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State v Sinudamanu [2011] FJHC 601; HAC251.2010 (4 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 251 OF 2010

BETWEEN:

THE STATE

AND:

TOMASI SINUDAMU

Counsel: Ms. L. Tabuakoro for the State
Accused in Person

Date of Summing Up: 4th August 2011
Date of Judgment: 4th August 2011

JUDGMENT

1. The trial commenced on 01st August 2011 and concluded on 04th August 2011. The assessors unanimously found the Accused person not guilty for 2 Counts of aggravated robbery as charged.

2. I adjourned to consider my judgment.

3. I direct myself with the law and the evidence which I discussed in my summing up to the assessors.

4. Accused was charged under section 311 (1) (a) of the Crimes Decree for aggravated robbery, except the identity of the Accused, other elements of the offence were unchallenged.

5. The most important element to be proved is the identity of the Accused. In other words that this Accused was involved in the offence.

6. Prosecution led evidence of 7 witnesses in the trial proper. None of them had identified the Accused.

7. It was revealed in the trial that the Accused was masked, obviously the assailants would have had the opening for their eyes to see. It is observed by the Court that the Accused had distinct eye identification because he has very obvious squint eyes. If any one sees his eye he should identify him. But in this case none of the witnesses had identified the Accused.

8. The only material before the Court is the confessionary statement made by the Accused.

9. The Accused challenged the admissibility of the confession, therefore a voir dire inquiry held to determine the admissibility of the confession. At the end of the inquiry the Court held that the confession can be allowed to be led in evidence.

10. The confession reveals certain details but not recalls the entirety of the incident. That brings a doubt in the mind of the Court whether it was made by the Accused or doctored.

11. The prosecution claimed that there was a recovery of money from the Accused but it was not produced before the Court.

12. Other then the police officers evidence there is no independent proof that the Accused was in a Motel and spent money.

13. The Accused accounts for his expenditure. He is not expected to prove his innocence. Any how he offered an explanation.

14. It should be mentioned that the prosecution did not speak a single word on joint enterprise. Because it was mentioned in the charge the Court addressed the issue to the assessors.

15. The Accused was not represented by a Counsel. He had his deficiency in put forward his defence but the Court is mindful that the prosecution should prove the case beyond reasonable doubt.

16. This Court agrees with unanimous verdict of the assessors.

17. Considering all the Court finds that the case against the Accused is not proved beyond reasonable doubt. Therefore giving the benefit of the doubt the Court finds the Accused not guilty.

18. This Court finds the Accused Tomasi Sinudamu not guilty and acquits him accordingly.
    

S Thurairaja
Puisne Judge

At Suva
Solicitors
Office of the Director of Public Prosecution for State

Accused in Person