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Mani v The State [2006] FJCA 22; AAU0033.2002S (24 March 2006)

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

CRIMINAL APPEAL NO. AAU0033 of 2002S
(High Court Criminal Action No. HAC0003 of 2000L)

BETWEEN:

AVINESH VIKASH MANI
Appellant

AND:

THE STATE
Respondent

Coram: Ward, President
Scott, JA
Ford, JA

Hearing: Wednesday, 22 March 2006, Suva

Counsel: Appellant in Person
Mr. R. Gibson for the Respondent

Date of Judgment: Friday, 24 March 2006, Suva

JUDGMENT OF THE COURT

Introduction

[1] On the 18th July 2002, following a trial in the High Court at Lautoka, the appellant was found guilty of one count of murder and one count of attempted murder. He was sentenced to life imprisonment on the first count and to 11 years imprisonment on the second. Both sentences were to be served concurrently.

[2] On 7 August 2002 the appellant's then counsel filed a notice of appeal which was subsequently abandoned. On 12 July 2004 the appellant personally filed a notice of appeal out of time and on 20 January 2005 a single judge of this Court granted leave for the appeal to proceed. The matter had been listed for hearing at the November 2005 session but, for reasons we need not traverse at this stage, it was then adjourned until the present session. In the interim, additional submissions were filed by both the State and the appellant.

[3] The appeal has proceeded on the basis that it is an appeal against conviction and sentence but the appellant sensibly conceded that if he is unsuccessful in his appeal against the murder conviction then the appeal against sentence is no longer a relevant issue. The appellant was not legally represented before us but he appeared in person. In his submissions, State Counsel fairly and appropriately addressed matters relevant to our consideration of the issues and cited authorities.

The Facts

[4] The facts relating to both counts were closely interwoven. The incident giving rise to the charges occurred on the 11th June 1999.

[5] The victim of the attempted murder charge, 36-year-old Roshni Lata, lived on her father's cane farm at Dakavono, Tavua. Her mother was deceased and in 1993 her father had moved to live in Canada. Roshni had two children from a failed marriage. They had been adopted in the customary way by her father and they were living with him in Canada. At the time her father left for Canada, he gave instructions for Roshni to manage the cane farm and for the appellant and his father, Subarmani, to run the farm. It would seem that Subarmani had a financial interest in the farm and he was paid money by Roshni.

[6] They all lived in the same house on the cane farm. The house had two bedrooms, a sitting room, a dining room, a kitchen and a passageway. Roshni occupied one-bedroom, the kitchen and half the passageway. The appellant, his wife and baby son, along with his father occupied the rest of the house. Roshni described her relationship with the appellant as 'like brother and sister'.

[7] Next door to Roshni's house, on the same compound, lived Roshni's uncle (her father's brother), Gopallan Gounder, who was also a cane farmer. Gopallan lived with his wife, Soni, two of their daughters and a son. The son worked and the two daughters attended school. Soni was the victim of the murder charge.

[8] Roshni's father had returned from Canada for a period in 1996 and he learned that the appellant had taken employment at the Emperor Gold Mine Company. Roshni’s father was not happy because the appellant was supposed to be working the farm but he allowed him to continue living in the house. The accused's father carried out all the farm work on his own.

[9] Roshni told the court that at about 7 a.m. on the day of the incident, Friday 11 June 1999, Subarmani approached her and complained that his son (the appellant) and his wife had not been looking after him properly for five years and if they stayed on in the house then he would no longer work on the farm. Roshni told him to stay and wait for her father and she suggested that he should tell his son and daughter-in-law to go and rent.

[10] That conversation, it would seem, triggered off the day's events. Subarmani said in evidence that he spoke to the appellant, when he came in from cutting cane at 9 a.m. to have breakfast, and he told him to go and look for a house because Soni and her father did not want him in the house.

[11] A police officer told the court that at 10:30 a.m. that same day, the appellant came to Tavua Police Station and told him that his landlord was trying to evict him and he wished to stay with his father who was a sick man. The officer told him to see a

lawyer. The appellant saw a lawyer and there was also evidence that, before he returned to the farm that afternoon, he purchased a bottle of gin from New World.

[12] The narrative is then taken up by Roshni's evidence in chief:

'After the accused went away, then I saw him back at 2 o'clock. Then I went to bath in my auntie's bathroom. Then I came back to my house and was going to prepare tea. When I was making tea I saw accused come into kitchen with a long handle knife. This was about four o'clock. Knife -- long handle, sharp and shining. I was in kitchen. I heard his footsteps, turned and saw him. He started hitting me with the knife. First he hit me on the head (back, points) then on the neck. Then I asked him why he was hitting me. He said nothing. Then he hit me again. I saved with left-hand (shows cut) -it's not working now. Was working before. He was trying to hit on my face. Two injuries - first on hand above elbow. Then behind elbow. Also on palm (shows injuries). Also on palm and fingers. Hitting me with knife. Then he kicked me and I fell down. I closed my eyes -- blackout because of blood I saw. Accused stood beside me and said 'I am going to someone' (uske pass). Did not name who.

When accused left me then I stood up and locked the kitchen door and stood behind door. After a while I heard my auntie yelling 'help, help'. Auntie was Kamla (Soni). After that I did not hear any more from her (voice). 10 -- 15 minutes later accused came again. He tried to open kitchen door which was locked. Then he came around and saw me standing near louvre window (16 blades). He saw me through window and said 'You are still alive, you have not died.' He climbed into the window. Table behind window and kerosene stove on it. He threw the stove and tried to enter kitchen. I opened kitchen door and ran out. He followed me with cane knife. I ran towards uncle's driveway past his house. Crossed his compound. Accused still followed me. He managed to hold me by my hair from the back. He pulled me towards cane field. He pushed me onto ground. He put one foot on my chest and one on my stomach and stood over me. He hit me with knife. Tried to hit me on my neck and I saved with right-hand (shows injury). I begged him not to hit me. Then his wife came. She managed to pull knife away from him. Threw knife away. She lifted me from ground and with another boy they brought me to my uncle's compound.'

[13] The 'help, help' calls Roshni heard from her aunt, Soni, were also heard by Soni's daughter, Karishma, who had just arrived home from school. Karishma told the court:

'When we came back from school. I came back as I entered the compound I saw accused chasing my mother with a cane knife. Mum is in front and accused behind. I dropped my school bag at porch and I followed them. My mum shouted 'help, help'. I also yelled for help. Went to back of compound. Accused held my Mum's hair and pushed her down climbed over her. Tried to press her neck/choke her. I stood beside our kitchen and said to accused why you doing like this? I said so four or five times. He told me to go away or he'll also kill me. . . . I then ran to my kitchen passage and could see everything. I saw accused hit my mother on the neck with cane knife.'

[14] The evidence was that Soni died at the scene. Roshni was treated at Tavua Hospital.

Grounds of Appeal

[15] The appellant's first ground of appeal related to his assertion that, in breach of section 27(1)(d) of the Constitution, he was never given the opportunity to have a lawyer present when he was interviewed by the police. The difficulty for the appellant, however, is that both the officer in charge of the case and the police officer who countersigned his statement told the court that the accused had been asked prior to the commencement of the interview whether he wished to contact a solicitor and he had answered in the negative. Neither officer was challenged on their evidence in this regard. There is no factual basis, in other words, to support the first ground of appeal.

[16] The next ground of appeal related to what the appellant referred to as the failure of the judge to identify 'numerous substantial misconduct by the interrogators when interviewing and handling your appellant during the presentation of the case.' Expanding on this ground of appeal through written submissions, the appellant referred to the failure of the police officer who carried out the arrest to inform him of the ground for his arrest; to the failure of the police to explain his right to consult a lawyer and to the actions of the police in conducting the interview at 3 a.m. when he had allegedly been without sleep for some 29 hours.

[17] We have already dealt with and rejected the appellant's proposition that he had not been informed of his rights to consult a lawyer.

[18] Referring to the other matters raised, State Counsel stressed that the appellant was represented at trial by an experienced senior counsel. We agree with that observation. There is no information in the record relating to the circumstances of the appellant's arrest. No questions were directed at the police witnesses on the issue. Objection cannot be taken at this stage. Similarly, no objection was taken by appellant's counsel to the admissibility of the caution statement given to the police. On the contrary, counsel, in his final address, specifically relied upon answers the appellant had given to the police in that statement to support the defence of provocation.

[19] An accused person is bound by the way in which his counsel elects to conduct the defence. This court will only interfere if there is evidence of flagrantly incompetent advocacy leading to a miscarriage of justice. That is far from the position in the present case. There is no substance in this ground of appeal.

[20] The final ground relates to the judge's directions on the issue of provocation. It is alleged that he failed to stress adequately the 'excessive effects of provocation upon the appellant.' Defence counsel had contended at the trial that the accused was a peaceful man but he had been provoked by 'insults and taunts' directed at him by the deceased immediately prior to the attack. State Counsel responded that it was not the judge's role to stress the evidence the appellant wished to rely upon in support of his defence. Counsel submitted that the judge had adequately dealt with the issue of provocation and, as he put it: 'Even if it was accepted that the deceased used some bad language in the context of a tenancy dispute' that was not sufficient provocation to induce an ordinary person to carry out the kind of 'sustained and brutal attack with a cane knife inflicted by the appellant.'

[21] The judge dealt at some length with the issue of provocation. The appellant did not give sworn evidence but he made an unsworn statement in which he said that after he arrived back from town, Soni and the deceased 'started to say very filthy words, very abusive words to me' and they accused his mother and sister of being prostitutes. He said that those taunts caused him to lose his self-control. He picked up the knife and walked towards the ladies intending only to frighten them but as he approached they taunted him further and, as he put it, 'this is when I lost my absolute self-control.'

[22] When that allegation was put to Roshni in cross-examination she denied having ever called the appellant's mother or sister prostitutes or having done anything to provoke him to attack her and her aunt. In his summing up to the assessors, the judge properly explained that provocation was only applicable to the murder charge. He also repeated verbatim all that the appellant had said in his unsworn statement and, in this way, he reminded the assessors of everything the appellant relied upon in support of his allegation that he had been provoked.

[23] In his supplementary written submissions, the appellant took the provocation issue further. He claimed that at the time of the incident he had been without sleep for almost 24 hours and he made reference to an article in an edition of the American Medical Association Journal which, he said, stated that after 24 hours of sleeplessness, an individual's 'motor performance is comparable to that of a legally intoxicated person.' The article in question was never referred to at the trial nor have we seen it but, against that background, the appellant was critical of the judge for failing adequately to explain to the assessors the likely effect of the alleged provocation on his state of mind, given his 'mental state and capacity' at the time.

[24] Under section 204 of the Penal Code, however, the standard of control to be considered for the purposes of the defence of provocation is an objective standard assessed by reference to the powers of self control of an ordinary person rather than the powers of control of the particular defendant.

[25] The common law test was recently reaffirmed by a majority decision of an enlarged Board of the (UK) Privy Council in Attorney-General for Jersey v Holley [2005] UKPC 23; [2005] 3 All ER 371. In that case the Privy Council was dealing with an appeal from the Court of Appeal of Jersey. The relevant provision in the Jersey Homicide Law 1986, consistent with the common law, was expressed in similar terms to the wording of the Penal Code but it referred to the self-control of a 'reasonable man' rather than an 'ordinary person'. Lord Nicholls, delivering the judgment of the majority of the Board said:

'The statutory reference to a 'reasonable man' in this context is, by common accord, not the best choice of words. It is difficult to conceive of circumstances where it would be 'reasonable' for a person to respond to a taunt by killing his tormentor. Rather, the phrase is intended to refer to an ordinary person, that is, a person of ordinary self-control.'

[26] In Holley it was held that evidence that the defendant was suffering from chronic alcoholism at the time of the fatal assault was not a matter to be taken into account by the jury when considering whether a person having ordinary powers of self-control would have done what the defendant did. Likewise, in the present case, the effect of the alleged significant period of sleeplessness on the mental state of the accused was not a matter which needed to be taken into account in considering the issue of provocation.

[27] There is one concern we do have, however, about the directions on provocation, although it was not one of the grounds of appeal nor was it argued before us. While the judge stressed in his general directions that the onus of proof lay upon the State to prove the case against the appellant beyond reasonable doubt and that there was no obligation upon the appellant to prove his innocence, he did not direct the assessors, as he should have done, that once there is evidence capable of supporting a finding of provocation, the burden is on the prosecution to prove beyond reasonable doubt that the case is not one of provocation.

[28] A similar situation was considered by this Court in Asaeli Lesu v The State [2003] FJCA 1; Criminal Appeal No. AAU0003.2002S. In that case the judge had also failed to direct the assessors that the onus was on the prosecution to prove beyond reasonable doubt that there was no provocation. It was held that, although the summing up was defective in this respect, the evidence was such that the omission had not caused any injustice to the appellant.

[29] We have reached the same conclusion in the present case. The assessors had been told very clearly by both the prosecutor and defence counsel that the onus of disproving provocation lay upon the State. The Judge had read to the assessors the entire unsworn statement the accused had made which set out the basis for his claim of provocation. There was overwhelming evidence that the nature of the alleged provocation was such that it would not have deprived an ordinary person of the power of self-control such as to induce him to commit the kind of violence which the appellant inflicted on the deceased. We are satisfied that, despite the defect in the judge's directions, there has been no miscarriage of justice.

Order

[30] The appeal against conviction is dismissed and in consequence, for the reasons earlier indicated, this Court is not called upon to consider any issue relating to the appeal against sentence.

Ward, President
Scott, JA
Ford, JA

Solicitors:

Appellant in Person
Officer of the Director of Public Prosecutions, Suva for the Respondent