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State v Singh [2015] FJMC 10; Criminal Case 187.2014 (26 January 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No. 187/2014

IN THE MATTER of an application by the State for consolidation of charges pursuant to Section 60 of the Criminal Procedure Decree 2009

BETWEEN:

THE STATE
APPLICANT

AND:

MANJEET SINGH
RESPONDENT

Counsel : Mr.Paka for the Applicant
Ms. Malimali for the Respondent

Date of Ruling : 26th January 2015

RULING

1. The Respondent is charged with 10 counts of Money Laundering contrary to Section 69(2) (a) -3(a) (b) of the Proceeds of Crime (Amendment)Act 7 of 2005.
   
2. In Criminal Case No. 186/2014 one Rajneel Vishal Chaudary is also charged with the same offences.
   
3. The State filed an affidavit of W/Sgt 2003 Bulou Viesewa on 05th November 2014 seeking to consolidate this case with CF 186/2014 pursuant to Section 60 of the Criminal Procedure Decree.
   
4. In the affidavit it was deposed that in both matters the complainants are same and the State would rely on the same facts and witnesses to prove their case .
   
5. The respondent is objecting to this application . The accused in CF 186/2014 is not objecting for this application and therefore did not file any submission.
   
6. The grounds for objection are that the respondent perceives that consolidate this file with the CF 186/2014 would prejudiced a fair trial for him and he will end up being victimized.
   
7. The learned State counsel in submission said allegations in both files arises out of the same facts and for expediency and to avoid delay , the need for uniformity as well for public interest consolidation need to be granted.
   
8. Having considered the respective submissions as well as the affidavits I pronounce my ruling in the following manner.
   
9. The State has filed this application pursuant to section 60 of the Criminal Procedure Decree. Section 60 reads:
   

"The following persons may be joined in one charge or information and may be tried together —

(a) persons accused of the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of –

(i) aiding or abetting the commission of the offence; or

(ii) attempting to commit the offence;

(c) persons 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) persons accused of different offences committed in the course of the same transaction. "

10. In Nagalu v State [2012] FJCA 60; AAu3.2010 (28 September 2012), Court of Appeal said:
    

"In the absence of a clear prejudice to one of the co-accused it is in the best interest that the defendants who are jointly charged should be tried together. The effect of section 121 is that such a charge is joint and several and as such a result alleges a separate offence against each of the defendant.

11. Lord Diplock in the House of Lords in D.P.P. –v- Merriman (1972) 56 Cr. App. AR 766 at 796 observed:
    

"Where a number of acts of a similar nature were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment. Where such a count was laid against more than one defendant the jury could find each of them guilty of one offence only, but a failure by the prosecution to prove the allegation, formerly expressly stated in the indictment but now only implicit in their joinder in the same count, that the unlawful acts of each were done jointly in aid of one another, did not render the indictment ex post facto bad or invalid the jury's verdict against those found guilty. To quote Hawkins again: "On such indictment _ _ _ some of the defendants may be acquitted and others convicted; for the law regards the charge as several against each, though the words of it purport only a joint charge against all".

12. The Court of Appeal in Nagalu v State (supra) also referred to R v Moghal (1977) 64 Cr. App. R 56 at page 62 where it said that:
    

"_ _ _ we think that only in very exceptional cases it is wise to order separate trial when two or more are jointly charged with participation in one criminal offence".

13. In State v Wong Kam Hong [2001] FJHC 298; [2001] 1 FLR 239 (25 July 2001), her Ladyship Justice Shameem in refusing an application for separate trial said:
    

"In Moghal 64 Cr. Appl. R. 56, the English Court of Appeal said (per Scarman J at p. 62) that:

".....we think that only in very exceptional cases is it wise to order separate trials when two or more are jointly charge with participation in one criminal offence".

The reasons for this rule were discussed in Lake 64 Cr. App. R. 172, 175 thus:

"It has been accepted for a very long time in English practice that there were powerful public reasons why joint offences should be tried jointly. The importance is not merely one of saving time and money. It also affects the desirability that the same verdict and the same treatment shall be returned against all those concerned in the same offence. If joint offences were widely to be tried as separate offences, all sorts of inconsistencies might arise".

14. Having considered the above judicial precedents now I would consider the grounds submitted by both parties. The State's position is that the respondent with the accused in CF 186/2014 committed these offences on same transaction against same complainants. They are relying on same witnesses to prove their case . These reasons are valid grounds .
    
15. The respondent objection was based on the fear of not having a fair trial. But this Court is more than capable of making sure that a fair trial is granted to the respondent and therefore there is no reason for him to fear that he would be victimized by consolidation or his rights would be breached. Also I am mindful that the prosecution has the burden to prove these offences beyond reasonable doubt and the respondent is presumed innocent.
    
16. Also the state submitted that there are admissions in the caution statements but this can be decided in a trial within a trial if the parties wishes. Also it is a common law principle that an accused implication against another accused in his confession is not admissible against the other accused.
    
17. Having considered reasons mentioned above I accept the State application to consolidate this charge with CF 186/2014 .
    

H.S.P.Somaratne
Resident Magistrate, Suva