HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Cr. Case HAC0044.2004S

The State

v

Simione Kaitani and 3 Others

Fiji High Court, Suva
15th August 2005
Gates J

JUDGMENT

Ms A. Prasad with Ms V. Lidise for the State
Mr I. Khan for Accused, 1, 2 and 3 [Kaitani, Tonitonivanua, Sausauwai]
Mr Rabo Matebalavu for Accused 4 [Lewaqai]

[1] 	On 12th August 2005 the 5 assessors gave their opinions of not guilty in the cases of all 4 Accused on the 4 counts of the information. Those opinions were unanimous.

[2] 	After delivery of opinions by the assessors it is the judge’s role to give judgment and by virtue of section 299(2) of the Criminal Procedure Code, in doing so he is not bound to conform to the opinions of the assessors.

[3] 	The proviso to section 299(2) also requires that if the judge does not agree with the majority opinion of the assessors he shall give his reasons which shall be written down and be pronounced in open court. If the judge agrees with the opinions rendered, it is not necessary for a judgment to be delivered which conforms with the requirements of sections 154 and 155 of the CPC. The Court of Appeal has expressed the view however that it would prefer a short judgment to be written in that event.

[4] 	A criminal trial before the High Court is said to be “by a judge sitting with assessors” [section 263(1)]. The assessors sit separately from the judge, and during the trial are free to consult amongst themselves [section 299(4) CPC]. They do not sit alongside the judge on the bench and do not form a joint tribunal of fact. At the conclusion of evidence and counsel’s addresses, the judge sums up the case to the assessors. The assessors retire and do not consult with the judge during their deliberations. They return to court when they have decided upon their opinions and give their opinions orally in open court.

[5] 	The judge has no way of knowing over which piece of evidence or over which witness the assessors may have been specially deliberating, and on which of either they harbour doubts. If the assessors are to bring to their task a layman’s non-legal common sense and a knowledge of the world, and the judge a trained legal mind with an analytical approach to the strands of evidence, the two do not have an opportunity to merge their two approaches prior to final decision.

[6] 	This was not a straightforward or a simple case, as I said in my summing up. The State’s case relied on certain key witnesses as its supporting pillars. If the pillars of the case were not ultimately to be relied on, the house which the prosecution sought to build would collapse. This appears to have been the result in this case.

[7] 	A case is not decided on suppositions of what must have occurred, or on who might have given evidence, but on who did give evidence, and what was the strength, quality and credibility of that evidence. That is our system of justice.

[8] 	I have been able to reflect over the opinions tendered by the assessors and to weigh them with the evidence. Though I do not know the specific areas of the evidence that may have troubled the assessors in this case, each of the three central pillars of the evidence upon which the prosecution relied, possessed potential and obvious defects. Such defects could properly give rise to reasonable doubt about the guilt of each of the Accused. On that basis I accept the unanimous opinion of the 5 assessors and acquit each of the Accused. The Accused may now stand down.

A.H.C.T. GATES
JUDGE

Solicitors for the State	: Office of the Director of Public Prosecutions, Suva.

Solicitors for Accused 1, 2 and 3 [Kaitani, Tonitonivanua, Sausauwai]: Messrs Iqbal Khan & Associates, Lautoka.

Solicitors for Accused 4 [Lewaqai]: Messrs Esesimarm & Co., Nadi.