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State v Niume - Judgment [2011] FJHC 626; HAC010.2010 (26 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 010 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

1. EPARAMA NIUME
2. JOVECI NAIKA
3. APENISA LINO
ACCUSED PERSONS

Counsel: State - Mr. M. Maitava
Mr. J. Singh
1st Accused - Ms L. Lagilevu
2nd Accused - Mr. T. Muloilagi
4th Accused - Ms V.M. Savou

Date of Hearing: 24/08 - 25/08/11, 29/08 - 31/08/11, 01/09-02/09/11, 05/09 - 08/09/11, 12/09 13/09/11, 19/09 - 21/09/11
Date of Summing Up: 23 September 2011
Date of Judgment: 26 September 2011

JUDGMENT

[1] The assessors have expressed their unanimous opinion that the 1st and the 2nd accused persons are guilty of the offence of murder on Counts No. 1 and 2 and that the 4th accused is guilty of the offence of Accessory after the fact to murder on Count No. 3.

[2] I adjourned to consider my judgment. I direct myself with the Law contained in my Summing Up to the assessors.

[3] The prosecution substantially relied on the evidence of the accomplice Soroveli and the caution interview statements of the accused persons. According to Sorevli's evidence all 3 accused persons (1st, 2nd and 4th) have planned the robbery with him. He has seen the 1st accused stabbing the deceased Ashok Chand and Mohini Lata. In his caution interview statement the 1st accused admitted that he stabbed both the deceased persons. Soroveli's evidence is corroborated by the caution interview statement of the 1st accused on all elements of the offence of murder. I also find that the caution interview statement of the 1st accused was made voluntarily.

[4] Therefore I accept the unanimous opinions of the assessors that the 1st accused is guilty of the offences of murder in Counts No. 1 and 2.

[5] Soroveli, the accomplice, gave evidence that the 2nd accused grabbed the deceased Mohini Lata. There was no dispute that the 2nd accused was physically present there to assist the 1st accused in committing the robbery.

[6] Apart from Soroveli's evidence against the 2nd accused, the 2nd accused himself giving evidence admitted that he was involved in the planning of the robbery. The 2nd accused also admitted that he held the iron rod which was given to him by the 1st accused as a weapon. However he said that the iron rod fell from his hand when he heard Ashok (the deceased) coming towards the toilet. The 2nd accused also admitted that if the iron rod was used it would have caused serious injury.

[7] It was day time, and both 1st and the 2nd accused knew that both deceased persons were inside the house. Therefore the 2nd accused could have had the knowledge, that it was a probable consequence that grievous hurt or death would result if the deceased persons confront them and if they used the weapon he carried. Common intention to cause grievous harm or death would occur on the spur of the moment. The 2nd accused did not try to escape, in his own evidence, from the scene. Further the 2nd accused had been listening to music with Soroveli in the bleach room for about 2 hours until 3.00pm even after he knew that Ashok was murdered. He himself admitted in evidence that he feared that the 1st accused would do harm to Mohini. Still he left to search for the safe with Soro leaving Mohini with 1st accused according to him.

[8] In the circumstances I find that the prosecution has proved beyond reasonable doubt that the 2nd accused acted in joint enterprise with the 1st accused to commit murder of the deceased persons, Ashok Chand and Mohini Lata.

[9] Therefore I accept the unanimous opinions of the assessors that the 2nd accused is guilty of the offences of murder in Counts No. 1 and 2.

[10] The 4th accused is charged with the offence of Accessory after the fact to murder.

[11] Corporal Taufa in his evidence said that Eparama revealed about the knife and at the 4th accused's house, Eparama showed them the knife.

[12] Sergeant Apimeleki said that after seizing the knife, the owner of the house (4th accused) led the police to the yard and showed them the place where they burnt some blood stained clothes that were brought by the 1st accused.

[13] In his caution interview statement the 4th accused had said that the 1st accused brought a plastic bag which contained a knife with blood stains and some clothes with blood. The contents of the caution interview statement of the 4th accused were not challenged by the 4th accused. The 4th accused admitted in the caution interview statement that the 1st accused told him that, that was the knife used to stab the deceased.

[14] Further Eparama had said that the blood in the clothes he brought belong to the deceased couple. The above items of evidence point to the fact that the 4th accused did have the knowledge of the 1st accused causing the death of the deceased persons.

[15] The 4th accused had allowed the 1st accused to leave the weapon of offence being the blood stained knife in his house. Furthermore the 4th accused allowed the 1st accused to dispose the blood stained clothes in his garbage dump in the backyard.

[16] In light of the above evidence the 4th accused had assisted to conceal the vital evidence to enable the 1st accused to escape punishment.

[17] In the above circumstances I agree with the unanimous opinions of assessors that the 4th accused is guilty of the offence in Count No. 3.

[18] Therefore I find the 1st accused guilty of Counts No. 1 and 2 and convict him of Counts No. 1 and 2 accordingly.

[19] I find the 2nd accused guilty of Counts No. 1 and 2 and convict him of Counts No. 1 and 2 accordingly.

[20] I find the 4th accused guilty of Count No. 3 and convict him of Count No. 3 accordingly.

Priyantha Fernando

JUDGE

At Suva

26 September 2011