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State v Toa [2016] FJHC 219; HAC116.2015 (4 April 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION


HAC NO. 116 OF 2015 / HAC 268 OF 2015


BETWEEN:


STATE


AND:


1. SOSICENI TOA
2. PRANEEL CHANDRAN REDDY
3. PAULA BARAVILALA SERU


Counsel: Mr. A. Singh for the State,
Mr. K. Tunidau for the First Accused Person,
Mr. N. S. Khan for the Second Accused Person,
Ms. Laisani T. for Third Accused Person


Date of Hearing: 3rd of March 2016
Date of Ruling: 4th of April 2016


RULING ON JOINDER OF CHARGES AND ACCUSED PERSONS


Introduction

  1. The Prosecution filed this notice of motion, seeking an order that the charges and the accused persons in HAC 268 of 2015 and HAC 116 of 2015 be joined pursuant to Section 59 (1) (b) and Section 60 (c) of the Criminal Procedure Decree. The notice of motion is being supported by an affidavit of Assistant Superintendent of Police, Mr. Serupepeli Naiko, stating the ground for this application.
  2. Mr. Sociceni Toa and Mr. Praneel Chandra Reddy have been charged with one count of Attempted Unlawful Importation, contrary to Section 4 (1) and 9 of the Illicit Drugs Control Act 2004 in HAC 268 of 2015.
  3. In respect of HAC 116 of 2015, Mr. Toa is being charged with one count of "Attempted Unlawful Importation of Illicit Drugs", contrary to Section 4(1) of the Illicit Drugs Control Act and Section 44 (1) of the Crimes Decree and one alternative count of "Attempted Unlawful Importation of Illicit Drugs", contrary to Section 9 and 4 (1) of the Illicit Drugs Control Act. Moreover, Mr. Toa has been charged with Mr. Paula Baravilala Seru for one count of Attempted Unlawful Importation of Illicit Drugs, contrary to Section 5(a) of the Illicit Drugs Control Act and Section 44 (1) of the Crimes Decree and one alternative count of Attempted Unlawful Importation of Illicit Drugs, contrary to Section 9 and 5(a) of the Illicit Drugs Control Act.

Case of the Prosecution

  1. A.S.P. Serupepeli Naiko in his affidavit stated that all three accused persons are charged with attempting to import or assisting in the importation of substantial quantities of Methamphetamine into Fiji. He further deposed that there is evidence that Methamphetamine in both cases have originated from the same source and consignor in Mexico. In HAC 268 of 2015, the alleged substance has been brought in a shipment by sea, concealing them in spare parts for cars. In HAC 116 of 2015, the alleged substance has been brought in by air, concealing in an industrial cooker. Both consignments came to Fiji in a close proximity of time. A.S.P. Naiko further stated that Mr. Toa and Mr. Seru were arrested in Lautoka on 13th of July 2015 in respect of HAC 116. Mr. Reddy was arrested on 8th of August 2015 in respect of HAC 268. Mr. Toa was later arrested for HAC 268 as well.
  2. Having stated the factual background of HAC 116 and HAC 268, A.S.P. Naiko stated that these two cases are clearly connected and inextricably linked as they are involved with same illicit drugs, derived from same source and directed to the same persons, that is Mr. Toa and his associates, Mr. Seru and Mr. Reddy. Hence, he urged that these three accused persons are charged with offences which form a series of offences of similar character.

Objections of the three accused persons

  1. The three accused persons objected the application of joinder of charges and accused persons pursuant to Section 59 and 60 of the Criminal Procedure Decree. Three of them filed their affidavits in opposition, stating their objections for this application. Mr. Toa in his affidavit stated that the joinder of HAC116 and HAC 268 would prejudice or embarrass him in his defence and the two cases have no common factual origin.
  2. Mr. Seru in his affidavit stated that his objection is founded on three main grounds, those are;
  3. Mr. Seru, further stated that he had not known Mr. Reddy and had never met him or Mr. Toa to discuss, to plan or to conspire to import any illicit drugs into Fiji.
  4. Mr. Reddy stated in his affidavit that these two cases are based on completely different facts, transactions and times and HAC 268 has no connection to HAC 116. If these two cases are joined, it will highly prejudice his defence and be unjust and unfair to him. Mr. Reddy stated that, though the alleged illicit drugs in both cases appear to be originated from same source, he has no connection with the illicit drugs involved in HAC 116. He further stated that if the consolidation is allowed, he will be unfairly and unjustly prejudiced as the assessors and the court will unfairly lead to a conclusion on inadmissible evidence against him.

The Law


  1. Having briefly discussed the factual background of this application, I now turn onto examine the applicable legal provisions in respect of joinder of charges and defendants.
  2. Section 59 of the Criminal Procedure Decree states that;
(1) Any Person may be charged together in the same charge or information if the
offences charges are-
(2) Where more than one offence is charge in a charge or information, a description of each offence shall be set out in a separate paragraph of the charge or information, and each paragraph shall be called a count.
(3) Where, before trial or ay any state of a trial, the court is of opinion that-
  1. Section 60 of the Criminal Procedure Decree states that;
"The following persons may be joined in one charge or information and may be tried together —
(a) person accused of the same offence committed in the course of the same transaction,
(b) person accused of an offence and persons accused of-
(c). person accused of different offences provided that all offences are founded on the
same facts, or form or are part of a series of offences of the same or a similar
character; and
(d) person accused of different offences committed in the course of the same transaction
  1. Section 59 (1) generally provides an authorisation for the joinder of charges. Section 59 (1) (a) and (b) then introduce the limitation for the joinder of charges, providing two limitations. In order to join charges in one information, they must be either founded on same facts or form, or part of a series of offences of the same or a similar nature. Likewise, Section 60 has provided the general authorisation for the joinder of two or more accused persons. Section 60 (a) to (d) have then introduced the limitations for the joinder of accused persons. Section 59 (3) has stipulated the safeguard for the accused person, even if the charges are properly joined according to the principles stated under Section 59 (1). According to Section 59 (3), a discretionary power has been given to the court to order a separate trial if the court finds that the joint trial might either prejudice or embarrass the accused in his defence, or any other desirable reasons for doing such.
  2. Accordingly, the approach in determining this application constitutes of two distinct components. The first component is to determine whether the joinder of charges and the accused persons is frameworked appropriately. The second component is to determine whether the accused persons are prejudiced or embarrassed in their defence if they are charged jointly.
  3. Latham L.J. in R v Roberts ( 2009) 1 Cr. App. R. 20) held that;
"The question whether counts have been properly joined cannot, in our judgment, depend upon the explanation given by the defendant. It is not for the crown to try and predict what the defence is likely to be at the time that the indictment is drawn. The propriety of the indictment must be judged when it is drawn".
  1. Accordingly, the approach in determining the first component as mentioned above does not depend on the nature of the defence of the accused persons. However, the nature of defence of the accused persons constitutes the main component in determining whether the accused person is prejudiced or embarrassed in his defence if charges are joined.
  2. Justice Gounder in Kean v State ( 2013) FJCA 14; AAU0018.2008 ( 5 March 2013), having comparatively discussed the applicable principles and provisions in England and Fiji in an application of this nature, found that the judicial precedents in England are relevant and persuasive in an application to determine the propriety of joinder of charges and accused persons.

Analyses

  1. Having pursued the notice of motion and the affidavit of A.S.P. Naiko, it appears that the prosecution proposes a joinder of charges and accused persons on the ground that the offences are founded on a series of offences of similar character pursuant to Section 59 (1) (b) and Section 60 (c) of the Criminal Procedure Decree.
  2. It appears that the prosecution seeks to join five counts that they have brought against Mr. Toa in HAC 268 and HAC 116 respectively in one information pursuant to Section 59 (1) (b) and to join Mr. Toa, Mr. Seru and Mr. Reddy in one information in respect of the counts that they have been charged under HAC 116 and HAC 268 respectively pursuant to Section 60 (c) of the Criminal Procedure Decree.
  3. Lord Widgery LJ in R v Kray and Others ( 1969) 3 All ER 941 at 944 has given a comprehensive definition for offences of similar character, where his lordship found that;
"Offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases. Thus in R v Clayton - Wright the accused was convicted on four counts, namely, arson of a vessel; arson of the same vessel with intent to prejudice the insurers; attempting to obtain money be false pretence from those insurers in respect of a policy on the vessel; and attempting to obtain money by false pretence from insurers by falsely pretending that a mink coat had been stolen from his motor car. On appeal it was unsuccessfully contended that the fourth count was improperly joined. Lord Goddard CJ said ( 1948) 2 ALL ER at p 765);
"One test which the learned judge applied was to consider whether or not the evidence with regard to the mink coat could be given in evidence on the other charges. He came to the conclusion that it could, and, in the opinion of the court, he came to a right conclusion...That was one ground, but the main ground on which the court holds that there was no misjoinder is the following. The charge contained in the first three counts... in substance was the appellant fired the yacht with the idea of swindling underwriters. The charge with regard to the mink coat was a similar charge of swindling underwriters, and therefore, one gets what I may call the nexus of insurance, the nexus of fraudulent act to the prejudice of the underwriters...."
  1. In view of the findings of Lord Widgery in Kray (supra), the existence of some sufficient nexus between the offences is the main component that constitute the offences as of similar character. However, the admissibility of evidence of one offence on the trial of other offence is not necessarily the only factor that determines the nexus between the offences.
  2. Lord Clarke in R v Ferrell ( 2010) UKPC 20), having referred to the passage of 'Archbold' 2010 edition, held that;
"The principles are now set out in the 2010 edition, which includes the following at para 1-158;
"The fact that evidence in relation to one count was not admissible in relation to another count under the old "similar fact" principle did not necessarily mean that those counts could not properly be joined pursuant to this limb of the rule;
A sufficient nexus must nevertheless exist between the relevant offence, such a nexus is clearly established if evidence of one offence would be admissible on the trial of other; but the rule is not confined to such cases; all that is necessary to satisfy the rule is that the offence should exhibit such similar features as to establish a prima facie case that they could properly and conveniently be tried together in the interests of justice, which include, in addition to the interest of the defendants, those of the crown, witnesses and the public"
  1. Accordingly, it appears that the applicable approach in ascertaining the existence of sufficient nexus between the offences is to determine whether the offences constitute of similar features that could establish a prima facie case and could properly and conveniently be tried together in the interest of justice. This approach has been adopted and applied in Fiji by the Fiji Court of Appeal in Tamaibeka v State ( 1999) FJCA 1; AAU0015u.97s ( 8 January 1999), where the Fiji Court of Appeal having considered the principle enunciated in R v Assim ( 1966) 2 All ER 881, held that;
"The general rule relating to severance of trials was thus described by the Court of Appeal in England in R v Assim [1966] 2 All ER 881, 887.
"As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the Court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases."
In the present case, the matters which constituted the offences charged against the first appellant and which constituted the offences charged against the second appellant are closely related. In particular they involve the same payments. We accept that the ingredients of the offences charged against the first appellant are markedly different from the ingredients of the offences charged against the second appellant. However, the background circumstances, the history of the loan application, the condition of the developments at the time the various payments were made, and the purpose of those payments, are all factors common to the charges against each. In our view, these factors are so related that the interests of justice were best served by the two trials being heard together".
  1. Lord Pearson in Ludlow v Metropolitan Police Commissioner (1970 ) 1 ALL ER 567 held that both law and the facts have to be taken into account in deciding whether offences are similar or dissimilar in character. His Lordship went further and defined the nexus between the offences as that;
"Nexus is a feature of similarity which in all the circumstances of the case enable the offences to be described as a series".
  1. In this instant application, Mr. Toa is charged with Mr. Reddy in HAC 268 for one count of Attempted Unlawful Importation of Methamphetamine into Fiji, weighting approximately 79.3 kilograms. The prosecution alleges that they have attempted to import the said alleged illicit drugs in a container, concealing it among spare parts of cars from Mexico via New Zealand by sea. The container came to Suva. Mr. Toa is charged in HAC 116 with two counts ( they are alternative to each other) of Attempt Unlawful Importation of Methamphetamine weighting approximately 20.3 kilograms into Fiji and two more counts with Mr. Seru (they are alternative to each other) for Attempt Unlawful Importation of Methamphetamine into Fiji. The prosecution alleges that Mr. Toa and Mr. Seru allegedly attempted to import the said illicit drugs from Mexico via U.S.A. by air, concealing it inside an industrial cooker.
  2. The Prosecution urges that these two incidents of attempted importation of said illicit drugs constitute similar features as the counts charged in HAC 116 and HAC 268 could properly and conveniently be tried together in the interest of justice. However, the three accused persons find it otherwise. They argue that the incident involve in HAC 268 is different from HAC 117 as the mode of importation and the date of importation are not similar.
  3. Lord Widgray LJ in Kray (supra) held that the approach of joinder of charges should not be unduly restricted as any risk of injustice can be alleviated by the exercise of the court's discretion to sever the indictment.
  4. The prosecution alleges that the two consignments of illicit drugs came into the Fiji in a close proximity of time. Both consignments contained illicit drugs of similar nature, namely Methamphetamine and have been derived from the same consignor and from the same location. Moreover, it appears that the main ingredients of the offences charged against the respective accused persons are similar in nature. Accordingly, in view of the background circumstances, the nature of the illicit substance involved in these incidents, close proximity of the time of the arrival of two consignments and similarity of the ingredients of the offences charged, it is my opinion that these offences form a series of offences of similar nature pursuant to Section 59 (1) (b) and Section 60 (c) of the Criminal Procedure Decree. Hence, I find the prosecution has appropriately properly proposed to join the charges and the three accused persons in one information pursuant to those applicable provisions of the Criminal Procedure Decree.
  5. The second component of this ruling is to determine whether the accused persons are prejudiced or embarrassed with their respective defence due to the reason of being jointly charged under Sections 59 (1) and 60 (c) of the Criminal Procedure Decree.
  6. The learned counsel for Mr. Toa in his submissions stated that it requires two sets of state witnesses to prove the two transactions in the trial, causing impermissible prejudice and a miscarriage of justice against Mr. Toa. The learned Counsel further submitted that there is a strong tendency of increasing the probability of Mr. Toa being found guilty since he and other two accused persons are charged with several counts as it amounts to giving evidence of bad character against Mr. Toa. The learned Counsel invited the court to refer the findings of Lord Blackburn in Castro v The Queen ( 1881) 6 App Case 229 at 244).
  7. Having considered the affidavits filed by Mr. Seru and Mr. Reddy and the respective submissions of their counsel, I find that their objections for the joinder of charges and accused persons are mainly founded on the ground that there is a possibility that the assessors could adversely prejudice against them in view of the evidence which are not admissible against them, if they are tried jointly with other offences and accused persons.
  8. Lord Blackburn in Castro v The Queen ( supra) held that;
"There was no legal objection to doing this; it was frequently not fair to do it, because if might embarrass a man in the trial if he was accused of several things at once, and frequently the mere fact of accusing him of several thing, was supposed to tend to increase the probability of being found guilty, as it amounted to giving evidence of bad character against him. Whenever, it would be unfair to a man to bring him to trial for several things at once, an application might be made to the discretion of the presiding judge to say, "Try me only for one offence, or, try me only for two offences; if one was the real thing let be tried for one and only one" and whenever it was right that should be done the judge would permit it. For these mixed motives it was well established by a long series of decisions that where the several charges were of the nature of felony, the joining of two felonies in one count was so, necessarily I may say, unfair to the prisoner that the judge ought, upon an application being made to him, to put the prosecutor to his election and send them to two trials".
  1. However, the approach of Lord Blackburn in Castro (supra) was not accepted and adopted in Ludlow ( Supra), where Lord Pearson held that;
"In my opinion, this theory- that joinder of counts relating to different transaction is in itself so prejudicial to the accused that such a joinder should never be made- cannot be held to have serviced the passing of the Indictment Act, 1915. No doubt the juries of that time were much more literate and intelligent than the juries of the late eighteen and early nineteen centuries, and could be relied upon in any ordinary case not to infer that, because the accused is proved to have committed one of the offences charged against him, therefore, he must have committed the others as well. I think the experience of judges in modern times is that the verdicts of juries show them to have been careful and conscientious in considering each count separately".
  1. Lord Pearson in Ludlow ( supra) went further and elaborated that in order to establish the existence of prejudice or embarrassment to the accused in his defence, the court must look beyond the mere existence of fact that evidence is admissible on one count and inadmissible on another in order to satisfy that there is some special feature of the case that makes a joint trail of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interest of justice. In doing so, the court is required to consider the complex and the difficult nature of the offence in disentangling the factual or legal issues pertaining to them. If such complexities or difficulties are found, a joint trial of such counts could likely to cause confusion and the accused person may be embarrassed or prejudiced in their defence. Moreover, the court is required to consider whether the counts joined in the information are scandalous in nature and that it can adversely affect the minds of the assessors.
  2. Lord Goddard LCJ in R v Sims ( 1946) 1 ALL ER 697 held that;
"We do not think that the mere fact that evidence is admissible on one count and inadmissible on another is by itself a ground for separate trials; because often the matter can be made clear in the summing up without prejudice to the accused".
  1. In this instant application, I do not find any complexity or convolution of the charges either in respect of factual circumstances or in legal aspect, that could cause any confusion to the accused persons in their defence. The issue of the admissibility of evidence on one count and inadmissibility on another could properly and efficiently be handled in summing up, giving adequate directions to the assessors in that regard.
  2. Accordingly, I do not find that the joinder of charges and the accused persons of HAC 116 and HAC 268 in one information have caused any prejudice or embarrassment to the accused persons. Hence, I allow the prosecution to join the charges and the accused persons of HAC 116 and HAC 268 in one information and refuse the objection raised by the three accused persons.

R. D. R. Thushara Rajasinghe
Judge


At Lautoka
4th of April 2016


Solicitors : Office of the Director of Public Prosecutions
Respondent : Tunidau Lawyers
K Law Chambers
Nazim Lawyers

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