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State v Boila [2005] FJHC 143; HAC0032X.2004S (17 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0032 of 2004S

STATE

v.

SENIJIELI BOILA
PITA NAINOKA

Hearing: 10th June 2005
Ruling: 17th June 2005

Counsel: Ms N. Tikoisuva for State
Both Accused in Person

RULING

This is an application for the consolidation of two Informations in respect of each of the accused persons. They were originally jointly charged and jointly transferred to the High Court. A trial date was set, but one of the accused, who was on bail, absconded. The State then decided to sever the charges and proceed against each separately. On the day of the trial, the remaining accused also failed to appear. Now both accused have been arrested and are in custody. The State seeks to proceed against both jointly.

The Informations allege the identical charge against each accused. The original Information (when the accused were jointly charged) read as follows:

FIRST COUNT

Statement of offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a)(b) of the Penal Code, Cap. 17.

Particulars of Offence

SENIJIELI BOILA and PITA NAINOKA together with others on the 1st day of March, 2004 at Nasinu in the Central Division, being armed with cane knives, robbed AMINIASI SOLOMONE, of the sum of $48,878.47 in cash and $17,201.05 in cheques, all of the total value of $66,079.52, the property of R B Patel Supermarket and immediately before the time and at the time of the robbery did use personal violence on the said AMINIASI SOLOMONE.

SECOND COUNT

Statement of Offence

UNLAWFUL USE OF MOTOR VEHICLE: Contrary to Section 292 of the Penal Code, Cap. 17.

Particulars of Offence

SENIJIELI BOILA and PITA NAINOKA and others on the 29th day of February 2004 at Nasinu in the Central Division, unlawfully and without a colour of right but not so to be guilty of stealing, took for their own use a private motor vehicle registration number DD696 the property of RAFFLES TRADEWINDS HOTEL.

The disclosed evidence suggests that the State will be alleging that this was a case of joint enterprise, that both accused persons shared a common intention to carry out an armed robbery at the RB Patel Supermarket, and that they unlawfully used a vehicle to enable the carrying out of the robbery.

In their interviews the accused persons refer to each other. The substance of the objection of the accused to joinder is that a joint trial will be prejudicial because the evidence of one caution interview will be considered in the evidence against the co-accused. I explained to them that such evidence was only admissible against the maker of the statement, and that as a matter of law such a direction would be made to the assessors.

Section 121(a) of the Criminal Procedure Code provides that persons who are alleged to have committed an offence together, may be charged together. There are many public interest reasons why such offenders should be tried together. One is the public expense involved in conducting several trials based on the same law and evidence. Another is that witnesses would be greatly inconvenienced by having to give the same evidence many times. A third is that a joint trial is more likely to lead to uniform treatment in respect of all connected defendants. Lastly, separate trials usually lead to delay in the hearing of cases (R v. Moghal 65 Cr. App. R. 56).

These considerations are certainly relevant here. The same evidence would have been relevant in each trial, had the State proceeded separately. There has already been delay caused by the non-appearance of both accused. Separate trials are likely to lead to further delay. This in turn would lead to a longer remand period for the accused. Lastly, the evidence against each accused rests on the evidence of similar witnesses. Calling them twice would lead to public expense and inconvenience.

For these reasons I consider that the two accused should be jointly tried. I see no prejudice to them in a joint trial, particularly when the assessors will be appropriately directed on the value of confessions. The State may file amended information forthwith.

Nazhat Shameem
JUDGE

At Suva
17th June 2005