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State v Fong [2005] FJHC 97; HAC0011D.2005S (28 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


Criminal Case No: HAC0011 of 2005S


STATE


v.


PATRICK FONG;
SAKIUSA BASA; and
SENIJIELI BOILA


Hearing: 19th April 2005
Ruling: 28th April 2005


Counsel: Ms P. Madanavosa for State
All Acused in Person


RULING


This is an application by all accused persons, to quash the Information, on the ground that there is no, or insufficient evidence to support the charges. The State also applies to consolidate two trials by filing an amended Information. The accused Saimone Rokotunidau objects to consolidation.


Both cases (HAC0011 of 2005 and HAC of 2005) are in relation to an alleged armed robbery at the ANZ Bank at Samabula, on the 15th of August 2003. The 4th Accused Saimone Rokotunidau was transferred to the High Court on the charges arising out of the same incident. Indeed, the proposed amended Information joins Rokotunidau on each of the seven counts of the Information.


The evidence disclosed to the court and to the accused, is that two or more men, wearing balaclavas smashed the door glass of the bank with a pinch bar, and entered the bank carrying a pistol. Money was taken from seven persons (thus the seven counts on the Information). One witness, Dharam Jeet, saw 4 masked men entering the bank. Three carried axes, and one held a pistol. Money was taken from tills, and from customers waiting to deposit money. Other witnesses also saw 4 masked men.


A witness Natasha Wilson was in a vehicle parked next to the bank, when a Rai 4 Honda, silver grey in colour also parked in front of the bank. Four men from the vehicle ran into the bank. The driver of the vehicle remained in the driver’s seat. The men in the vehicle were carrying axes, beer bottles and a bar. At least one of them had his face covered. This witness later identified the driver, and another man, from police photographs. It is not clear whom she identified and it does not appear that she was asked to attend an identification parade.


A taxi driver Aporosa Vosalave gave a statement to police that on the night of the 14th of August 2003, he was driving his taxi on the night shift. At 4.30am on the 15th of August, he took a call from Patrick Fong (2nd Accused) and picked up two men at a roundabout in Kinoya. He then went to the 2nd Accused’s house and was told by him to go to the house of one Anare. The 2nd Accused followed in another car. Later the witness went to Browning Street in Raiwaqa where one Peni Matairavula got in. He was then told by the 2nd Accused to pick up “a job” from the junction of Tuvana Place and Tubou Street at 10.15am. In the vehicle, the witness saw Peni Matairavula holding a loaded gun. He said that Matairavula told him he would shoot the others if anything happened. He then got off the vehicle, and the other two boys were dropped at Savai Place, Kinoya. The witness then returned to his taxi base where the 2nd Accused told him of the planned robbery, and told him to go with “Anare” to “pick up that job.” At about 10am the next day, the witness and another taxi-driver, Manasa picked up two boys walking up a driveway in Tuvana Place. One of them was one Peni Tukai. He then went to Kinoya and dropped them off at a house at Savai Place. While waiting there at 11.30am he saw 6 men including Peni Matairavula in a shed beside the house. In a later statement he said they were “re-distributing” the money which was allegedly the proceeds from the robbery.


On the 3rd of September 2003, he identified Senijieli Boila (1st Accused) and Sakiusa Basa (3rd accused). In his statement of the 3rd of September 2003, he said that the 3rd Accused was the driver of the getaway vehicle, and that the 1st accused was one of the men he had picked from Savai Place early on the 15th of August, and dropped at the 2nd Accused’s house at Kinoya. He was also in the shed when the money was being re-distributed.


On the 9th of September he attended another identification parade and identified Peni Matairavula as the person who had the pistol in the early hours of the 15th of August.


The taxi driver Anare Maulu also gave a statement but he was unable to identify any of the passengers picked up by him or by Aporosa.


All the Accused were interviewed under caution. The 1st Accused denied any involvement in the robbery. The 2nd Accused made full admissions about the planning and assisting in transporting the robbers. He also admitted receiving a share of the proceeds of the robbery. This accused challenges the admissibility of the confession.


The 3rd Accused denied the allegations. The last accused Rokotunidau made full admissions as to the planning, the robbery and the sharing of the proceeds.


From the evidence of the disclosed statements, it seems clear that there is direct evidence implicating the 2nd and 4th Accused in the form of their confessions, and circumstantial evidence against all accused, in particular the 1st and the 3rd. It is true, as the accused submit, that the evidence of Aporosa Vosalave may be evidence of an accomplice, especially when he admits prior knowledge of the robbery, and when his wife has provided a statement that he gave her $200 shortly after the robbery. However, it is open to assessors to accept his evidence without corroboration, after they have been appropriately warned. This evidence places the 1st and 3rd Accused circumstantially in close proximity to the robbery, certainly at the planning stage. His evidence (if accepted) can be put before assessors for possible inferences to be drawn, as to whether their participation constitutes an aiding and abetting as a matter of fact. Appropriately directed, the assessors can either draw such inferences, or reject the suggestion that inferences can be drawn. Clearly, there is evidence implicating each accused on each count of the Information. There is no reason to quash the Information.


It follows, that the State alleges that each accused was jointly involved in the same robbery and that therefore the evidence is based on the same facts. To call evidence twice on two separate trials is uneconomical. It may also result in a real injustice if there are different results, especially if they are heard by different judges.


It must be in the most exceptional cases that accused persons jointly charged with the same offences and on the same facts should be separately charged. This is not such a case.


I have considered the possible prejudice arising from the fact that the 2nd and 4th Accused implicate the others in their confessions. Any such prejudice can be cured by strong directions to the assessors.


It is not in the interests of justice to permit separate trials for the accused. The application to consolidate is allowed.


Nazhat Shameem
JUDGE


At Suva
28th April 2005


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