IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 118 OF 2007

BETWEEN:

THE STATE

AND:

1.	SAKIUSA ROKONABETE
2.	AKUILA DROMUDOLE
3.	GUSTON KEAN
4.	ALIFERETI TOKONA
5.	PENI TUKAI
6.	NACANIELI BULIVOU

Counsel: Ms. H. Tabete for the State
In Person for all Accused

Date of Hearing: Wednesday 11th June, 2008
Date of Ruling: Monday 30th June, 2008

RULING

[1]	The accused persons are jointly charged as follows:

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of the Penal Code, Cap.17.
Particulars of Offence

SAKIUSA ROKONABETE, AKUILA DROMUDOLE, ALIFERETI TOKONA, GUSTON KEAN, PENI TUKAI, and NACANIELI BULIVOU, on the 7th day of July, 2007 at Samabula in the Central Division, robbed the MH SUPERFRESH SUPERMARKET, Tamavua of $21,583.73 cash and immediately before such robbery threatened to use personal violence on the cashiers and customers at the MH SUPERFRESH SUPERMARKET.

[2]	The information is drawn in accordance with section 121 of the Criminal Procedure Code, which permits persons accused of the same offence committed in the course of the same transaction to be joined in one charge or information and tried together. 

[3]	The fourth and fifth accused persons (the applicants) apply for separate trials.

[4]	Their contention is that the only incriminating evidence against them are in the caution interviews of the co-accused persons, which in law are inadmissible against them, and therefore they would be prejudiced in their defence if tried together.

[5]	The State opposes the application for separate trials. The State contends that they have evidence of false alibi against the applicants from which an inference of consciousness of guilty could be made. The State submits the evidence of false alibi is contained in the respective caution interviews of the applicants.

[6]	It is trite law that a judge has a discretion to order separate trials of co-accused if the effect of a joint trial would be to prejudice or embarrass the defence of a co-accused to such an extent that a miscarriage is the likely result. However, the discretion should be exercised judicially. 

[7]	In Grondkowski [1946] 1 All ER 559, Goddard LCJ said:

"Prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise, it is obviously right and proper that they should be jointly indicted and jointly tried, and in some cases it would be as much in the interest of the accused as of the prosecution that they should be. Suppose, for instance, that the defence of one was that he or she was acting under the positive duress of the other. It would be obviously right that they should be tried by the same jury, who might see in one prisoner a harmless or nervous looking little man or woman, and in the other a savage brute whom they might deem capable of forcing his co-prisoner against his will into assisting in a crime." 

[8]	In a later case of Moghal v R [1977] 65 Cr. App. R.56, Scarman LJ at 62 said:

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

[9]	I am satisfied that all the accused persons are correctly jointly charged because the prosecution relies on the principle of joint enterprise to prove the charge. The question is whether the applicants would be prejudiced or embarrassed in their defence if tried together with the co-accused persons. The only evidence against the applicants is their exculpatory statements contained in their respective caution interviews. The prosecution contends that those statements are evidence of false alibi. I am not able to accept this contention. If the prosecution wishes to rely on false alibi as consciousness of guilt then they have to prove the applicants lied to the police about their whereabouts on the day in question to hide their guilt. The mere fact that the applicants deny any involvement in the alleged offence, when their co-accused implicates them in their caution statements, in law does not support the proposition that the applicants have lied to the police about their alibi, to be used against them as consciousness of guilt. 

[10]	If it is the prosecution’s contention that the exculpatory caution statements of the applicants are evidence of false alibi because their co-accused implicates them in their caution interviews, the effect of the joint trial would be to prejudice or embarrass the applicants’ defence of alibi. Applying the principle in Grondkowski to this case I am satisfied that the effect of a joint trial would be to prejudice or embarrass the defence of the applicants to such an extent that a miscarriage of justice is the likely result.

[11]	For these reasons, I order the applicants to be tried jointly but separately from the 1st, 2nd, 3rd and 4th accused persons. The State must file amended information within 7 days. The trial of the 1st, 2nd, 3rd and 4th accused persons shall commence on the 28th of July 2008. The trial of the applicants shall await the outcome of the co-accused persons’ trial. 

SO ORDERED

Daniel Goundar
JUDGE

At Suva
Monday 30th June, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
In Person for all Accused