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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION
CRIMINAL APPEAL NO.AAU 0083 OF 2012
(High Court Criminal Case No. HAC 40 of 2011)
BETWEEN:
SURESH CHANDRA
Appellant
AND:
THE STATE
Respondent
Coram :Calanchini P
Basnayake JA
Lecamwasam JA
Counsel : Mr. I. Khan and Mr. H. K. Nagin for the Appellant
Ms. S. Puamau for the Respondent
Date of Hearing : 10 and 18 February 2015
Date of Judgment : 28 May 2015
JUDGMENT
Calanchini P
[1] I have read in draft the judgment of Basnayake JA and I agree that the appeal should be
dismissed.
Basnayake JA
[2] The appellant was convicted on 5 October 2012 of murder and sentenced to life
imprisonment with a minimum term of 18 years imprisonment. On 11 October 2012 the appellant appealed against the conviction and the
sentence. On 6 June 2014 the Court of Appeal by a single Judge granted leave against the conviction on grounds 4 and 5. However on
9 January 2015 the appellant filed a notice of additional grounds of appeal. This notice contained five grounds of appeal. Of the
five grounds, Nos. 3 and 4 are the same as grounds 4 and 5 of the original notice dated 6 June 2014. Leave to appeal against sentence
refused and the application was not renewed before this Court.
The Facts
[3] The prosecution case is that, the appellant having murdered the deceased by strangling,
made up evidence to show a case of suicide. However at the trial there was no ambiguity with regard to the cause of death.
The Pathologist's Report
[4] The pathologist gave the cause of death as asphyxia due to strangulation. In the report he
has observed a contusion under the skin on the scalp and a contusion and hemorrhage of the brain. This was attributed to some force
applied to the skull area causing a blunt injury. The cause of death was due to strangulation. There was nothing to indicate that
the death was due to hanging. The cause of death was never an issue at the trial.
Other key evidence
David
[5] The learned Judge summed-up the case as one based on circumstantial evidence. However, there is an eye witness by the name of David (pgs 367 to 370 under Tab 18). The flat in which this incident occurred belongs to David. David lived upstairs. The deceased lived downstairs. She was on rent. The adjoining flat was occupied by Kamlesh, another witness. The incident occurred at about 9.30 in the night on 15 January 2011. While David was in the house, the deceased had come to see David together with the appellant, her boy friend. They had started to drink beer while seated in the porch upstairs. While they were there, the appellant had had an argument with the deceased. It was about her infidelity. The appellant had punched her in the mouth. After being punched, the deceased had gone into her flat downstairs.
[6] The up-stair flat is separated from the down stairs with a wooden floor. In the flat that
David occupied there is a kitchen which has a sizable opening on the floor through which one could see what is happening in the flat
occupied by the deceased. This opening is shown in photographs Nos. 22 to 27 (pgs 136-139 of the record of the High Court: RHC).
After the deceased went downstairs into her flat, the appellant had told David to call her back. David had looked through this opening
and had called the deceased. The deceased had replied saying she does not want to talk. It may be because she was angry. David had
thereafter continued to drink with the appellant. While they were drinking David had had to go to the kitchen to make milk for his
daughter. The appellant who was with David too had gone back apparently to the deceased's flat downstairs.
[7] While in the kitchen, David had heard a thump coming from the down stair flat. He looked through the opening and saw the deceased lying on the floor. The appellant was on top of her holding on to her neck. David had then returned to attend to the milk as he had seen the deceased and the appellant always fighting. David said that he would have taken about 20 minutes in the kitchen. When he finished making the milk David said that he saw the appellant returning to the porch and continuing to drink beer. At that time Kamlesh had come back and was with the appellant. However when David returned to the porch the second time he saw only Kamlesh in the porch. He was told that the appellant had gone back to the flat where the deceased lived. Shortly the appellant had called for David from the flat to which David and Kamlesh had both rushed.
[8] When they went David said that he saw the appellant holding on to the deceased. The
appellant had told them that the deceased tried to jump and the appellant tried to save her. David said that he found one end of a
sulu (a woman's dress) tied round her neck and the other end to a rafter on the ceiling. David said that he removed the sulu from
her neck and the appellant had called for an ambulance. At that time the lights were off. However there was enough light coming from
his brother's kitchen and from the neighbour's. He also said that it was a full moon night.
[9] Under cross-examination David denied that he was suspected for the killing by strangling. He admitted giving two statements to the police on 18th (a caution interview and a statement) and statements on 19 and 22 January 2011. He also admitted that it was in the last statement that he mentioned for the first time that he saw the appellant holding on to the neck of the deceased. When he was questioned as to why he did not mention it in the statement made on 18th he said that he was scared. When he was asked as to why he did not mention it in the statement recorded on 19th he said that the appellant telephoned him at night on 18th and told him to stick to what he had said earlier. He admitted that he sold jewellery belonging to the deceased, after her death, to one Prakash in Nausori. It was suggested to him that he changed the story in the last statement made to the police on 22nd January as he was found lying about how he came by the jewellery, which he denied.
Kamlesh
[10] Kamlesh Sami occupied the flat adjoining deceased's flat. He was among the party that
drank beer that night. He corroborated David with regard to the arguments and the slapping. He was away for a while as he had had
to go out to get cigarettes for the appellant. When he left to get cigarettes David was with the appellant on the porch. As he was
returning he had seen both David and the appellant returning to the porch from two different directions. After Kamlesh returned the
appellant had gone back to the flat occupied by the deceased saying that he was going to sleep. Within 3 or 4 minutes the appellant
had called for David and both had gone to the flat occupied by the deceased. In the flat they had seen the deceased lying on the
floor with her clothes wet with urine and with no pulse.
[11] Under cross-examination he admitted that he saw the appellant giving her first aid. He
admitted that it was dark and they used mobile phones. He said that there was no light coming from outside and he had to fix a bulb
to get light.
P.C. 3660 Gasio (pgs. 371-2)
[12] P.C Gasio had arrived at the scene after receiving a call reporting of suicide. When he
arrived he said the deceased was found lying on the floor. The appellant had told him that
the appellant gave her CPR (cardiopulmonary resuscitation) and water. When he inquired
why the deceased was taken off from the rafter, the appellant had told him that he saw
that the deceased was alive and that's why he removed her and administered CPR.
The summing-up
[13] The learned Judge in his brief summing-up explained to the Assessors the law relating to
this case and the duties of a Judge and the Assessors. In paragraph 13 (pg. 17 of the RHC) the learned Judge has stated as follows,
"The thrust of the prosecution's case is based on 'what we call circumstantial evidence. They ask you to infer from the circumstances
that Suresh strangled Farzana. They say that the various circumstances relating to the case and the accused when taken together will
lead to the sure conclusion that it was the accused who committed the crime". In paragraph 14 the learned Judge states as follows, "Circumstantial evidence can be powerful evidence, but it is important that you examine it with care as with all evidence, and consider
whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt, or whether
on the other hand it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon
or destroy the prosecution case. Finally you should be able to distinguish between arriving at conclusions based on reliable circumstantial
evidence, and mere speculation......" (Paragraph 15).
[14] Thereafter the learned Judge summarised the evidence of the witnesses. The main witness to implicate the appellant was David Singh. While summarizing their evidence the learned Judge gave a brief analysis as well. With regard to the evidence of David Singh, the complaint of the appellant is that this evidence should not be believed, for two reasons. Firstly, David Singh gave four statements to the police and it is only in the fourth statement that David implicated the appellant. The reason for the implication was an accusation that David stole jewellery belonging to the deceased. Secondly David could not have seen what he alleged that he saw due to the poor lighting. Kamlesh states in evidence that when he went into the room where the deceased was found lying, it was dark and he had to light a mobile phone and also fix a bulb to have light.
[15] The learned Judge states in paragraphs 20 and 22 of his summing-up as follows; "In
cross-examination he admitted that he never told police when he was being interviewed or making a statement that he had seen Suresh
holding her neck – he says that was because he was frightened and in any event Suresh told him not to say anything. He also
admitted that he had sold some of Farzana's jewellery to a shop in Suva 2 days after she died. He said she had given it to him as
a deposit for rent. He gave rather unsatisfactory evidence about the jewellery but it is all a matter for you. If you don't believe
him about the jewellery, it does not mean necessarily that he is lying about the incident". The learned Judge mentioned in the summing-up the evidence of David, "That there was no light downstairs but he says he could see clearly because there was light from his kitchen, from his brother's
kitchen and from the neighbour's flat. Anyway it was a full moon, he says" (para. 19 at pg 119). Referring to the evidence of Kamlesh with regard to the light, the learned Judge states as follows; "In cross-examination, Kamlesh said that........it was dark downstairs but they lit the scene with their mobile phone lights". In paragraph 28 the learned Judge states that, "You are to apply the law as I have directed you to the facts as you find them and you will reach an opinion..."
The Judgment (5 October 2012) (Tab 10. Pg 113)
The judgment was pronounced on the same day of the summing-up. The learned Judge states in the judgment that, "In the majority opinion of three assessors you have been found guilty of the charge. The case prosecuted was a largely circumstantial case. And as such the circumstantial evidence against you was strong. I agree with the majority verdict of the assessors and find you guilty as charged. You are convicted accordingly. That is the judgment of the Court".
The sentence (8 October 2012) (Tab 9)
In the sentence the learned Judge gives a summary of facts and how the appellant had manipulated the events. The learned Judge stated, "that you by subterfuge arranged the scene to look like suicide and then calmly returned to drink with the landlord upstairs" and sentenced the appellant to life imprisonment with a minimum term of eighteen years imprisonment.
Five Grounds of Appeal
[16] The learned counsel in his submissions invited court to consider only the grounds that he
has filed in the additional list. They are as follows:-
Submissions of the learned counsel for the appellant
[17] Of the five grounds, the learned counsel wished to consider grounds 1 and 5 together.
However I consider it is convenient to consider grounds 1, 3, 4 & 5 together for the reason that the law and facts involved are
inextricably interwoven. Ground 2 is to be considered separately.
Grounds 1, 3, 4 & 5
[18] The learned counsel submitted that there were serious doubts in the prosecution case and
the learned Judge should have directed the Assessors with regard to such reasonable doubts, the benefit of which ought to have been
given to the appellant. The learned counsel submitted that the learned Judge has erred in law and in fact in not adequately directing/misdirecting
that the prosecution evidence has not proved beyond reasonable doubt. The learned counsel submitted that the evidence of David was
doubtful. David implicated the appellant in his fourth statement. David was questioned on 21 January 2011 by the police regarding
the jewellery of the deceased. David made his 4th statement to the police on 22 January 2011, implicating the appellant. The appellant
was implicated as David was suspected of stealing jewellery from the deceased. As such the learned Judge ought to have directed the
Assessors that the evidence given at the trial should be regarded as unreliable. The failure to do so has caused a substantial miscarriage
of justice.
[19] Learned counsel cited the case of Guan Singh v R [1963] 9 FLR 105 where the court held that, "It is the duty of the trial Judge to warn the Assessors, and to keep in mind himself, that it is dangerous to accept sworn evidence which is in conflict with statements previously made by the same witness; or, at least, that such evidence should be submitted to the closest scrutiny before acceptance. It is however, still the duty of the Assessors, and of the Judge himself, after full attention has been paid to this warning, to determine whether or not the evidence given before them in court at the trial is worthy of credence and, if so, what weight should be attached to it. The Assessors and the trial Judge, in determining the credibility of the evidence, must decide the preliminary question as to whether or not the explanation given by the witness as to the reason for such conflict is feasible and acceptable".
[20] It must be noted that the facts of the above case is different to the facts of the instant case. The instant case is not one wherein the witness made a different and/or conflicting statement to the police. What the witness (David) did was to omit an important fact in three previous statements. The witness gave a reason for the omission. He said that he was told by the appellant not to mention it to the police. He also said that he was scared. The learned Judge had drawn the attention of the Assessors to this important aspect. It may be that this witness made an attempt to protect the appellant who was acquainted with him. When he was implicated for the theft of jewelley he changed his mind and revealed the truth (Jagdishwar Singh and Another v R (1962) 8 FLR 159).
[21] Learned counsel also mentioned the case of Abdul Ahammed Ali And Roshni Devi v State (Criminal Appeal AAU 105 of 2008). This is a case involving an accomplice and as such is not relevant. Learned counsel submitted that the learned Judge has failed to direct adequately the Assessors regarding the evidence of David Sunil Singh (PW 4), Kamlesh Sami (PW 5), PC 3660 (PW 7), Rakesh Mani (PW 3 (pg 367 of the RHC) and PC Satish Lal (pgs 370-372). Learned counsel cited the case of Murray v The Queen [2002] HCA 26; [211 CLR 193] where Kirby J said that, "It is important, sometimes essential, that judges should relate their instructions on the law to the evidence and issues at the trial" (pg. 216). "It must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments of both sides and a correct statement of inferences which the jury are entitled to draw from their particular conclusions about the primary facts"(Lord Hailsham L.C. in R v Lawrence (1981) 73 Cr AR 1 at 5, (1981) 1 All ER 974 (emphasis added).
Ground 2
[22] Learned counsel submitted that the learned Judge has erred in law in not analyzing all the
facts before him before he made a decision that the appellant is guilty on the charge of murder. It was submitted that the learned
Judge after accepting the majority verdict of the Assessors pronounced a judgment without analyzing the evidence independently and
as such has caused a substantial miscarriage of justice. Learned counsel relied on Praveen Ram v The State (CAV No. 0001 of 2011 (9 May 2012) where the Supreme Court held that, "A trial Judge's decision to differ from, or affirm, the opinion of the assessors necessarily involves an evaluation of the entirety
of the evidence led at the trial including the agreed facts, and so does the decision of the Court of Appeal where the soundness
of the trial Judge's decision is challenged by way of appeal as in the instant case. In independently assessing the evidence in the
case, it is necessary for a trial judge or appellate court to be satisfied that the ultimate verdict is supported by the evidence
and is not perverse. The function of the Court of Appeal or even this Court in evaluating the evidence and making an independent
assessment thereof, is essentially of a supervisory nature, and an appellate court will not set aside a verdict of a lower court
unless the verdict is unsafe and dangerous having regard to the totality of evidence in the case".
Submission of the learned counsel for the respondent
[23] Learned counsel for the respondent submitted that the principles established by Praveen Ram (supra) apply to the duty of an appellate court dealing with appeals and the decision of the Supreme Court regarding the necessity of an independent analysis of evidence by the trial judge is an obiter dicta. It was so held by the Court of Appeal in Kaiyum v State [2014] FJCA 35; AAU 0071.2012 (14 March 2014) where the Court held that, "The remark was made in the course of formulating the test when a guilty verdict is challenged on the basis that it is unreasonable or cannot be supported having regard to the evidence (see Section 23 (1) of the Court of Appeal Act). In subsequent cases, the Supreme Court has clarified that where the trial judge agrees with the opinions rendered by the Assessors, section 237 of the Criminal Procedure Decree does not require the trial judge to carry out an independent analysis of evidence before pronouncing judgment. But the Supreme Court has endorsed that "a short written judgment, even when conforming with the Assessors' opinions is a sound practice" (State v Miller unreported CAV 8 of 2009; 15 April 2011, Mohammed v State unreported CAV 2 of 2013; 27 February 2014, Edward Sheikh Faruk Ali v Reginam [1974] 20 Fiji LR 35 at 38 Per Haslam JA).
[24] In Edward Sheikh Faruk Ali v Reginam (supra) the Court of Appeal observed that, "If the trial Judge agrees with the majority of the assessors he need now give no judgment but must write down the decision of the Court. The Supreme Court in Shiek Mohammed (supra) endorsed the above statement as having stated the correct position under section 299 of the Criminal Procedure Code (The State v Simione Kaitani and 3 others (unreported HAC 44 of 2004; 15 August 2005), Devi v State (unreported AAU 8 of 2009; 30 January 2012). The proviso to section 299 is as follows:-
Provided that, notwithstanding the provisions of (section 155 (1)) where the judge's summing up of the evidence under the provisions of sub section (1) is on record it shall not be necessary for any judgment, other than decision of the court which shall be written down or to follow any of the procedure laid down in section 154 or to contain or to include any of the matters prescribed by section 155, except that where the judge does not agree with the majority of the assessors .....(emphasis added).
[25] The learned counsel for the respondent submitted that the evidence was sufficient to
sustain a charge of murder and it would have been grossly unfair to have directed for an acquittal without due and proper consideration
of the available evidence. Learned counsel submitted that the learned Judge in paragraphs 13, 14, 16, 20, 22 and 28 while referring
to the evidence directed the Assessors to apply the law to the facts. The learned Judge made reference to several statements given
by witness No. 4 David Singh to the police and the reason for not mentioning about the appellant holding on to the neck of the deceased.
The learned Judge also referred to unsatisfactory evidence given with regard to finding jewellery and left it to the Assessors to
decide. The learned Judge also referred to the evidence of Kamlesh Sami and the evidence relating to the light.
[26] The learned counsel for the respondent cited the case of Fingleton v R [2005] HCA 34;
(2005) 216 ALR 474 at 479 where McHugh J cited Diplock LJ in R v Mowatt [1967] EWCA Crim 1; [1968] 1 QB 421 at 426 while explaining the duty of a trial Judge in a summing up as follows; "A trial Judge must be astute to secure for the accused a fair trial according to law. This involves...an adequate direction both as
to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case
upon the material before them find or base a verdict in whole or in part". The learned counsel for the respondent also cited the case of Singh v State [2008] FJSC 52; SC CAV 0005.2008S (18 December 2008) where the Supreme Court held that "the interests of justice are not confined to the interests
of the accused person".
[27] I am in agreement with the learned counsel for the respondent that this is not a case
where the learned Judge could have directed the Assessors and/or himself for an acquittal. The medical evidence is unequivocal with
regard to death due to strangulation. It excludes the possibility of a suicide. A suicide was never an issue in this case. Then why
did the appellant attempt to make out a case of suicide? The appellant had told David that the deceased tried to jump and the appellant
tried to save her. Throughout the night it was the appellant who was with the deceased. Other than the appellant, there is no evidence
of anyone else being with the deceased. David and Kamlesh were the first to see the dead body of the deceased. At that time the appellant
was with the deceased. It was the appellant who called David into the flat allegedly soon after the death. At that time the deceased
was lying on the floor. PC 3660 Gasio (pg 371) arrived at the scene on information of suicide. It was the appellant who had briefed
him on how she came by her death. When inquired as to why the deceased was brought down, the appellant had told PC Gasio that he
(appellant) saw the deceased still alive and removed her to administer CPR.
[28] There is evidence of injury to the scalp which would have been caused with a blunt instrument. This had caused a contusion of the brain and hemorrhage. David had heard a thump coming from the flat downstairs. It was this sound that made David peep into the flat. Other than the thump, David did not speak about any other noise that was heard. After these events the appellant had walked up to the porch and again returned to where the deceased was. Within minutes the appellant had called for David to which both David and Kamlesh responded and found the body of the deceased. They were told by the appellant that it was a suicide. This evidence has not been controverted.
[29] David in his 4th statement to the police said that he saw the appellant strangling the deceased. David was found with jewellery owned by the deceased. Learned counsel for the appellant submitted that it was the accusation with regard to the jewellery that prompted David to implicate the appellant. That may be so. Till then David would have been lethargic in implicating the appellant. The learned Judge too was not happy with the explanation David gave relating to the jewellery and he invited the attention of the Assessors to that fact. David knew the deceased as his tenant and he knew the appellant as well. Now that the deceased is gone, selfishly David would have thought of his own safety. However the accusation of stealing jewellery would have given strength for David to go against the appellant, who was his drinking partner. There is no dispute about David and Kamlesh's presence in the vicinity. The dispute is with regard to David witnessing the act of strangling. This is the only piece of direct evidence in this case. The rest of the evidence is circumstantial. The learned Judge harped on the circumstantial evidence. Even the defence did not attack the circumstantial evidence.
[30] The other matter relates to the lighting. David said that there was sufficient light for him to identify the acts of the appellant. A Few minutes before these events transpired, David had spoken to the deceased and the deceased had responded. At the time of the aggression David said that the house lights were off. If the intention of the aggressor was to cause the death of the deceased by strangling her, he must first silence her. Otherwise she would have screamed and caused alarm. If the lights were on, the deceased would have seen what the appellant was up to. However there would have been enough light for the appellant to get about so that he will not miss the target. David said that there was enough light for him to identify what the appellant did. There was light coming from his kitchen, his brother's kitchen and the neighbours. He also said that it was a full moon night.
[31] Kamlesh said that it was dark and they had to use their mobile phones and fix a bulb to get light. That would have probably made the place brighter. Prior to these events the appellant was moving in and out of these premises. If the premises was so dark, how did the appellant move about in the premises? When David and Kamlesh went into the premises David said that he saw one end of a sulu tied to the rafter and the other end tied to the neck of the deceased and that David removed the sulu from the neck. Was there enough light to tie one end of the sulu to the rafter? The appellant told PC Gasio that it was he who brought the deceased down. Was there enough light for the appellant to do all that? The learned Judge left the question of light to the Assessors.
[32] I am of the view that the evidence produced was very strong to make out a case against the appellant. I agree that the learned Judge had not assisted the Assessors by way of analyzing and drawing inferences to assist them in coming to a correct conclusion without merely leaving the facts and allowing them to arrive at a decision. The judge cannot content himself by simply reiterating the incantation that it is for the jury to decide the facts (Cross on Evidence 9th Edition at pg 199 citing R v Gilbey (1990) (26 January 1990) unreported (cited in Mears v R) (1993) 97 Cr App Rep 239).
[33] With all these infirmities I am of the view that no prejudice was caused to the appellant. The learned Judge in both his judgment and sentencing decision has given a short analysis as to why he agreed with the Assessors in convicting the appellant. While considering all the evidence that was led in this case I am of the view that the judgment is correct and fair and thus has caused no miscarriage of justice. Hence I am of the view that the appeal is without merit and should be dismissed.
Lecamwasam JA
[34] I agree with the findings and the conclusions of Basnayake JA.
The Order of the Court is:
Appeal is dismissed.
...................................
Hon. Justice W. Calanchini
President, Court of Appeal
.......................................
Hon. Justice E. Basnayake
Justice of Appeal
........................................
Hon. Justice S. Lecamwasam
Justice of Appeal
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