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Coriakula v State [2012] FJHC 1341; HAC003.2012 (26 September 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 003/2012

BETWEEN :

METUISELA CORIAKULA
APPLICANT

AND :

THE STATE
RESPONDENT

COUNSEL : Applicant in Person
Ms Luisa Latu for the State
Hearing Date : 13/09/2012
Ruling Date : 26/09/2012

RULING

1. The applicant METUISELA CORIAKULA had filed an Application for Separate Proceeding.

2. The applicant has been charged for one count of Rape under section 207(1) and (2) (a) of the Crimes Decree No: 44 of 2009.

3. That applicant applies for Separate Proceedings on the following grounds:

(1) That his co-accused statements are against him and he fears that his right of fair trial will be violated if all the accused are tried together.

(2) That the complainant had mentioned so many venues in her complaint.

(3) No direct identity of the suspect and no identification parade held by the police.

(4) That there is no evidence against him.

4. Part VII of the Criminal Procedure Decree No: 43 of 2009, sets out the provision of separate trials before the High Court, particularly section 59(3) states:

• Where, before trial or at any stage of a trial, the court is of the opinion that-
  

(a) an accused person may be prejudiced in his or her defence by reason of being charged with more than one offence in the same charge or information; or

(b) for any other reason it is desirable to direct that the person be tried separately for any one or more offences charged in a charge or information-

The court may order a separate trial of any court or counts in the charge or information.

5. In State v Buksh [2005] FJHC 419; HAC 0010D.2005 (11/11/2005) her Ladyship, Shameem J highlighted that that orders for separate trials are only granted in exceptional cases and she further stated:

"The reason for this general principle is the public interest. It is desirable that the same verdict and treatment should be returned amongst all those concerned in the same offence. Also relevant is that a joint trial saves time and money. Grounds on which separate trials have been ordered, include inordinate length or complicated evidence in a joint trial (R v Novac 65 Cr.App.R.107, 118) and prejudice to the accused which cannot be cured by editing of interviews or directions to the jury (R v Silcott [1987] Crim.L.R. 765; (R V Gunewardene) [1951]2 KB 600).

6. The same sentiment was expressed in recent case of Muskhan Balagan & Elton Xnemali Miscellaneous Case No: HAM 207 of 2011, by his lordship Goundar J.

7. State submits that a statement made under caution is admissible only against the maker of the caution interview. This point was highlighted in Chaudhary v State [2010] HAM 127.2010 (August 2010) by Goundar J. His lordship stated in paragraph 7:

"Where more than two persons are charged with the same offence, it is not uncommon for one accused to implicate the other. This does not mean that a separate trial has to be held for each accused. A fair trial is obtained by appropriate directions to the assessors to disregard inadmissible evidence against an accused. It is not sufficient just to show prejudice arising from inadmissible evidence as a ground for a separate trial."

8. Even though the Applicant is jointly charged the court will consider decisions based on the evidence on each accused. Any statement made by any co-accused in his caution interview is only admissible against the maker of the statement. Proper direction will be given to the assessors during the trial to exclude inadmissible evidence against the accused.

9. Identification parade is necessary where accused was not identified by the complainant. In this case state is relying on the direct evidence of the complainant.

10. Considering above reasons, the application for separate trial is dismissed.

P.Kumararatnam
JUDGE

At Suva
26/09/2012