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State v Urai [2014] FJMC 31; Criminal Case 1688.2011 & 1726.2012 (12 March 2014)

IN THE MAGISTRATE COURT
AT SUVA
Criminal Case No. 1688/11 and 1726/12

IN THE MATTER of an application by the State for consolidation of charges pursuant to Section 60 of the Criminal Procedure Decree 2009

BETWEEN:

THE STATE
APPLICANT

AND:

DANIEL URAI & JAGATH KARUNARATNE
RESPONDENTS

For the Applicant: Mr. Mosese Korovou
For the 1st Respondent: Mr. Sharma
For the 2nd Respondent: In person

RULING

1. Daniel Urai (1st Respondent) is charged with one count of Urging Political Violence contrary to Section 65(1)(b) of the Crimes Decree No. 44 of 2009 in Criminal Case No. 1688/2011.
   
2. In Criminal Case No. 1726/2012 Jagath Karunaratne (2nd Respondent) is charged with the same offence.
   
3. The State filed a motion on 25th April 2013 seeking to consolidate both these actions pursuant to Section 60 of the Criminal Procedure Decree.
   
4. The motion was supported with an affidavit of Detective Sgt 1247 Epeli Senitiri. In the affidavit it was deposed that both these matter arose from the same transaction and they would rely on the same facts and witnesses to prove their case.
   
5. Both respondents objected to this application for consolidation. All the parties filed respective written submissions as well as made oral submission with regard to this application.
   
6. The 1st Respondent in his written submission stated that the charge against the 2nd Respondent was laid more than a year after the 1st Respondent was charged and the officer who filed the affidavit in support has disregard the right of the 1st Respondent's presumption of innocence. He further submitted that the prosecution has failed to lead any evidence to show that both Respondents have committed this offence jointly.
   
7. In his oral submissions the learned counsel for the 1st respondent also took a preliminary objection about the Supplementary Affidavit filed by the State as they contain the statements of some witnesses and producing them to the Court before the trial would prejudice them. For the substantive matter the counsel Mr. Sharma argued that his client was lead to believe that he was going to be charged alone. Also in the cautioned interview also the 1st respondent was never asked about the involvement of the 2nd accused in this offence. Therefore the learned counsel argued that the Court should not allow this application.
   
8. The 2nd respondent in his written submission also argued that only evidence linking him with the 1st respondent was derived from unsubstantiated evidence of one of the witnesses and also a joint trial would have a prejudiced on him.
   
9. The learned State counsel in his oral submission said that they are making this application pursuant to section 60 of the Criminal Procedure Decree and according to the witnesses the State is relying on the two accused were together on the same time when the alleged offences were committed.
   
10. Having considered the respective submissions as well as the affidavits I pronounce my ruling in the following manner.
    
11. The State has filed this application pursuant to section 60 of the Criminal Procedure Decree. Section 60 reads:
    

"The following persons may be joined in one charge or information and may be tried together —

(a) persons accused of the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of –

(i) aiding or abetting the commission of the offence; or

(ii) attempting to commit the offence;

(c) persons accused of different offences provided that all offences are founded on the same facts, or form or are part of a series of offences of the same or a similar character; and

(d) persons accused of different offences committed in the course of the same transaction. "

12. In Nagalu v State [2012] FJCA 60; AAu3.2010 (28 September 2012), Court of Appeal said:
    

"In the absence of a clear prejudice to one of the co-accused it is in the best interest that the defendants who are jointly charged should be tried together. The effect of section 121 is that such a charge is joint and several and as such a result alleges a separate offence against each of the defendant.

This Court considered the issue of joinder of co-accused in one count under section 121 of the Criminal Procedure Code in Alipate Vokai and 21 Others –v- Reginam (1981) 27 F.L.R. 16. At page 22 the Court stated:

"In our opinion section 121(c) and (d) are to be construed in the light of the words used by Lord Diplock in the House of Lords in D.P.P. –v- Merriman (1972) 56 Cr. App. AR 766 at 796:

"Where a number of acts of a similar nature were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment. Where such a count was laid against more than one defendant the jury could find each of them guilty of one offence only, but a failure by the prosecution to prove the allegation, formerly expressly stated in the indictment but now only implicit in their joinder in the same count, that the unlawful acts of each were done jointly in aid of one another, did not render the indictment ex post facto bad or invalid the jury's verdict against those found guilty. To quote Hawkins again: "On such indictment _ _ _ some of the defendants may be acquitted and others convicted; for the law regards the charge as several against each, though the words of it purport only a joint charge against all".

13. The Court of Appeal in Nagalu v State (supra) also referred to R v Moghal (1977) 64 Cr. App. R 56 at page 62 where it said that:
    

"_ _ _ we think that only in very exceptional cases it is wise to order separate trial when two or more are jointly charged with participation in one criminal offence".

14. In State v Wong Kam Hong [2001] FJHC 298; [2001] 1 FLR 239 (25 July 2001), Her Ladyship Justice Shameem in refusing an application for separate trial said:
    

"In Moghal 64 Cr. Appl. R. 56, the English Court of Appeal said (per Scarman J at p. 62) that:

".....we think that only in very exceptional cases is it wise to order separate trials when two or more are jointly charge with participation in one criminal offence".

The reasons for this rule were discussed in Lake 64 Cr. App. R. 172, 175 thus:

"It has been accepted for a very long time in English practice that there were powerful public reasons why joint offences should be tried jointly. The importance is not merely one of saving time and money. It also affects the desirability that the same verdict and the same treatment shall be returned against all those concerned in the same offence. If joint offences were widely to be tried as separate offences, all sorts of inconsistencies might arise".

15. Having considered the above judicial precedents now I would consider the grounds submitted by both parties. The State's position is that both these accused committed these offences on same transaction. They are relying on two witnesses who have said that the two accused were together when the alleged offences were committed.
    
16. The 1st respondent has objected to the affidavit filed with the motion saying that the officer has prejudged the matter which I do not agree. Whatever the prosecution perceives about this case is immaterial as the court has to ultimately decide about issues based on the evidence presented in the trial.
    
17. The 1st respondent also objected to the supplementary affidavit filed by the State as they contained the statements of the witnesses and that would have prejudicial effect on their client. The State has to file this affidavit as the 2nd respondent has taken an objection that there was no evidence to link him with the 1st accused.
    
18. The 1st respondent also alleged that the cautioned interview was not conducted in a proper manner which has to be decided in a trial within a trail/voir dire if the defence objected. I have also noted that the State has already indicated that they would not rely on the cautioned interviews of the two respondents in the trial.
    
19. Even though both respondents objected to this application on the ground that they would be prejudiced from that they failed to show any grounds regarding that in their written submissions or in the hearing. On the other hand the State through the affidavit filed in support as well as supplementary affidavit has managed to show that there is some evidence to link both the accused for these offence and they were committed in the same transactions.
    
20. Having considered reasons mentioned above I accept the State application to consolidate the charges.
    

H.S.P.Somaratne
Resident Magistrate, Suva

12th March 2014