Mr. H. Shah for the Appellant
Ms. N. Shameem for the Respondent
Date of Hearing: 27th November, 1992
Date of Delivery of Judgment:
JUDGMENT OF THE COURT
The appellant, Sheik Amzad Sahib (Amzad) and his older brother Sheik Anwar (Anwar) were jointly charged with three counts of murder
committed on the 2 August 1986. Both pleaded not guilty and Anwar was convicted of all three. Amzad was convicted of murder on counts
two and three and acquitted on count one but convicted of being an accessory after the fact of murder.
Various grounds of appeal and other documents largely drafted by the appellant have been lodged but the appeal before the Court is
now confined to two grounds:
1. That the weight of the evidence does not support the conviction in respect of three counts.
2. That there was a serious misdirection by the learned trial Judge in regard to the confessional statement of the appellant.
We have given leave to appeal on both grounds.
It appears the victim in the first count had been extorting money from Anwar over an insurance claim for a burned shop. The prosecution
case was that, on 2 August 1986, he went to collect more money and was killed by Anwar with a knife. Before he died he called for
help and a number of people ran over including Amzad and a taxi driver who had driven the first victim to the scene. Amzad told everyone
to go back but assisted his brother in killing the taxi driver (count 2).
After his arrest he was interviewed by the police and described what happened:
"I saw ANWAR was armed with a small knife, and that Indian man was lying on the edge of the sugar cane. His face and cloth had
blood. He was only shaking slightly. At the same time ANWAR ran towards the taxi driver. I got hold of the neck of the taxi driver
and press it. His body was loosen. ANWAR then came and strike him with the knife. He fall down. At the same time NASIB's son came.
I told him to assist in loading both of them in the car."
Subsequent post mortem examination reveal the taxi driver had died of a brain haemorrhage caused by a fracture to the skull resulting from a blow
with a blunt object. No stab wounds were found and the prosecution case was that Anwar had struck him with a stone and not a knife.
Amzad described how he went to collect the dead man's taxi and how he and Nasib's son loaded the bodies into it.
"ANWAR pushed Nasib's son and have him sitted in front, and he sat beside him. He told me to drive the car ahead. I reversed
the car in my mother's compound. ANWAR told me to take the car to the Police Station. When I drove the taxi to the main road, then
ANWAR said take it to the flood gate, where the bodies will be dumped. Then I drove the car to the flood gate. One Fijian man was
there. ANWAR said turn the taxi, I then reversed the taxi and turn the taxi towards the main road. When I drove the taxi near the
tremline, then ANWAR stop the taxi. I stopped the taxi. ANWAR opened the door and got off. Turned and strike NASIB's son with the
knife on the neck in front. NASIB's son didn't say anything. He fell in front and struggling for sometime and then was quite."
The post mortem showed the victim's neck was cut deeply enough to reveal the cervical vertebrae and there were two staf wounds in the chest.
After that Amzad described how he drove around following Anwar's directions looking for a place to dispose of the bodies.
"ANWAR told me take the car in the bush on the hills through Fate's road. When I reached near the bush, he said take the car
near the creek. I drove the car near the side of the creek. The car slidded and went sideways. Myself and ANWAR got off. ANWAR and
myself then filled the cane leaves inside the car. ANWAR told me to set fire. I got frightened and set fire to the car. When the
fire started I ran away to my house."
That account accorded substantially with the prosecution case. The record of evidence shows the officer was asked if the first passage
quoted and the last few sentences of the second passage were spoken by the appellant and confirmed they were. That was the only challenge
of the interviews by this appellant.
During the trial, Anwar gave evidence on oath and said that the appellant was not involved in killing the taxi driver. He stated he
had threatened Amzad in order to make him drive the taxi and that Amzad had no part in killing the third victim and, when he assisted
with burning the vehicle, he was acting under Anwar's order.
At the conclusion of his evidence, the appellant made an unsworn statement from the dock.
"I had no dealings whatsoever with those three people and I took no part in the killing of those three. Having seen the incident
I was very much frightened; and I was also being threatened during the incident and I became very much excited. To save myself and
Istiaq's life I had to involve myself in this matter. When the victim in count 1 was dead, then I reached the scene. I also tried
to warn the taxi driver to run away, but he was not prepared to. When Istiaq was killed the car was moving at a very high speed and
I could not help him. That is all."
He called no further evidence.
The reference to his brother killing Nasib's son Istiaq, whilst they were driving at high speed accorded with Anwar's sworn evidence.
Although he based his appeal on the two grounds already mentioned, Mr. Shah for the appellant, has urged both grounds together as
they inevitably interlock. He asks the Court only to consider counts 2 and 3 and no longer pursues the appeal on count one because
the sentence has long been completed as a result of the very long time it has taken this case to reach the appeal Court. We were
much assisted by the careful manner in which Mr. Shah has sifted the lengthy earlier grounds of appeal and produced such concise
and well presented arguments.
He asked us to approach each count in the same way. The misdirection that he claims was made by the learned Judge relates to the way
in which the assessors should approach the statements made by the appellant. It was, he suggests, put in such a way that the assessors
would consider he was directing them to believe the statements in preference to both the unsworn evidence and his brother's evidence
and despite the weaknesses of the prosecution case otherwise. If the Court agrees, it should then consider the weight of the evidence
after excluding these statements. They formed a substantial part of the prosecution case and the evidence is not, we are bound to
agree, particularly strong without them. Mr. Shah urges that, on such evidence alone, the verdict was unreasonable.
Although both grounds were properly urged together, we can conveniently separate them as they raise separate issues and because the
weight that can be given to the evidence on ground one depends substantially on our decision as to the suggested misdirection in
count two.
The duty of the Judge when summing up a case is to draw the assessor's attention to the main points of both prosecution and defence
cases as demonstrated in the evidence. It sometimes happens that the way in which he puts a particular matter that the assessors
have to decide, suggests he has formed an opinion one way or another. Any Judge should try and avoid such inferences but it can happen
as was clearly recognised by the learned Judge in this case because he, correctly, advised the assessors to ignore any such expressions
of opinion and make up their own minds.
Counsel has drawn our attention to a few short passages which he suggests show the Judge expressing a view adverse to the appellant.
It is, of course, impossible to deal with everything at the same time and this Court must look to the effect of the summing up as
a whole. Such a consideration shows the Judge covered all aspects of the case and referred to all relevant matters. Even the passages
selected by counsel are generally posed as questions for the assessors to consider and answer. He equally pointed to the discrepancies
and lacunae in the evidence against the appellant. The whole summing up put the case properly and the assessors were left in a position
to make up their own minds.
We feel there was no misdirection by the learned trial Judge.
That leaves us to consider the evidence, including the statements, in relation to each of the two counts appealed on the ground that
it does not support the convictions. How is the Court to approach this?
Section 23(1)(a) of the Court of Appeal Act sets out our powers:
"23-(1) The Court of Appeal -
(a) on any such appeal against conviction shall allow the appeal if they think the verdict should be set aside on the ground that
it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before whom the appellant
was convicted should be set aside on the grounds of a wrong decision of any question of law or that on any ground there was a miscarriage
of justice and in any other case shall dismiss the appeal."
The present wording is from the Court of Appeal (Amendment) Decree 1990 but, in this part, follows exactly the wording of the previous
section.
It also follows the wording of the English Court of Appeal Act 1907 and authorities under that section suggest the question the appellate
Court should ask itself is whether there was evidence before the Court on which a reasonably minded jury could have convicted.
Authorities in England since the passing of the 1966 Act are based on the requirement that the Court shall consider whether the verdict
is unsafe or unsatisfactory. That test has given a number of appeal decisions based on a wide ranging consideration of the evidence
before the lower Court and the views of the appellate Court on it. We were urged to make it the basis of our consideration of the
present case but section 23 does not allow us that liberty and the powers of this Court are limited by the statute that created it.
The difference of approach between the two tests was concisely stated by Widgery LJ in the final passages of his judgment in R v Cooper (1968) 53 Cr. App. R 82.
Having considered the evidence against this appellant as a whole, we cannot say the verdict was unreasonable. There was clearly evidence
on which the verdict could be based. Neither can we, after reviewing the various discrepancies between the evidence of the prosecution
eyewitnesses, the medical evidence, the written statements of the appellant and his and his brother's evidence, consider that there
was a miscarriage of justice.
It has been stated many times that the trial Court has the considerable advantage of having seen and heard the witnesses. It was in
a better position to assess credibility and weight and we should not lightly interfere. There was undoubtedly evidence before the
Court that, if accepted, would support such verdicts.
We are not able to usurp the functions of the lower Court and substitute our own opinion.
The appeal is dismissed.
Before leaving this case, we would add a further comment. Section 299 of the Criminal Procedure Code provides that the Judge must hear and record the opinions of each assessor and then give his judgment. He is not bound by their opinion
but it is only if he does not agree that his written judgment need record anything more than his decision. Subsection (2) provides
that the Judges' summing up and the decision of the Court together with, where appropriate, the Judges reasons for differing from
the majority opinion of the assessors, shall collectively be deemed to be the judgment of the Court.
We consider that is an unfortunate provision for an appellate Court trying to review the judgment. Despite the presence of assessors,
the decision to convict is the Judge's and the Judge's alone. In order to reach it, he has to consider the witnesses and the various
discrepancies, inconsistencies and gaps in the evidence and decide what he accepts and what he rejects. The summing up can tell the
appellate Court whether he considered and considered correctly the various matters of law and which aspects of the evidence he found
important and relevant but the very nature of the summing up prevents him expressing his opinion on the vital matters that determine
guilt or innocence. An appeal may be based on a suggested misinterpretation of that evidence or his reliance on a particular point
which is unreasonable. The summing up cannot assist on these matters. As long as he does not differ from the final opinion of the
assessors, the Judge need give no reason and yet may have reached the conclusion by a totally different route. It seems an inescapable
conclusion that the summing up does not provide an accurate ground on which to base our consideration of the Judge's decision.
A Magistrate, sitting without assessors and lacking, therefore, the benefits conferred by the proviso to section 299(2) is bound to
include in his written judgment the point or points for determination, the decision thereon and the reasons for the decision. That
is, we feel, a sensible and proper provision that enables the High Court, when hearing an appeal from the Magistrate's decision,
to assess the propriety of the decision. It seems inconsistent, to say the least, that a defendant convicted before that same High
Court is not given similar protection should he appeal from its decision.
Sir Moti Tikaram
Vice-President
Sir Mari Kapi
Justice of Appeal
Mr. Justice Gordon Ward
Justice of Appeal
Aau0018u.87s
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