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State v Tuiyanawai [2005] FJHC 179; HAC0022J.2004S (13 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0022 of 2004S

STATE

v.

SAMISONI TUIYANAWAI
SEMISI WAINIQOLO
SOLOMONE BOINI
MOSESE YACO

Hearing: 7th June 2005
Judgment: 13th July 2005

Counsel: Mr. W. Kuruisaqila for State
1st, 2nd, 4th Accused in Person
3rd Accused absent

JUDGMENT

The assessors have given mixed opinions as to the guilt of the accused persons. Two of the assessors find the 1st Accused guilty on Count 1 of robbery with violence. The 2nd assessor finds him guilty on the alternative count of receiving stolen property.

Clearly, the two assessors accept the contents of his interview to the police and/or the evidence of recent possession of $7,000 the proceeds from the robbery. Their opinions are based on a possible version of the facts and I accept their opinions and convict the 1st Accused on Count 1.

All assessors find the 2nd Accused guilty on Count 1. These opinions are clearly based on the lack of a satisfactory explanation as to the possession of $61,000 which he said he received a day after the robbery. On the basis of the doctrine of recent possession I accept their unanimous opinions and convict the 2nd Accused on Count 1.

In relation to the 3rd Accused, all assessors are unanimous as to his guilt on both counts. These opinions are possible on the basis that his confession to the police is reliable. I convict the 3rd Accused on Counts 1 and 3.

All assessors are unanimous that the 4th Accused is not guilty on Count 1. Their opinions are possible on the basis that they believe that the 4th Accused was acting under duress at the time of the robbery. However, I cannot accept their opinions on this issue. The 4th Accused accepted the truth of his interview to the police after the suspension. He then related the events to the police and said nothing about any threats to kill him or to do him serious harm. Nor did he raise it at any time until his unsworn evidence in court. He could not be cross-examined on the issue. The account of events on the 5th and 6th of June 2003, show that he was a willing partner to the robbery and that he knew that a robbery was being planned and executed. He may have been intimidated by the presence of 3 other men, but this is not the test for duress. There must be evidence of threats of death or injury during the whole of the period of the offending. Further, between the 5th and the 6th he failed to take the opportunity to avoid the robbers or to report the matter to the police. One example is Q.165 and another is Q167.

I am satisfied beyond reasonable doubt that the 4th Accused was not under compulsion to commit the offence. I am satisfied beyond reasonable doubt from the circumstances outlined in his interview that he knew he was participating in the robbery. I convict him on Count 1 accordingly.

Nazhat Shameem
JUDGE

At Suva
13th July 2005