IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 025 OF 2010

BETWEEN:

STATE

AND:

1. ESIRA NAWAQALEVU
2.	WAISALE MOIERE
3.	TOA TURAGACATI

Counsel: Mr. M Kaisamy - for the State
Mr. S Waqainabete - for 1st Accused
2nd & 3rd Accused in Person

Date of Hearing :  29th & 30th June 2011
Date of Ruling : 1st July 2011

RULING ON NO CASE TO ANSWER

1. 	The Accused persons above named were charged as follows:

FIRST COUNT

Statement of Offence

MURDER: Contrary to Section 199 and 200 of the Penal Code, Cap 17.

Particulars of Offence

ESIRA NAWAQALEVU, WAISALE MOIERE AND TOA TURAGACATI 
on the 6th day of December, 2009 at Korovou, Bua in the Northern Division murdered Joeli Rayawa.

SECOND COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(a) of the Penal Code Cap 17.

Particulars of Offence

ESIRA NAWAQALEVU, WAISALE MOIERE AND TOA TURAGACATI on the 6th day of December 2009 at Korovou, Bua in the Northern Division robbed the Raviravi Shopping Centre of 2 carton 400z rum valued at $1,500.00, 2 cartons 26oz rum valued at $1080.00, 1 carton gin valued at $600.00, 1 carton of fanta juice valued at $43.00, 3 gross BH 10 valued at $200.00, 18 packets of BH valued at $52.20, 1 carton Fiji gold valued at $60.00, 5 school bags valued at $75.00, 3 gas lighter valued at $6.60, 11 bottles of Fiji bitter valued at $44.00, 1 pair hand gloves valued at $5.00, 1 box gas lighter valued at $110.00, goat nail cutter valued at $30.00, 1 box of large Sony battery valued at $28.00, 3 tin corned beef valued at $6.00, 1 carton of Fiji bitter stubby valued a $50.00, 15 bottles stubby valued at $37.00, 1 pair soccer boot $140.00 and 2 torch valued at $19.00 to the total value of $4069.80. While in the act the three used personal violence against Joeli Rayawa and Kaususu Leilei.

2. 	When the trial commenced the 1st Accused pleaded guilty to the offence of robbery and pleaded not guilty to the charge of murder.

3. 	2nd and 3rd Accused persons pleaded not guilty to both counts.

4.	Prosecutor indicated to court that he will be adducing the statements of these Accused persons which were obtained in the cautioned interview. The 1st and 3rd Accused person did not raise any objection but the 2nd Accused. Voir dire inquiry held to verify the voluntariness of the said statement at the conclusion of the inquiry, it was found that the said statement was voluntarily made and it can be adduced in evidence.

5.	At the trial proper the prosecution led the evidence of two doctors, 3 lay witnesses and 4 police witnesses and close the case for the prosecution.

6. 	After the case for the prosecution is closed, the Counsel for the 1st Accused made an application to the effect that the 1st Accused has no case to answer. Further the 2nd and 3rd Accused was assisted by the same Counsel as duty Solicitor made the same application i.e. the 1st count is not proved therefore they have no case to answer.

7.	The Defence submitted following factors in support of their argument.

a)	The basic element of an offence is the intention. The Prosecution failed to prove this.

b)	The Prosecution solely relies on the statement made in the caution interview which doesn't reveal any intention of murder.

c)	Further the experienced pathologist is of the view that considering the injury and the death was after 45 days. The assailant didn't have the intention of murder. Therefore, the case for the prosecution should be dismissed and no case for the defence to answer.

8. 	If the court holds otherwise, the defence submitted further factors in support of the application.

a)	Prosecution had not proved the basic elements of the offence of murder.

b)	As per Section 199, the prosecution should prove 

(i)	 the identify of the Accused 
(ii)	 intention to kill
(iii)	caused the bodily harm
(iv)	knowledge 

c)	In this case the prosecution failed to prove the identity of the Accused persons. None of the witness, lay witnesses or the police identified there Accused persons.

d)	The Prosecution did not prove the intention. The statement does not mention any intention to murder. Further, the medical Report and the Pathologist doesn't support the prosecution on this fact.

e)	Prosecution failed to prove the knowledge to kill or to cause the death of another person.

9.	It should be noted that the defence is not submitted that the 2nd count is not proved. They admit that they have a case to answer in respect of the 2nd count. The challenge is only in regard to the 1st count i.e charge of murder.

10.	The State Counsel responded in the following manner.

a)	Their is a case to answer.

b)	They are relying on Kalisoqo case, and states that the test is not beyond reasonable doubt.

c)	Elements such as identity, unlawful act, death of a person and malice aforethought was proved.

d)	These are question of fact, he had submitted enough evidence therefore he submits to call for defence.

11.	The law relating this application is in section 231(1) of the Criminal Procedure Decree.

"When the evidence of the witnesses for the prosecution has been concluded, and after hearing (in necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence."

12.	The Court is mindful of the judgments of State vs Semisi Wainiqolo HAC 015 of 2004S, Sisa Kalisoqo v State Crim. App. 52 of 1984 and State v Takiveikata (2011) FJHC 129.

13.	Section 237 (2) of the Criminal Procedure Decree states as follows:

"The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors."

14.	Considering the legal system of Republic of Fiji, the assessors are to assist the trial judge. It is the judge who is hearing the case makes the final determination and delivers his judgment.

15.	Considering the law the expenditures of the court and all other factors, this court is of the view that the judge should be satisfied that there is a prima facie case proven against Accused persons.

16.	Considering the proving of prima facie case, the court expects the prosecution to prove the charge against the Accused persons. Proving the charge means that all elements of the offence should be proved. If the defence opted to not offer any defence the court should be able to convict the Accused. Considering the decided authorities in similar jurisdiction, this court finds that should be test for the defence to be called.
 
17.	Considering the present case, the prosecution had relied completely on the statement made by the Accused persons in the caution interview.

18.	Admitting the statements made during the caution interview does not mean the case is proved, the prosecution should prove the confession. It doesn't mean that they have to prove all of the confession but the salient and important factors must be proved by independent evidence.

19.	In this case the prosecution called 9 witnesses but none of them had identified any of the Accused persons. Even the police officer who had recorded the evidence and charged the Accused persons did not identify these Accused persons in Court. They only referred the names of the Accused persons but made no connection between the name and the Accused persons in Court. There is no evidence before the Court that these are of the Accused persons who were arrested in connection with the offence. This is a serious omission by the prosecution.

20.	Considering the elements of the offence of murder.

".. Section 199 and Section 202 of the Penal Code requires following elements to be proved.

(i)	The Accused
(ii)	Intention
(iii)	An act or
(iv)	Knowledge 

21.	Offence has two main ingredients mens rea and actus rea that is intention and act if one is absent there is no offence.

22.	As per Section 199 the prosecution must prove the Accused persons had the intention to kill or to cause a bodily harm which results the death of the person.

23.	Considering the only evidence that is the statement of the Accused persons does not reveal any intention of that sort. The 1st Accused said in his statement (Re produced from the Statement as it is).

Q63:	What happened when you have waited for them to sleep? (sic)

A:	I picked up a piece of wood (3 x 2) pushed the plywood that was placed in the step and hit the Watchman.
Q64:	Where did he lie down?
A:	On the bed. 
Q65:	How many times did you hit him?
A:	Ones (sic).
Q66:	Which part of him did you hit?
A:	On his right above neck.
Q67:	What did you see after you have already hit him?
A:	He was unconscious with no movement at all.
Q68:	What did you do to his wife then?
A:	I then hit her again.
Q69:	Which part of her did you hit?
A:	Her both hands because she tried to save her head.
Q70:	What is your intention of hitting both of them with a piece of timber?
A:	To knock them out.
Q71:	What did you know after you have assaulted them with the timber?
A:	They both felt unconscious. (sic)
Q72:	Where is Toa and Waisale at that particular time?
A:	In front of the shop.

The 1st Accused interviewed again after the death of the deceased at the Labasa 
Prison. The question and answers states as follows: 

Q23:	Did you know that the result or outcome of your act may result to his death?
A:	No.

The 2nd Accused interview as follows:

Q59:	Then what happened?
A:	Esira came back outside and told us that it is hard to do the break in because the engine was off; if the engine was still on, it will be easy as the noise of the engine will cover the noise of the breaking.
Q60:	Then what happened?
A:	We decided to go home but Esira came up with another plan.
Q61:	What was the plan?
A:	Esira told us to attack the watchman and his wife and bit them up until they knock out then we can break into the shop. (sic)
Q62:	Did you agree to the plan?
A:	No myself and Toa did not agree but he told us not to worry, as he will do it himself and we just standby and to assist him if he needs assistance.

The 2nd Accused in his 2nd interview stated as follows:

Q12:	At the time of the assault during the robbery was it your intention to kill Joeli Racawa?
A:	No.
Q13:	What was your intention when you assaulted him during the robbery?
A:	Our intention was to weaken him only so that he could not do anything.

In the charge statement the 2nd Accused stated as follows:
Q4:	What do you wish to say in regards to the charge put to you.
A:	We did not know that it will cause him his life".

24.	The police officers D/S Savou had recovered a wooden stick and produced in court and marked as P5. He said he record 96cm long stick. P5 was measured in open court and found it was 110cm. In the same time the 1st Accused had told he used a 3 x 2 wood. It appears there is no proper investigation conducted by the police.

25.	Considering the knowledge and aforethought the prosecution should prove that these Accused persons had the knowledge at the time of the incident or they have anticipated the results. Considering the evidence before the Court, applying a reasonable man theory. The Court cannot come to a reasonable conclusion that these Accused persons had the knowledge or aforethought.

26.	Perusing the evidence before the Court, it is noted that there is no productions recovered during the investigation. The wooden stick is not consistent discussed as above, the production are not properly marked, labeled itemized or kept in proper custody. For an example the prosecution attempted to mark a carton of Fanta bottle those bottles did not have any marking. On the examination of the Court, it was found that those bottles has a expiry date in 22 September 2009, the incident had happened in December 2009. Did the shop (victim) had those bottles if he had, the police could have clearly noted and itemized as evidence. Can the Court act on these type of investigation and convict an accused for a capital punishment charge.

27.	It is worth to note the consistency of the Accused persons. 1st Accused from the inception of the trial moved the court that he is not guilty of murder and he wants the prosecution to consider otherwise. 2nd and 3rd Accused also made the same application after the commencement of the proper trial. The prosecution was informed of the Pros and Cons of the available material on several occasions, but the prosecutor always said that he had to contact his superiors at office at Suva but he came out and submitted that they are not agreeable. This is a clear case where the Prosecutor and the Office of the Director of Public Prosecutions could have seriously considered the offences of the Accused persons.

28.	It is with much regret this Court note that the Prosecutor unable to take decisions during the trial. Since it is an internal matter for the Office of Director of Public Prosecutions to consider this Court makes no order.

29.	Considering the law, decided cases and the facts of the case the court upholds the application of the Accused persons and rules that the Accused persons need not answer to the charge of murder leveled against them.

30.	Considering all the materials before the Court, the Court finds the 1st Accused Esira Nawaqalevu, 2nd Accused Waisale Moiere and 3rd Accused Toa Turagacati not guilty to the charge of murder and acquits them accordingly.

31.	Considering the available evidence regarding the 2nd count, charge of robbery, Court acts under Section 231 (2) of the Criminal Procedure Decree and calls for Defence.

........................................
S. Thurairaja
JUDGE

At Labasa
1 July 2011