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Sharma v State [2015] FJCA 18; AAU0048.2011 (27 February 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

Criminal Appeal No: AAU 0048 of 2011
(High Court Case No: HAC 045 of 2008)

BETWEEN:

SACHINDRA NAND SHARMA
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Basnayake JA
De Silva JA

Counsel : Appellant in Person
Mr. L. J. Burney for the Respondent

Date of Hearing: 6 February 2015
Date of Judgment: 27 February 2015

JUDGMENT

Calanchini P
[1] I have read in draft the judgment of Basnayake JA and agree with the judgment and his proposed orders.

Basnayake JA

[2] This judgment is with regard to an application to lead fresh evidence prior to the hearing of the appeal. The appellant was convicted under sections 214 (a), 224 (a) and 317 (a) of the Penal Code Cap 17 for committing the offences of attempted murder, causing grievous harm and arson. He was sentenced to 16 years on count one and 6 years each on the other counts. The sentences were to run concurrently. The appellant appealed against the conviction and the sentence. On 2 July 2013 the Court of Appeal by a single Judge granted leave to appeal against the conviction and the sentence.

[3] On 21 June 2013 the appellant filed a motion together with an affidavit seeking leave of the Court of Appeal to adduce fresh evidence. Again on 8 December 2014 the appellant filed another motion together with an affidavit seeking leave to adduce fresh evidence. The appellant had filed written submissions in support of his application. The respondent too had filed written submissions in reply. When this case was taken up for argument on 6 February 2015 the appellant moved that he be heard on the application to lead fresh evidence. As the appellant had appeared in person and for the reason that the appellant was made to understand by the Registry that the case would be called to hear the application to receive fresh evidence only, the court heard the appellant and the counsel for the respondent in respect of the application to receive fresh evidence.

[4] Briefly, the facts are as follows. The main prosecution witness is one Poonam. The appellant was her de-facto partner. They were separated at the time of the incident. The appellant wanted to renew the relationship. Poonam was not agreeable. The incident took place at about 3 a.m. at Poonam's house. The evidence revealed that the appellant first set fire to Poonam's house. Thereafter he had stabbed her several times and attempted to throw her in to the fire. Poonam's mother and father, who lived in the vicinity, had come to Poonam's rescue. The fire had spread to several other houses as well, including that of Poonam's parents. While the appellant attempted to throw Poonam in to the fire, Poonam's parents had prevented the appellant from doing so. Having failed in his attempt, the appellant had slipped off. He was arrested about three months later as he was in hiding.

[5] The appellant's application is to lead evidence of one Mr. Joji Veiquwa. The appellant claimed that Mr. Joji's name transpired in the evidence of several witnesses. According to evidence of the prosecution witnesses Mr. Joji is a close neighbour of Poonam. The appellant claimed that Mr. Joji had knowledge of the incidents. However Mr. Joji's statement was not recorded by the police. The appellant claimed that Mr. Joji was present at the relevant time. However there is no material to support this proposition.

[6] Mr. Joji was not listed as a prosecution witness and was not called by either party to give evidence. Although there was evidence of Mr. Joji's presence in connection with incidents that occurred immediately prior to the time of the commission of the offences, there is no evidence of his presence at the scene of the crime or in the vicinity around the time of the occurrence of this crime.

[7] The appellant denied the commission of this crime. At the trial he pleaded an alibi. The appellant does not claim Mr. Joji as a witness to his plea of alibi. The appellant does not indicate what Mr. Joji would speak of if called to give evidence. In the written submissions filed the appellant states that he believed Mr. Joji had some knowledge of the events relating to the incident. He further submitted that Mr. Joji's evidence would either support the prosecution or the defence. The appellant states that Mr. Joji is an independent witness and his evidence is important either to support or discredit the prosecution witnesses or support the alibi. Thus the appellant was not certain as to what Mr. Joji would speak of.

[8] Section 28 of the Court of Appeal Act empowers the Court of Appeal to receive evidence of any witness who is a competent but not a compellable witness. Rule 22 of the Court of Appeal Rules makes provision to receive fresh evidence on questions of fact either by oral examination, by affidavit or by a deposition. The Rule is as follows:-

22 (2): The Court of Appeal shall have full discretionary power to receive further evidence upon questions of fact, either by oral examination in court by affidavit, or by deposition taken before an examiner or Commissioner:

Provided that in the case of an appeal from a judgment after trial or hearing of any cause or matter upon the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds (emphasis added) (Paragraphs 1,3,4 &5 not reproduced).

[9] The prosecution called the following witnesses at the trial:

1. Poonam (received stab injuries)
2. Ashi Kala (Poonam's mother)
3. Devendra Prasad (Poonam's father)
4. Krishneel Prasad (Poonam's brother who suffered burn injuries)
5. Inspector Ram
   

The defence called the appellant, Shalendra Singh, Shirresh and Mukesh. The witnesses for the defence gave evidence in support of the alibi.

[10] The application to call fresh evidence relates to one Mr. Joji. His statement was never recorded by the police. His name never transpired as a person who was present at the scene. Two persons who received injuries as a result of the crime had given evidence. In addition to that two others who were present and intervened to prevent further harm had given evidence.

[11] It is settled law that "in order to justify the reception of fresh evidence...three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible" (emphasis added) (Denning LJ in Ladd v Marshall [1954] EWCA Civ 1; [1954] 3 All ER 745 at 78, Coir Industries Ltd v Louvre Industries Limited (1984) 30 FLR 45, Skone v Skone [1971] 2 All ER 582 HL, Roer Robert McGregor & Sons Ltd [1968] 1 All ER 636 CA).

[12] Considering the above principles, we cannot fathom as to how the evidence of the proposed witness would upset the judgment, as the appellant does not indicate as to what the witness would speak of in the event his application is allowed. Although the Court of Appeal has discretion to receive further evidence, such could be admitted only on special grounds. In view of the fact that the appellant himself is not certain as to what the witness would say in court, the appellant has failed to satisfy this court on any of the three conditions referred to above. Hence this application is without merit and is refused.

De Silva JA

[13] I agree with the reasons and the conclusion of Basnayake JA.

The Orders of the Court are:

1. Application to lead fresh evidence is refused.
2. Case to be listed for argument.
   

Hon. Justice W. Calanchini
PRESIDENT, COURT OF APPEAL

Hon. Justice E. Basnayake
JUSTICE OF APPEAL

Hon. Justice S. De Silva
JUSTICE OF APPEAL