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State v Waqabaca [2010] FJHC 404; HAC054.2009S (3 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 054 OF 2009S

STATE

V

1. MESULAME WAQABACA
2. TIKO UATE
3. ISIRELI LEDUA NAULIVOU
4. LOLOHEA NAPAU KAULOTU
5. FILIPE JITOKO

Counsels: Mr. L. Fotofili for the State
Ms. S. Vaniqi for Accuseds No.1 and 5
Ms. K. Vukikomoala for Accuseds No. 2 and 3
Mr. V. Tuberi for Accused No. 4

Hearings: 7th to 27th July 2010
Summing Up: 2nd August, 2010
Judgment: 3rd August, 2010

JUDGMENT

1. Following a trial lasting approximately 15 days, the three assessors have returned with an unanimous verdict of guilty of "murder", contrary to sections 199 and 200 of the Penal Code, Chapter 17, for Mesulame Waqabaca and Tiko Uate, and not guilty of murder, or the lesser offence of manslaughter, contrary to sections 198 and 201 of the Penal Code, for Isireli Ledua Naulivou, Lolohea Napau Kaulotu and Filipe Jitoko.

2. I have reviewed the evidence called in the trial, and I have direction myself in accordance with the summing up, I gave the assessors yesterday. I find that the verdict of the assessors was not perverse. It was open to them, to reach such conclusion, on the evidence. I accept their verdict.

3. Simione Navulatamata was returning from work, as a hair dresser in Nausori Town, on 16th May 2009. He was the sole breadwinner for his family. He was taking a short cut to his home near Makoi Methodist School, after 8pm. Unbeknown to him, was a drinking party drinking nearby. The party consisted of Mesulame Waqabaca, Tiko Uate, Isireli Ledua Naulivou and Filipe Jitoko. On hearing Simione coming down the school's driveway, Mesulame called on the party to rob Simione.

4. Only Mesulame and Tiko proceeded to jointly assault and rob Simione of some personal items. Tiko rushed forward and held Simione together, while Mesulame rained punches on him. A punch from Mesulame landed on Simione's left side of the head, causing severe brain injuries, resulting in his death. Isireli and Filipe did not participate in the assault on Simione. Lolohea was, at the time, drinking grog with others.

5. I find Mesulame Waqabaca and Tiko Uate guilty of murder, and I convict them accordingly. I find Isireli Ledua Naulivou, Lolohea Napau Kaulotu and Filipe Jitoko not guilty of murder, nor the alternative offence of manslaughter, and I acquit them accordingly.

Salesi Temo
Acting Judge

AT Suva
3rd August 2010