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State v Haryono [2004] FJHC 131; HAC0023D.2003S (11 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0023 OF 2003S

STATE

v.

SLAMET HARYONO

Hearing: 9th August 2004
Ruling: 11th August 2004

Counsel: Ms K. Bavou for State
Ms B. Malimali for Accused

RULING

The defence makes an application under section 293 of the Criminal Procedure Code. That section provides:

“When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused ... committed the offence, shall, after hearing, if necessary, any arguments which the barrister and solicitor for the prosecution or the defence may desire to submit, record a finding of not guilty.”

The test at this stage is whether there is evidence, relevant and admissible evidence, that the accused committed the offence. Weight and credibility at this stage of the trial, are of limited relevance.

The Court of Appeal in State v. Mosese Tuisawau Cr. App. 14 of 1990 said, at p.11:

“In order to come to the conclusion that there was some evidence direct or circumstantial, and irrespective of its weight, credibility or its tenuous nature it must be shown that the evidence in question is relevant, admissible and is in totality inculpatory of the accused. This means that the evidence in its totality must at least touch on all the essential ingredients of the offence.”

Counsel for the accused submits that the police forensic evidence is so poor that no reliance can be given to it. Further she says that there is now evidence of a further statement made by the accused after he was charged, suggesting that his statement to the police was not correct. The second statement has not been exhibited as yet, although it has been marked for identification. No one has identified the statement as being the accused’s. In any event, which statement is more reliable is a question of fact at the end of the trial.

The prosecution case is that the accused, on the 1st of August 2003, murdered the deceased by stabbing him. The evidence of Dr. Prashant, the pathologist, is that the deceased died of a single, penetrating stab wound consistent with the knife exhibited by SP Rokobera. SP Rokobera said that he removed the knife to examine it for fingerprints. The accused was interviewed under caution. He admitted taking a knife to see the deceased on the vessel Doo An, and admitted stabbing the deceased. He said: “As soon as Supandi fell down I stood up and stabbed Agus Sunarto on the left side and left the knife on his back” and “I stabbed him only once.”

What weight should be put on this interview, and on the charge statement are matters for the assessors. The voluntariness of it is not disputed. The question as to whether the accused stabbed the deceased with malice aforethought is also a matter for the assessors. They will have before them the circumstantial and direct evidence of the nature of the weapon, the wound found by the pathologist, the accused’s admissions and other relevant evidence. What weight can be put on the forensic evidence and the evidence of the pathologist is a matter for the assessors. If they accept the caution interview and the contents, it is open to them to find the accused guilty.

There is sufficient evidence to put the accused to his defence.

Nazhat Shameem
JUDGE

At Suva
11th August 2004