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State v Ratukana [2011] FJHC 352; HAC107.2009 (21 June 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 107 OF 2009

BETWEEN:

THE STATE

AND:

1. TOMASI RATUKANA
2. VILIKESA RATUSOKO
   

Counsels: Ms. L. Tabuakoro for the State
Both Accuseds In Person

Date of Hearing: From 6th to 16th June 2011
Date of Judgment: 21st June 2011

JUDGMENT

1. The trial commenced on 06/06/2011 and concluded on 20th June 2011. The Assessors unanimously found both Accused persons guilty for the offence of Robbery with Violence as charged.

2. I adjourned overnight to consider my judgment.

3. Section 203 (1) of the Criminal Procedure Decree makes provision for the Assessors.

"Trials before the High Court shall be by a judge sitting with assessors as provided in this part."

4. Section 237 states as follows:

"(1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The judge shall then give judgment, but in doing so shall not be

bound to conform to the opinions of the assessors.

(3) Notwithstanding the provisions of section 142 (1) and subject to

sub-section (2) where the judge's summing up of the evidence under the provisions of subsection (1) is on record, it shall not be necessary for any judgment (other than the decision of the court which shall not be necessary for any judgment (other than the decision of the court which shall be written down) to be given, or for any such judgment (if given) –

(a) to be written down; or

(b) to follow any of the procedure laid down in section 141; or

(c) to contain or include any of the matters prescribed by section 142.

(4) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be –

(a) written down; and

(b) pronounced in open court."

As per the above section the trial judge should make the final decision. In other words ultimate responsibilities all lies with the trial judge to decide after evaluating all the evidence before Court.

5. In Joseph v. The King (Privy Council) [1948] Appeal Case 215:

"The learned Chief Justice does not appear to have brought his own mind to bear on the question of the guilt or innocence of the accused. He left the appreciation of evidence to the assessors, and accepted their conclusion as the verdict of a jury which bound him, instead of regarding it merely as an opinion which might help him in arriving at his own conclusion. The appellant was entitled to be tried by the judge and he has not been so tried and, in the circumstances, the only course open to the Board was to advise His Majesty to allow the appeal and quash the conviction and sentence."

6. In Ram Dulare & others v. R [1955] 5 FLR 1:

"It is clear that the legislature has given a trial Judge the widest powers to accept or reject the opinions of sitting with him. These powers are discretionary. From the terms of the judgment, the learned trial Judge made it quite clear why he came to his decision in this case and why it was that he was unable to accept the opinion of the assessors.

In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a Jury in a trial. In the case of the King v. Joseph 1948, Appeal Cases 215 the Privy Council pointed out that the assessors have no power to try or to convict and their duty is to offer opinions which might help the trial judge. The responsibility of arriving at a decision and of giving judgment in a trial by the Supreme Court sitting with assessors is that of the trial Judge and the trial Judge alone and in the terms of the Criminal procedure Code, section 308, he is not bound to follow the opinion of the assessors."

7. In Sakiusa Rokonabete v. The State Criminal Appeal No. AAU0048/05, the Court of Appeal observed:
   

"In Fiji, the assessors are not the sole judges of fact. The judge is the sole judge of fact in respect of guilt and the assessors are there only to offer their opinions based on their views of the facts."

8. In Setevano v. The State [1999] FJA 3 at 5, the Court of Appeal stressed that the reasons of the presiding trial judge:
   

'must be cogent and they should be clearly stated. In our view they must also be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial."

9. I direct myself in accordance with the law and the evidence which I discussed in my summing up to the assessors.

10. Both Accused persons were charged under section 293 (1) (b) of the Penal Code for Robbery with Violence. The main ingredients of the offence are well discussed in the summing up. To state briefly the prosecution should prove that:

(a) these Accused persons

(b) taken things

(c) from another

(d) without the consent

(e) by use of threat or violence.

11. In this case there is no dispute that some unidentified persons entered the residence of Sahid Hassan and taken the gun, cash and cheques. The total value is $14,700.

12. The most important element to be proved is the identity of the assailants.

13. Prosecution led 13 witnesses to prove their case. 6 of them were lay witnesses. 3 of them were present at the time of the incident but none of them had identified any of these suspects.

14. None of the Police witnesses or lay witnesses had identified these two Accused persons.

15. The only material before the Court is the confessions of the Accused persons.

16. Both Accused persons challenged the admissibility of the confession, therefore a voir dire inquiry held and found the confessions admissible at the end of the inquiry.

17. Admitting confession does not mean all the contents are accepted as evidence. The Prosecution must prove the contents of the confession. If the Prosecution solely depends on the confession to prove the main ingredients of the offence the onus is higher.

18. The 1st Accused in his confession said that he got a call from Saimoni Rokotunidau to get a gun from a home at Nakasi. 1st they travelled in a Pajero thereafter they changed into a G-Touring car as per the 1st Accused, Saimoni, Peni Tukai and the 1st Accused had travelled in the car. 1st Accused stood guard when the others forced open the door and went downstairs. When they returned they returned with two bags of money and 2 guns. Thereafter they fled away.

It should be noted that the eye witnesses says that there were 4 people came but the 1st Accused says only 3 people.

There is a serious discrepancy between the evidence of the eye witnesses and the confessionary statements.

19. Considering the nature of the evidence of the eye witnesses in the light of the confession, I doubt the Prosecution proved the case beyond reasonable doubt against the 1st Accused.

20. It is noted that the Prosecution did not rely on joint enterprise theory it is the Court on its own motion addressed this issues to the assessors.

21. Considering the nature of the evidence against the 1st Accused Tomasi Ratukana I am of the view that the Prosecution had not proved the case beyond reasonable doubt therefore giving the benefit of the doubt to the 1st Accused this Court does not accept the verdict of guilty by the assessors and find that the 1st Accused Tomasi Ratukana is not guilty to the charge leveled against him.

22. The 2nd Accused Vilikesa Ratusoko also made a confession to the same police investigation officer Sergeant Virendra.

23. 2nd Accused in his confession statement he alleged to have told that on 22/06/2009
Saimoni called him to involve in a seizure of a gun. He says that he went with Saimoni, picked up Tomasi (1st Accused) and picked up Peni Tukai. According to the 2nd Accused 4 people had gone, two guns were taken from the place. Police officer says he recovered all items and they recovered only one gun. There are serious contradictions between both confessionary statements and the evidence of the Prosecution witnesses.

There were two vehicle involved in the crime, prosecution especially the police
officer did not speak a word of these vehicles. It appears the police had not conducted any investigation after the arrest of these two suspects. They merely recorded a statement and forwarded the case to the Court.

24. Considering the nature of the evidence against the 2nd Accused, this Court is of the
view that the Prosecution had not proved the case beyond reasonable doubt. Therefore the Court rejects the verdict of the assessors and finds the 2nd Accused not guilty to the charge.

25. Considering all, these, Court find the 1st Accused Tomasi Ratukana and 2nd Accused Vilikesa Ratusoko not guilty and acquit them accordingly.

S Thurairaja
Puisne Judge

At Suva
Solicitors
Office of the Director of Public Prosecution for State
Both Accused in Person