shooting gives rise to a compelling case of a joint unlawful enterprise. I am satisfied of that beyond reasonable doubt.

I am further of the view that the shooting at Qiolevu Road was a probable consequence of the unlawful joint plan and that each accused by their reactions when the vehicles arrived, knew that. I am satisfied of that beyond reasonable doubt.

I am further of the opinion that each accused participated in this unlawful enterprise voluntarily and not under duress. I am satisfied beyond reasonable doubt that Leone Lautabui, Jonasa Tonawai and Semesa Roko, had many opportunities to remove themselves from the plan prior to the Qiolevu shooting, and that Nimacere’s threats, if they existed, were not of a continuing nature to instantly kill or injure the accused. I am satisfied of that beyond reasonable doubt.

The judgment of the Court is therefore as follows:

All 3 are convicted on each count accordingly.

Nazhat Shameem
JUDGE

At Suva
2nd February 2002