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Naiker v State [2015] FJCA 90; AAU0045.2014 (18 June 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 0045 OF 2014
[High Court Criminal Case No. HAC 042 of 2012]

BETWEEN:

DEVENDRA NAIKER
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. A. Singh for the Appellant
Mr. V. Perera for the Respondent

Date of Hearing : 11 June 2015
Date of Ruling : 18 June 2015

RULING

[1] This is a timely application for leave to appeal against conviction and sentence. The appellant was tried and convicted of murder in the High Court at Suva. He was sentenced to life imprisonment with a non-parole period of 20 years.

[2] The alleged killing involved love triangle. According to the prosecution, the appellant and the deceased were having an affair with the same woman. This woman was married to another man. But the appellant saw the deceased as a rival. He took the deceased to an isolated location and stabbed him several times. After stabbing the deceased, the appellant fled the scene. By the time the police attended the scene, the deceased had died. Under caution, the appellant confessed to the killing. He also admitted killing the deceased in self defence to the doctor who medically examined him.

[3] The grounds of appeal are:-

Ground 1 – That the learned judge erred in law in disallowing the Appellant the opportunity to cross examine the Police witnesses at the trial proper in prior inconsistent statements which arose from their voir dire evidence.

Ground 2 – That the learned Trial Judge further erred in law in disallowing cross examination questions on prior inconsistent statement arising from Voir dire evidence which he uttered in Court that is why he had left the issue for the Assessors to decide when it should have been for him to decide whether or not the statements given to the Police were inadmissible or not.

Ground 3 – That the learned Judge erred in law in allowing the Caution Interview statement in evidence without any written ruling on the voir dire ruling until after the sentencing of the Appellant.

Ground 4 – That the learned Judge erred in law and in fact in ruling that the caution interview was admissible on evidence when not considering the evidence given by Doctor Upendra Singh after cross-examination, when he agreed that the rib cage tenderness may have been caused by a punch and that the Appellant who was not suffering from Arthritis.

Ground 5 – That the learned Judge erred in law and in fact in ruling that the caution interview was admissible in evidence when not considering the evidence given by Doctor Upendra Singh after the cross-examination, when he agreed that the rib cage tenderness may have been caused by a punch and that the Appellant was not suffering from Arthritis.

Ground 6 – That the learned Judge erred in law and in fact in admitting the caution interview statement into evidence when he did not give proper consideration to the evidence of Pastor Ronald Ram who stated in his evidence that he received a phone call from Ashok Naiker who was at the Nausori Police Station, confirming that the Appellant had been assaulted.

Ground 7 - That the learned Judge erred in law in refusing to note down the Appellant's record as requested by the Appellant.

Ground 8 – That the learned Judge erred in law in failing to give the assessors the proper warning in dock identification evidence.

Ground 9 – That the learned Judge erred in law in failing to direct the assessors in the absence of fingerprints and blood samples evidence, even though there was evidence led that the fingerprints and blood samples on the crime scene was taken.

Ground 10 – That the learned trial Judge erred in law when he disallowed Nilesh Kumar in giving evidence by ruling that he was an alibi witness when he was not an alibi witness but was to corroborate the evidence by Rakesh Chand.

Ground 11 – That the sentence was harsh and excessive in the circumstances.

[4] The grounds overlap to some extent. Both parties have filed detailed submissions. Counsel for the State concedes that ground 8 is arguable while the rest are devoid of merit. In my judgment, the appeal is arguable in general.

[5] Counsel for the appellant is urged to perfect his grounds of appeal upon receipt of the court record.

Result
Leave to appeal against conviction and non parole period granted.

......................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of Singh and Singh Lawyers for the Appellant
Office of the Director of Public Prosecutions for the Respondent