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Chand v The State [2005] FJCA 60; AAU0058.2004 (11 November 2005)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL N0. AAU0058.2004
(High Court Cr. Appeal N0. HAC0004.2004L)

BETWEEN:

HEMANT CHAND
s/o Moti Chand
Appellant

AND:

THE STATE
Respondent

Coram: Ward, President
Wood, JA
Ford, JA

Hearing: Monday, 7th November, 2005, Suva

Counsel: H.A. Shah, Esq for the Appellant
R. Gibson for the Respondent

Date of Judgment: 11th November, 2005

JUDGMENT

[1] The appellant pleaded not guilty to on count of manslaughter, contrary to sections 198 and 201, and to one count of wrongful confinement, contrary to section 253, of the Penal Code. He was convicted by the learned trial judge, concurring with the unanimous opinions of the assessors, and sentenced to three years imprisonment on the first count and 7 months imprisonment concurrent on the second.

[2] He has appealed against conviction and sentence on a number of grounds. However, at the hearing, he proceeded only on the ground that the learned judge failed to direct the assessors on the intent necessary for the offence of confinement under section 253 and, as that was the unlawful act relied upon for the charge of manslaughter, it also amounted to a misdirection on that offence.

[3] The facts briefly were that, on 31 January 2002 at about 1.0 am, the deceased, another female friend and an Indian man were passengers on the back of the applicant’s carrier. They and others, apart from the appellant, had been drinking beer and the deceased, who was described as very fat, was very drunk. The appellant told the police when interviewed that, at one point, he had asked the deceased for sex but she had refused. After the drinking, the two women told the appellant they wanted to be taken only to the junction of the Nadhari Road and Kings Road.

[4] The prosecution case was that, when they reached that point, the applicant did not stop fully but the other woman, who was described as skinny, was able to get off the vehicle as it slowed. However, the applicant then accelerated away from the junction and continued despite the passengers at the rear banging on the cab and shouting. The deceased then stepped off the moving vehicle. The driver did not stop.

[5] The other woman saw that the deceased was unconscious and bleeding from her nose. She was unable to move her and had to seek the assistance of an uncle. The deceased was taken to a nearby house where she was made comfortable. She was still unconscious and was taken to hospital the following day where she died on 5 February 2002. The post mortem examination revealed that death had been the result of extensive subdural haemorrhage.

[6] The appellant gave evidence that he had stopped at the junction to let the women off and the thinner woman had then told him to go on. He had not realized the other woman still wanted to get off. He had not heard any shouts to stop or bangs on the roof of the cab.

[7] The prosecution case throughout was that the unlawful act upon which the charge of manslaughter was based was the wrongful confinement. The second count had charged that offence under section 253 and the learned judge described the wrongful confinement in the terms of that section. The particulars in the indictment state that the appellant “on 31^st day of January 2002, at Kings Road Varavu, Ba in the Western Division wrongfully confined Titilia Saro in his vehicle CL 136”.

[8] The particulars of offence are intended to give the accused person sufficient information to understand the nature of the charge being brought against him. A prosecutor is wise, when drafting the particulars, to have the section open and ensure the essentials of the allegation are included. Those particulars were appropriate to a charge of wrongful confinement under section 256 but a comparison with the wording of section 253 shows they were, in this case, inadequate:

“253. Any person who, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, is guilty of a felony, and shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose, as that with or for which he conceals or detains such person in confinement.”

[9] In his summing up the trial judge commenced his direction on the law by pointing out:

“To establish the charge of manslaughter arising from the unlawful act of the accused, the prosecution must prove that the death resulted from the accused’s unlawful act.”

[10] He then directed the assessors correctly on the offence of manslaughter and continued:

“Here the unlawful act upon which the prosecution relies is the wrongful confinement. Wrongful confinement relevantly is the abduction and subsequent detainment or confinement of the person. It is submitted the deceased was in fact abducted and wrongfully confined from the intersection of Nadhari Road and Kings Road, from the point at which, she was unable to get out of the carrier.”

That was the total direction on wrongful confinement and it omits any indication of the need for the prosecution to prove the intent nor of the nature of the intent.

[11] Section 253 requires the person confining to know that the person he is confining had been abducted or kidnapped. The prosecution case was clearly that the appellant had abducted her and so would have had the necessary knowledge but it is not a necessary ingredient of the offence, as the judge appears to suggest, that the accused also carries out the abduction. He simply needs to know that an abduction had occurred

[12] Abduction is defined in section 248(b):

“(b) any person who by force compels, or by any deceitful means induces any person to go from any place is said to abduct that person.”

and that definition covers the events in the present case.

[13] To prove an offence of wrongful confinement under section 253 when there has been an abduction, the intent of the person who confines him or her is the intent of the abductor. However, abduction is only an offence under the criminal law if it includes one of the intentions set out in sections 250, 251 or 252:

“250. Any person who kidnaps or abducts any person in order that such person may be murdered, or may be disposed of as to be put in danger of being murdered ...

251. Any person who kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined ...

252. Any person who kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to grievous harm, or slavery, or the unnatural lust of any person or knowing it to be likely that such person will be so subjected or disposed of ...”

[14] In order to convict of wrongful confinement under section 253 the prosecution must prove that the accused had one such intention at the time. Unfortunately the learned judge made no mention of any of them and, indeed, the prosecution did not appear to suggest any could apply. The direction to the assessors simply suggested that, if the assessors found it proved that the appellant had, by his failure to stop, prevented the deceased from leaving the carrier, he had abducted and confined her and they must find him guilty of wrongful confinement under section 253.

[15] A finding on such a basis falls well below the required proof of intention and the conviction on the second count must be set aside.

[16] Following the passage set out above, the learned judge referred briefly and correctly to the defence of mistake of fact before returning to the wrongful confinement in relation to the charge of manslaughter:

“If you are satisfied beyond a reasonable doubt that the accused wrongfully confined the deceased and that the deceased died as a result of that wrongful confinement then you will advise me that the accused is guilty on both counts. If however you are not satisfied beyond a reasonable doubt the accused wrongfully confined the deceased, then you will advise me that the accused is not guilty of wrongful confinement and is not guilty of manslaughter.”

[17] The reference there is to wrongful confinement omitting the earlier reference of abduction and counsel for the prosecution has suggested that this, correctly, put the unlawful act no higher, in effect, than an offence under section 256. Thus the conviction of manslaughter was, in the light of the assessors’ clear view of the evidence, properly reached and should stand. We cannot agree for two reasons.

[18] First, even if the judge was directing the assessors that the unlawful act the prosecution had to prove was only wrongful confinement in terms of the misdemeanour under section 256, he gave the assessors no direction on the necessary mental element for that offence. The assessors are laymen and the judge’s duty is to ensure that they understand the law to the extent that their decision will be based on a consideration of all the relevant elements. Nowhere is it explained that the prosecution had to satisfy the assessors that the appellant unlawfully confined the deceased against her will and knew that he was doing so.

[19] The second reason we disagree is that, although the judge omitted the reference to abduction in the second passage we have quoted, he had already included it in the earlier reference to wrongful confinement but without any direction on the meaning of the term in relation either to the act or the mental element. On the basis of that direction, the assessors’ opinion was that an offence under section 253 had been proved. That must have included a finding that an abduction had been proved but, without a clear direction on what that involves, it is impossible to know whether that opinion was based on a correct understanding of the offence. We consider there is a risk that having decided there had been an abduction, they may have used that as the basis of their finding that it was an unlawful act sufficient for the manslaughter charge.

[20] A reasonable interpretation of the judge’s directions taken as a whole is that the decision on manslaughter should follow the verdict on wrongful confinement under section 253. The assessors’ opinion on the latter required them to accept that both abduction and wrongful confinement had occurred yet the judge gave no direction on the elements of either.

[21] The appeal against conviction is allowed. The convictions for manslaughter and wrongful confinement must be set aside. We direct that the case be returned to the High Court for retrial on the charge of manslaughter. The evidence was insufficient to establish an offence under section 253 and we acquit the appellant on that count.

Order:

1. The appeal against conviction is allowed and both convictions set aside.
   
2. A verdict of acquittal is entered on the charge of wrongful confinement, contrary to section 253 of the Penal Code.
   
3. The case is remitted to the High Court with an order for a new retrial on the charge of manslaughter.
   
4. The appellant’s bail is extended on the same terms to attend the High Court in Lautoka on 28 November 2005 so he can be advised of the date of the retrial.
   

Ward, President
Wood, JA
Ford, JA

Solicitors:

H.A. Shah Esq., Solicitor, Lautoka for the Appellant
Office of the Director of Public Prosecutions, Suva for the Respondent