State v Senivalati Ramuwai and Others HAC033X.05S - Law Fiji

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IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No: HAC 033 of 2005
STATE
v.
SENIVALATI RAMUWAI
RUPENI NAISORO
NEMANI TUICAKAU
Hearing: 8 th May 2007
Ruling: 9 th May 2007
Counsel:
State
Mr. D. Toganivalu & S. Vodokisolomoni for
Ms S. Vaniqi for 1 st Accused
Mr. S. Valenitabua for 2 nd Accused
Mr. A. Naco for 3 rd Accused
Ruling on No Case to Answer
The 2 nd and 3 rd Accused submit that there is no
case for them to answer. The 2 nd Accused agrees that
if his admissions to the police continue to be part of
the evidence, then there is a case for him to answer.
However he asks me to revisit my earlier ruling on the
trial within a trial, and to now exclude the
admissions. Without those admissions, he submits,
there is no case for him to answer. The 3 rd Accused
submits that the circumstantial evidence fails to
implicate him in the offence of murder, and that
therefore there is no case to answer.

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The test at this stage of a criminal trial in the
High Court is set out in section 293 of the Criminal
Procedure Code. That section provides:
“(1) When the evidence of the witnesses
for the prosecution has been concluded,
and the statement or evidence (if any)
of the accused person before the
committing court has been given in
evidence, the court, if it considers
that there is no evidence that the
accused or anyone of several accused
committed the offence, shall, after
hearing, if necessary, any arguments
which the legal practitioner for the
prosecution or the defence may desire
to submit, … record a finding … of not
guilty.
(2) When the evidence of the witnesses
for the prosecution has been concluded,
and the statement or evidence (if any)
of the accused person before the
committing court has been given in
evidence, the court, if it considers
that there is evidence that the accused
person or anyone or more of several
accused persons, committed the offence,
shall inform each such accused person
of his right to address the court,
either personally or by his legal
practitioner (if any), to give evidence
on his own behalf, or to make an
unsworn statement, and to call
witnesses in his defence, and in all
cases shall require him or his legal
practitioner (if any), to state whether
it is intended to call any witnesses s
to fact other than the accused person
himself. Upon being informed thereof,
the judge shall record the same. If
such accused person says that he does
not mean to give evidence or make an
unsworn statement, or to adduce
evidence, then the legal practitioner
for the prosecution may sum up the case
against such accused person. If such

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accused person says that he means to
give evidence or make an unsworn
statement, or to adduce evidence, the
court shall call upon such accused
person to enter upon his defence.”
The test is whether there is evidence in respect
of each ingredient of the offence. As was said in
Sisa Kalisoqo v. State Crim. App. No. 52 of 1984 and
State v. Mosese Tuisawau Crim. App. No. 14 of 1990, if
there is some relevant and admissible evidence, direct
or circumstantial, touching all the elements of the
offence, then there is a prima facie case. That is
the test in a criminal trial in the High Court when
the prosecution has closed its case.
The 2 nd
Accused
There can be no dispute that in the tendered
caution interview purportedly made by the 2 nd Accused,
there is evidence of a prima facie case. In it, after
Q71 and 72, the 2 nd Accused, allegedly under pressure,
took part in a series of acts which led to the death
of the deceased. To what extent he acted under
compulsion, and to what extent the interview is a
reliable set of facts, are issues for the assessors.
Counsel however asks me to revisit the question
of the admissibility of the confession on the basis
that the court has now heard Moape Kadavu’s evidence
and on the basis that there is now compelling evidence
of police unfairness and pressure.
I accept that a court can reconsider an earlier
ruling at any time during the trial. In R v.
Sat-Bhambra 88 Cr. App. R. 55 it was held that once a

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confession was ruled admissible, the judge could not
re-open the question of oppression or lack of
reliability (under section 76 of the Police and
Criminal Evidence Act U.K.) but could direct the jury
to disregard the statement or to consider certain
matters relevant to the weight to be attached to the
statement, or if this was not possible without
residual prejudice, he could discharge the jury and
hold a trial de novo. I adopt the same principles for
the purpose of these submissions.
Moape Kadavu gave a statement to the police on
the 9 th of June 2005, in which he implicated the 1 st ,
2 nd and 3 rd Accused. According to the evidence of the
investigating officer Corporal Vijendra Nand, Kadavu
made a verbal statement to him, the day before (on the
8 th of June) and was told to go home and return the
next day to make a written statement. Earlier, on the
2 nd of May 2005, Kadavu had made a statement that he
had picked the 2 nd Accused up from the Matacula road,
taken him to Namau where Kadavu had dropped a
passenger, and then dropped the 2 nd Accused at his home
in Mayawasara. On his way back to Korovou, he saw the
deceased’s van being driven towards Matacula after
8pm. In his sworn evidence in court, Kadavu
maintained the story of the 2 nd of May. That story was
inconsistent with the 2 nd Accused’s caution interview
and in effect provides the 2 nd Accused with an alibi.
Kadavu’s second statement implicated all three accused
and is broadly consistent with the 2 nd Accused’s
caution statement from Q71.
Kadavu was declared hostile and was
cross-examined.
Under cross-examination he said that

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on the 3 rd of May 2005, he was taken to the Korovou
Police Station where he was threatened with assault by
police officers. Under cross-examination by State
counsel, he said that he had been threatened by one
Constable Iosefo on the 8 th of June and told to admit
that he had met the three accused, or he would be
locked up and beaten.
Under cross-examination by Ms Vaniqi, he
maintained this position. Under cross-examination by
Mr. Valenitabua, he gave evidence of the truth of this
first statement, and said that his second statement
was forced out of him.
Counsel for the 2 nd Accused submits that when the
2 nd Accused’s alibi was checked, and the interviewed
re-commenced at 2.30pm at Nausori Police Station, the
2 nd Accused was told that Kadavu had implicated him.
This was false and the remaining parts of the 2 nd
Accused’s statement was therefore unfairly obtained.
The evidential value of the testimony of a
hostile witness is a matter for the assessors, after
they have been directed to exercise extreme caution in
accepting any part of his evidence. This is because
he has given two different accounts of events, and
witnesses who change their evidence (for whatever
reason) are not always reliable. Although at “no
case” stage, a judge is not required to assess the
credibility of witnesses, such assessment is
inevitable when considering whether a confession ought
to be placed before the assessors. The question for
me is whether Kadavu’s evidence creates a reasonable
doubt about the voluntariness and fairness of the 2 nd

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Accused’s statement to the police.
In my view, it does not. Kadavu did not allege
assault or pressure on the 2 nd or 3 rd of May, when he
gave evidence in the trial proper. He alleged
pressure on the 8 th of June 2005. The police evidence
about the way in which the 2 nd Accused’s statement was
obtained remained unaltered. The police evidence was
that the 2 nd Accused was treated fairly and that when
confronted with a false alibi, he started to confess
at 2.30pm on the 3 rd of May 2005. The weight to be
given to Kadavu’s evidence will affect the question of
the reliability of the confession at the end of trial.
I do not consider that his evidence affects my ruling
on admissibility.
There is a case to answer for the 2 nd Accused.
The 3 rd
Accused
The evidence against the 3 rd Accused is
circumstantial. He made no admissions to the police
but there is some evidence from his police statement
that he was not in the Top Taste restaurant at the
time of the murder of the deceased.
The question for me is whether taking all the
circumstantial evidence together, there is relevant
and admissible evidence implicating the accused in
relation to the offence charged.
The 3 rd Accused according to the prosecution case,
was seen drinking at the Korovou Club from 6pm. At
about 7pm he was seen at the Top Taste Restaurant with

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another man to drink further. The 3 rd Accused was seen
at the Tailevu Hotel with the 1 st Accused and some
other men until 9pm. He then went to the Tailevu
Hotel. He met the 1 st Accused after 10pm. In the
early hours of the 30 th of April, the 3 rd Accused was
seen near the bridge at Korovou with the 1 st Accused.
In his statement of the 3 rd of August the 3 rd
Accused said he had been drinking with one Vuniani
Vasuca from 4pm on the 29 th of April, at the Tailevu
Club. The 1 st accused was also there. When the Club
closed he went to the Top Taste restaurant with a
“young man from Navunisole and the young man from
Gau.” He was then confronted with William Naitaka
from Navunisole who said that “he did not accompany
you to the Tailevu Hotel after drinking at the Top
Taste restaurant.” The 3 rd Accused agreed to this. He
denied going to the Tailevu Hotel with the 1 st Accused,
saying he had gone with the man from Gau. He denied
going to the Top Taste restaurant with the 1 st Accused
at 7pm, and he denied being with the 1 st Accused at
midnight when he was allegedly seen by Simione
Momoivalu at the bridge in Korovou. He also denied
being with the 1 st Accused at 9.30pm near the Tailevu
Hotel but later admitted when confronted by Mesake
Tabaka that he had been near the hotel. However he
denied being with the 1 st Accused.
It is not my duty at this stage of the trial to
assess whether the evidence of the police statements
is reliable, or the evidence of the prosecution
witnesses. The prosecution case is that between 9 and
9.30pm the deceased was murdered near the Matacula old
road junction at Korovou. The evidence of Tevita

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Matakitogo is that he saw the 1 st and 3 rd Accused
together between 9.30pm and 10pm at the Tailevu Hotel.
That was the first time he had seen the 3 rd Accused.
The evidence of Mesake Tabaka was that the same two
men who had been drinking together at the Club until
9pm were at the Tailevu Hotel at 10.30pm. At 12
midnight, Simione Momoivalu saw the 1 st and 3 rd Accused
coming down from the Tailevu Hotel towards the bridge.
The question for the assessors, in a case of
circumstantial evidence is whether, taking all the
evidence together, the only reasonable conclusion to
be drawn, is the guilt of the accused. The question
is whether there is any other inference to be drawn,
which is equally consistent with his innocence.
Assuming therefore that all the prosecution
witnesses are reliable in their identification of the
3 rd Accused, and assuming the reliability of the 3 rd
Accused’s statements to the police, the evidence is
that the 3 rd Accused was seen with the 1 st Accused from
about 6pm on the 29 th of April to 12 midnight. They
were not always together. He was seen alone at the
Top Taste at about 7pm. But he was with the 1 st
Accused at about 9pm and with him at 10.30pm. It is
difficult to put a time on his visits to the Top Taste
restaurant but the police statement suggests that he
was there after 9pm and before 10pm. The
confrontation with William Naitaka does not contradict
his visit to the Top Taste. It only contradicts his
story about going to the Tailevu Hotel with Naitaka.
However his statement of the 5 th of May does not
specifically say that he went with Naitaka. It
appears to refer only to a young man from Gau who has

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remained nameless and unknown. He agreed that he met
the 1 st Accused at the Hotel at about 10pm.
The evidence therefore discloses an entire
evening of drinking heavily with several men. In the
course of the drinking, the 1 st and 3 rd Accused were
indeed seen together. However there is no evidence at
all that the 3 rd Accused was in the deceased’s van, or
that he left Korovou town, or that he knew of any plan
to assault the deceased. Taking all the evidence
together, there are many inferences which could be
drawn which are entirely consistent with the 3 rd
Accused’s innocence. The most obvious is that he was
at the Top Taste restaurant, or at the Tailevu Hotel
when the murder occurred. William Naitaka did not
deny being at the Top Taste with the 3 rd Accused, he
only denied going on to the Hotel with him.
The evidence implicating the 3 rd Accused does not
go beyond evidence of association with and drinking
with the 1 st Accused. In making this assessment, I do
not draw any conclusions about the reliability of the
prosecution evidence. I have assumed for instance
that the first-time dock identification of the 3 rd
Accused by Mesake Tabaka is accurate and reliable, and
that Simione Momoivalu did indeed see the 1 st and 3 rd
Accused together at midnight on the 29 th of April.
On all the evidence of the prosecution I cannot
say that there is any evidence implicating the 3 rd
Accused in the offence charged. Suspicion and
association cannot be enough to put an accused person
to his defence.

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I find therefore that there is no evidence that
the 3 rd Accused was involved in the murder of Navneet
Kumar and I find him not guilty. He is acquitted of
the offence charged. He may stand down.
Nazhat Shameem
JUDGE
At Suva
9 th May 2007