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Supreme Court of Fiji |
IN THE SUPREME COURT OF FIJI
[APPELLATE JURISDICTION]
Criminal Petition No. CAV 0027 of 2018
[On Appeal from the Fiji Court of Appeal No. AAU 134 of 2014]
BETWEEN:
AVNIT SINGH
Petitioner
AND:
THE STATE
Respondent
Coram: Hon. Mr. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Madam Justice Chandra Ekanayake, Judge of the Supreme Court
Hon. Mr. Justice Frank Stock, Judge of the Supreme Court
Counsel: Ms. S. Nasedra for the Petitioner
Mr. Y. Prasad for the Respondent
Date of Hearing: 17th October 2019
Date of judgment: 27th February 2020
JUDGMENT
Marsoof, J
[1] I have had the advantage of reading in draft, the judgments of Madam Justice Ekanayake and Justice Stock.
[2] Apart from the preliminary issue involving the delay in lodging this application for leave to appeal, there are four principal matters in regard to which Stock J. disagrees with the reasoning adopted by Ekanayake, J in her draft judgment. Those matters involve (1) the voluntariness of the confession; (2) hearsay and recent complaint; (3) the intent (to commit murder) and (4) the question of care warning (cautioning of assessors).
[3] To put these matters in context, it would suffice to state that the petitioner, Avnit Singh, was convicted after trial by the High Court of Fiji at Lautoka of the murder of one Bal Krishna, after the learned High Court Judge by his judgment dated 16th September 2014, overturned the unanimous opinion of the assessors that the petitioner was not guilty of the crime. Upon conviction, the petitioner was sentenced to life imprisonment with a non-parole period of 20 years.
[4] Having said that by way of introduction, I shall proceed to examine, albeit briefly, the matters with respect to which my judicial colleagues are at variance.
The Time Factor
[5] Enlargement of time is an essential pre-requisite for this Court to consider any application for leave to appeal against a final decision of the Court of Appeal filed outside the time period prescribed for the filing of such applications. If the Court grants enlargement of time, the application for leave to appeal will be considered as if the application has been timely. If enlargement of time is refused, the application for leave to appeal must necessarily be refused for being out of time.
[6] It would appear that while being detained at the Suva Correction Center, the petitioner had sought to appeal against the judgment of the Court of Appeal dated 4th October, 2018, through an informal document which had been lodged in the Registry of this Court on 22nd November 2018 after the forty-two day period for the filing of applications for leave to appeal had lapsed.
[7] Madam Justice Ekanayake, having considered the above facts in the light of the relevant authorities, has come to the conclusion that enlargement of time should be refused as the petitioner’s application has been filed out of time, nevertheless proceeded to consider the application of the petitioner for leave to appeal, and decided to refuse his application for leave to appeal on the basis that the threshold criteria for the grant of leave enumerated in section 7(2) of the Supreme Court Act, 1998, have not been met.
[8] Justice Stock, on the other hand, has taken the view that since the petitioner’s application was delayed by only 7 days, there was no substantial delay and that for the reasons outlined in his judgment, the petitioner’s application for leave to appeal must be considered. He has also pointed out that there was a Suva Corrections Centre date stamp bearing the date of 23rd October 2018 on the typewritten application submitted by the petitioner, which would confirm the position that the delay in sending the petition to the Registry of the Court for filing, was occasioned by an administrative lapse for which the Petitioner cannot be blamed. In these circumstances, I hold that the period of delay is not too long, and the usual leniency that is shown by this Court to incarcerated prisoners[1] may be extended to the petitioner as well. I have therefore no hesitation in agreeing with Stock, J. that enlargement of time must be granted.
Grant of Leave to Appeal
[9] It is incumbent therefore for me to consider whether leave to appeal from the impugned judgment of the Court of Appeal should be allowed in all the circumstances of this case. In my opinion, grounds (1), (2) and (4) urged on behalf of the petitioner for the grant of leave to appeal involve substantial questions of principle affecting the administration of criminal justice, and the failure to consider them on appeal would give rise to substantial and grave injustice. I would therefore respectfully agree with his Lordship Justice Stock that this is an appropriate case for allowing the application for leave to appeal. As regards ground (3) advanced by the petitioner for seeking leave to appeal, I am of the opinion that this ground is not worthy of further consideration by this Court since the evidence of Sergeant Anoop and the alleged laxity of the investigations do not raise any substantial questions which meet the threshold criteria for the grant of leave to appeal.
Voluntariness of the Confession
[10] By ground (1), the petitioner seeks to raise the issue as to whether the Court of Appeal erred in holding that the learned trial judge had not misdirected himself in respect of the admissibility, truthfulness and voluntariness of the petitioner’s confession when in fact the trial judge had misdirected himself by failing to consider the evidence of Sunita Devi elicited at the trial in cross-examination. It is indeed noteworthy that the twin basis on which the conviction was sought to be supported by leaned Counsel for the Respondent at the hearing before this Court were the testimony of the petitioner’s de facto wife Sunita Devi, who had impressed the trial judge as a truthful witness as observed by him in paragraph 12 of his judgment, and the confession alleged to have been made by the petitioner in the course of his caution interview, on which the learned trial judge had greatly relied in finding the petitioner guilty despite certain admissions made by Sunita Devi in the course of her cross-examination which raise doubts about the voluntariness of the petitioner's confession.
[11] In this context, it is most material to note that Sunita Devi did not testify at the voir dire hearing relating to the petitioner’s confession, but did so at the murder trial as a prosecution witness. When she was cross-examined by the learned Counsel for the petitioner, she admitted that she saw the petitioner being assaulted by police officers in the Crime Room of Namaka police station for about 2 to 3 minutes, and that she asked the police officers not to do it. She also stated that when they were at Lautoka police station she requested the petitioner to “admit to Police so that they will stop beating him” and further she instructed him to say that he got angry when he got to know that the deceased was touching her. Sunita Devi also admitted in cross-examination that she asked the petitioner to disclose these things to the police on the instructions of the police. It is significant that when eventually the petitioner was taken to the Rakiraki police station, he admitted in the course of his caution interview that he had struck the deceased on the head with an axe.
[12] As Stock, J. points out, it is trite law that the mere fact that the confession of the petitioner was ruled admissible by the trial judge on the evidence presented at the voir dire (at which Sunita Devi did not testify) does not relieve the trial judge from the duty of revisiting the question of the voluntariness of the confession when fresh testimony surfaces later on at the trial which cast doubts regarding the voluntariness of the confession. As was observed by the Privy Council in Wong Kam-Ming v The Queen,[2] -
“The basic control over admissibility of statement are found in the evidential rule that an admission must be voluntary i.e. not obtained through violence, fear or prejudice, oppression, threats and promises or other improper inducements. See decision of Lord Sumner in Ibrahim v. R[3]. It is to the evidence that the court must turn for an answer to the voluntariness of the confessions.”(emphasis added)
[13] In Tuilagi v State,[4] Aluwihare, J. outlined the law applicable in Fiji in the following words:[5]
“The fundamental condition in deciding the admissibility of a confession is that the statement made by the accused shall have been made voluntarily and in the sense that it has not been obtained from him by fear of prejudice or hope of advantage exercised or held out by a person in authority or by oppression. As held in the case of State v Mool Chand Lal,[6] oppression is anything that tends to sap and has sapped that free will that must exist before a confession is recorded.
As regards the standard of proof, the prosecution must prove the voluntariness beyond reasonable doubt. As held in the case of R v Sartiori,[7] if the judge is in doubt as to whether the confession was made under the influence of any improper inducement he will reject the confession. This position has been reiterated in the case of Ganga Ram and Shiv Charan v Regina.[8]”(emphasis added)
[14] In these circumstances, I regret that I am unable to agree with the views expressed by Ekanayake J regarding the admissibility of the confession. I am inclined to agree with the opinion expressed by Stock, J. that the learned trial judge had a duty to review the question of voluntariness of the confession even though he was not invited to do so by counsel.[9] I am of the opinion that the Court of Appeal, as much as the trial judge, has erred in its impugned judgment in holding that the learned trial judge had not misdirected himself in respect of the admissibility of the petitioner’s confession.
Reliability of the Testimony of Sunita Devi
[15] Ground (2) relied upon by the petitioner is that the Court of Appeal erred in holding that the learned trial judge was correct in stating in his summing up and his judgment that Sunita Devi was not an accomplice and further stating that there was no need to look for independent corroboration, when her evidence also required a warning as to the danger of convicting upon it unless confirmed by evidence from some other source, and the trial judge’s failure to properly warn himself and the assessors of the said danger resulted in a substantial and grave miscarriage of justice.
[16] The material evidence has been exhaustively dealt with by Ekanayake, J. and Stock, J. in their judgments, and it is unnecessary for me to refer to them in detail. In my opinion, the conspectus that raise questions regarding the reliability of the evidence of Sunita Devi consist of her arrest and prosecution with the petitioner and the subsequent grant of immunity, and her testimony at the trial as witness for the prosecution. Although the Court of Appeal took the view, very properly, that Sunita Devi was not an accomplice in a technical sense, it is noteworthy that the circumstances of the immunity granted to Sunita Devi and the possibility that she might have had an interest of her own to protect, did require some amount of caution to be exercised. As this Court was constrained to observe in Mudaliar v State[10], which was a case of abortion related death-
“The trial judge did remind the assessors that Abhikesh had been granted immunity from prosecution. He told them that this related to his possibly having been implicated in the abortion itself. What he failed to do was to explain to the assessors precisely why Abhikesh’s evidence may have been tainted by an improper motive. That is a fundamental aspect of any accomplice warning, but it applies with equal force to those cases in which, though technically an accomplice warning is not required, a warning closely analogous thereto should be given.” (emphasis added)
[17] The same observation applies in the circumstances of this case. In the context of the special features of this case, particularly the immunity given to Sunita Devi and her possible motivations, it was in my opinion, incumbent upon the learned trial judge to direct the assessors and himself about the need to treat her testimony under immunity with caution. It is remarkable that even in the absence of such a care warning, the assessors were unanimously of the opinion that the petitioner was not guilty of murder, which opinion the trial judge overturned by his judgment.
[18] I am of the opinion that the trial judge misdirected himself in relying in his judgment entirely on the testimony of Sunita Devi despite the existence of circumstances that might have made her evidence unreliable including the matters highlighted in paragraph 11 of this judgment which also raise doubts about the voluntariness of the petitioner’s confession. I agree with Stock, J. that that the Court of Appeal erred in overlooking the need for a care warning.[11]
The Duty to Give Cogent Reasons
[19] Ground (4) urged by the petitioner is that the Court of Appeal erred in fact and in law in disregarding the trial judge’s failure to give cogent reasons in his judgment as required by section 237(4) of the Criminal Procedure Decree of 2009 for overturning the unanimous opinion of the assessors that the petitioner was not guilty of the charge laid against him.
[20] It is significant to note that the Criminal Procedure Decree of 2009 provides that the trial judge “shall not be bound to conform to the opinions of the assessors”[12] and further provides that when the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be in writing and pronounced in open court.[13] Sub-section (5) of section 237 specifically provides that-
“(5) In every such case the judge’s summing up and the decision of the court together with (where appropriate) the judge’s reasons for differing with the majority opinion of the assessors, shall collectively be deemed to be the judgment of the court for the all purposes.” (emphasis added)
[21] These provisions and similar provisions in prior enactments[14] have been examined by our courts in several important judgments, and it has been observed that the trial judge must have “very good reasons”[15] for differing from the assessors. In Ram Bali v Regina[16] it was emphasised that the trial judge should proceed on “cogent and carefully reasoned grounds based on the evidence before him and his views as to credibility of witnesses and other relevant considerations”. This latter case went up on appeal to the Privy Council, which observed that the trial judge was taking “a strong course” by differing from the unanimous opinion of the assessors, but concluded that his decision was justifiable because it was based upon his own “emphatic conclusions in regard to the evidence”. In Shiu Prasad v Regina,[17] Rokopeta v State[18] and Likunitoga v State[19] it was reiterated that the judge must have “cogent reasons” for differing from the assessors.
[22] The requirement that a trial judge who has reasons not to agree with the majority opinion of the assessors should pronounce his reasons for differing with such opinion[20] is a fundamental safeguard that ensures that justice is done in every case according to law. The objective of such a requirement is to explain to the assessors, the prosecution and the accused as well as to the society at large, the reasons for the decision, so that the social conscience can rest in the knowledge that justice was done. Candid reasons set out in the judgment of the trial judge, can be of great assistance when an appellate court is called upon to review the decision on appeal.
[23] In the course of its judgment in Ram v The State[21] this Court succinctly described the role of the trial judge as well as the supervisory function of the appellate court in the following words-
“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.”(emphasis added)
[24] It is always necessary to bear in mind that the function of this Court, as well as the Court of Appeal, in evaluating the entirety of the evidence led at the trial and making an independent assessment thereof, is of a supervisory nature. Unlike in Ram v State,[22] where this Court quashed the conviction and acquitted the accused on the basis that on the whole of the evidence led in that case, “it was not open for a judge sitting with assessors to be satisfied beyond reasonable doubt that the accused was guilty of murder”,[23] in the instant case, this Court is confronted with the difficulty that the learned trial judge has not dealt with some material questions that arise in the case with sufficient cogency, particularly in regard to the matters already discussed in this judgment pertaining to (1) the voluntariness of the petitioner’s confession and (2) the reliability of the testimony of Sunita Devi, and a few other matters highlighted by Stock, J. under the headings “hearsay and recent complaint”[24] and “Intent.”[25] In other words, apart from the non-directions and mis-directions adverted to already, the learned trial judge has also fallen into error in the effective discharge of his duty of independently evaluating and assessing the evidence led in the High Court in the course of his judgment.
[25] I am therefore of the opinion that the Court of Appeal has in all the circumstances of this case, failed to discharge its supervisory function of considering carefully whether the trial judge had adequately complied with his statutory duty imposed by section 237(4) of the Criminal Procedure Decree. Though an appellate court such as the Court of Appeal and this Court does not have the advantage of seeing the witnesses testify so as to appreciate their demeanour, it is evident on the available evidence that the trial judge had failed to effective discharge his statutory duty of evaluation and independent assessment of the evidence when differing with the unanimous opinion of the assessors that the petitioner is not guilty of murder, and the Court of Appeal erred in affirming the said decision.
Should the conviction be set aside?
[26] In these circumstances, it is necessary to consider whether the decision of the trial judge to convict the petitioner should be affirmed for the reasons provided by Madam Justice Ekanayake, or in the alternative, the conviction should be set-aside as opined by his Justice Stock and remitted to the High Court for re-trial. In this connection, it is pertinent to note that while the Court of Appeal did not have occasion to consider the proviso to section 23(1) of the Court of Appeal Act,[26] and Madam Justice Ekanayake did not therefore have to consider the proviso in her judgement, his Lordship Justice Stock has expressed the view that this is not an appropriate case to apply the proviso.
[27] Section 23(1) of the Court of Appeal Act which provides that the Court of Appeal “shall allow the appeal” if it finds that “the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:” goes on to enact an exception in the form of the following proviso:
“Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has occurred.”(emphasis added)
The proviso to section 23(1) enables an appellate court such as the Court of Appeal and this Court when it sits in appeal, to dismiss the appeal notwithstanding that a point raised in the appeal might be decided in favour of the appellant if the Court considers that no substantial miscarriage of justice has occurred.
[28] I have given this matter careful consideration, in the backdrop that the Court of Appeal erred in fact and in law in not taking into consideration the trial judge’s failure to properly evaluate the evidence of Sunita Devi regarding the voluntariness of the petitioner’s confession, his failure to caution the assessors and himself regarding possibility that she might have had some interest of her own to protect when testifying at the trial upon immunity from prosecution, and his failure to give cogent reasons in his judgment for overturning the unanimous opinion of the assessors on the charge laid against the petitioner, every one of which circumstance, in turn caused a substantial and grave miscarriage of justice against the petitioner. I have no hesitation in agreeing with Stock, J. that this is not a proper case to apply the proviso to section 23(1) of the Court of Appeal Act.
[29] For all these reasons, I agree with Stock, J. that the impugned judgment of the Court of Appeal should be set aside and the conviction of the petitioner be quashed.
Conclusions
[30] In the result, I would grant enlargement of time, allow the appeal, set aside the judgment of the Court of Appeal, quash the petitioner’s conviction for murder rendered by the judgment dated 26th September 2014 and set aside the sentence imposed by the High Court. In all the circumstances of this case, I would order retrial, at the discretion of Director of Public Prosecutions, with any amendment to the charge as may be considered appropriate by the Director of Public Prosecutions.
Ekanayake, J
Introduction
[31] Being aggrieved by the decision of the Court of Appeal dated 4/10/2018 the Petitioner by his document dated 23rd October, 2018 addressed to the Registrar of Supreme Court of Fiji (which appears to have been received by the Registry on 22nd November 2018), has sought leave from this Court, against conviction and sentence, and to set aside the order of dismissal of the appeals against conviction and sentence. He had been convicted for the offence of murder and sentenced to life imprisonment by the learned High Court Judge.
[32] By an amended petition of the petitioner dated 12/8/2019 together with a supporting affidavit of 13/08/2019 (received by the Registry on 13/8/2019), the petitioner has sought special leave to appeal against conviction and sentence.
[33] By the above amended petition four grounds of appeal had been submitted to this Court. Those grounds are reproduced below:-
“Ground 1
That the Learned Judges of the Court of Appeal erred in law and in fact in finding that the learned Trial Judge had not misdirected
himself in respect of the admissibility, voluntariness and truthfulness of the confessions in the caution interview when in fact
the learned Trial Judge had misdirected himself by failing to consider the evidence of Sunita Devi that arose during trial proper
stating that the Appellant had been assaulted by police and such circumstance in the trial proper necessitated the need and ought
to have cause the learned Trial Judge to direct himself on the context of voluntariness in the context of the case in its entirety
particularly when the learned Trial Judge in his judgment stated that he believed the entirety of Sunita Devi’s evidence, that
this in turn cause a substantial and grave miscarriage of justice against the Petitioner.
Ground 2
That the Learned Judges of the Court of Appeal erred in law and in fact in finding that the learned Trial Judge was correct in stating
in his Summing Up and his judgment that Sunita Devi was not an accomplice and further stating that there was no need to look for
independent corroboration when her evidence also required a warning as to the danger of convicting upon it unless confirmed by evidence
from some other source and his Lordships failure to properly warn himself of the said danger in convicting without independent corroborated
evidence resulted in a question of general legal importance and cause a substantial and grave miscarriage of justice against the
Petitioner.
Ground 3
That the Learned Judges of the Court of Appeal erred in law and in fact in failing to properly consider the evidence of Sergeant Anoop
and laxity of the investigation that was carried out in the Petitioner’s matter which in turn raised doubts in the States case
and in turn caused a substantial and grave miscarriage of justice to the Petitioner.
Ground 4
That the Learned Judges of the Court of Appeal erred in fact and in law in failing to consider the Trial Judge’s failure to
give cogent reasons in his judgment whilst overturning the unanimous opinion of the assessors on the charge laid against the Petitioner
which in turn caused a substantial and grave miscarriage of justice against the Petitioner.
Background History
[34] The petitioner and one Sunita Devi (who had a de facto relationship with the petitioner), were charged in the Magistrates Court at Rakiraki under case number 89/11 on 10/5/2011 for murder – Contrary to Section 237 (a) of the Crimes Decree 44 of 2010. The learned Magistrate by his transfer order dated 17/5/2011 transferred the case to High Court of Lautoka.
[35] Thereafter Sunita Devi was granted immunity and made a prosecution witness.
[36] By the Information filed in the High Court of Lautoka on 15/7/2011 the petitioner was charged as follows:-
Avnit Singh is charged with the following offence:-
Statement of Offence
Murder: contrary to Section 237 (a)(b) (c) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
Avnit Singh on the 3rd day of May, 2011 at Tuvavatu in the Western Division murdered Bal Krishna.
Dated at Lautoka this 15th day of July, 2011.
[37] The petitioner having pleaded not guilty, a trial was conducted at the Lautoka High Court before a judge sitting with assessors. After conclusion of the trial, the assessors expressed a unanimous opinion of not guilty.
[38] The learned trial judge having disagreed with the unanimous opinion, convicted the petitioner for the charge of murder by his written judgment dated 16/9/2014.
[39] By the sentencing order dated 26/9/2014 petitioner was sentenced to life imprisonment and not eligible for parole till completing 20 years of imprisonment.
Enlargement of Time
[40] Petitioner has lodged this application for special leave after the prescribed period of 42 days stipulated in Rule 5(a) of the Supreme Court Rules 2016. No reasons were submitted explaining the delay. It is observed that in either of the applications filed by him seeking leave, he had failed to move for enlargement of time. However, to avoid any probable injustice that would be caused to the petitioner I will proceed to consider granting enlargement of time.
[41] The necessity to obey the rules of Court was succinctly expressed by the Judicial Committee of Privy Council in Ratnam v Kumarswamy[27] as follows:
"The rules of Court must prima facie be obeyed, and in order to justify a Court in extending the time during which some step in procedure requires to be taken there must be some material upon which the Court can exercise its discretion."
[42] In Full Court decision of New South Wales namely R. v Albert Sunderland [28] which also being a case involving an application for extension of time after conviction, the Court held as follows:
“... (2) – that in view of the delay in applying "very exceptional circumstances would have to be established before the Court would be justified in granting the application."
[43] The factors that have to be examined in determining whether the interests of justice require allowing extension of time in enlargement of time applications were laid down in Kamlesh Kumar v State[29] by His Lordship The Chief Justice, Gates as follows:-
“Appellate Courts examine five factors by way of a principled approach to such applications. Those factors are:
(i) The reason for the failure to file within time.
(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate Court’s consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?”
[44] Depending on circumstances of each case, Court has a discretion to enlarge time so as to hear a meritorious appeal. In the case of Mohammed Sahid v State [30] it was observed that:
“14] The Courts in these circumstances possess discretion to enlarge time so as to hear a meritorious appeal or petition. Several cases in this jurisdiction have dealt with the way the Courts should evaluate these applications. Though the Courts will not be rigid in examining certain factors, it has been established that fairness is best observed by following a principled approach: Kumar v. The State; Sinu v. The State[31].”
[45] Enlargement of time has generally been permitted by Courts only in exceptional circumstances and that is only endeavor to avoid grave injustice that might otherwise occur from strict application of rules of Court. See the observation of Mchugh J, in Gallo v Dawson [32]
“The grant of an extension of time under this rule is not automatic. The objf the rule is to enso ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discreto extend time isme is giventhe sole purpose of enabling the Court or justice to do juso justice between the parties: see Hughes ional Trustees ExecuExecutomp; Agency Co of Australasia Ltd.[33] This means the discretion cion can only ercised in favour of an applicant upon proof that strict coct compliance with the rules will work an injustice upon the applicant. Inr to determine whether the rules will work an injustice, ite, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [34]; Jess v Scott[35] en the application is fois for an extension of time inh to file an appeal, it is t is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grip>[36]; 263-4; Mitcn v Mitchelson[37] . It io necessary to bear iear in mind in such an application that, upon the expirexpiry of the time for appealing, the respt has20;a d rightright to r to retain the judgment” unless the application is granted: Vil0;Vileniusinegar[38]. It ws that, before the appl applicant can succeed in this application, there must be material which I can be satisfied that to refuse the application woun would constitute an injustice.”(emphasis added)
[46] The delay here appears to be about 7 days. Even at the hearing of this appeal no reasons were placed before this Court for the delay. Thus I conclude that the Petitioner has totally failed to offer any excuse or reason for the delay
[47] Further, in the case of Rasaku v The State,[39] this Court had observed that - a petitioner who seeking a belated appeal in a criminal case, must at the lowest, be able to meet the threshold criteria set out in the section 7 (2) of the Supreme Court Act, No. 14 of 1998, and it is implicit that the criteria for granting enlargement of time are much more stringent than for the grant of leave in a timely application.
In the Court of Appeal
[48] The petitioner being aggrieved by the decision of the High Court, applied for leave to appeal against his conviction to the Court of Appeal. A single Judge of the Court of Appeal granted the petitioner leave to appeal on all the grounds submitted to that Court.
[49] Thereafter the petitioner pursued his appeal before the Full Court of Appeal of Fiji and the Learned Justices of the Court of Appeal (COA) by their judgment dated 4/10/2018 dismissed the appeal and affirmed the conviction and sentence.
[50] Being aggrieved by the above decision of the COA the petitioner had lodged his first leave to appeal application to the Supreme Court. At the hearing before this Court petitioner’s counsel confined himself to the grounds of appeal raised against conviction and sentence in the said amended petition received by this Court on13/8/19.
[51] As per para 7 of the COA judgment, the grounds that were considered by the Full Court of Appeal were as follows:-
“[7] A single Judge of this Court had granted leave to the Appellant to proceed on all the grounds of appeal that he had filed against conviction. The said grounds as contained in the Ruling are as follows:
d. That the learned Judge has erred in law and in fact when allowing hearsay evidence of the prosecution witness Subramani Mudaliar and then not directing his mind on the rule against hearsay.
Ground listed under item (d) had been abandoned by the Petitioner at the hearing before the COA.
[52] Since grounds (a) and (b) above are related to the caution interview, I would proceed to consider both together.
[53] During the voir dire inquiry the prosecution had called the interviewing officer (Hakim), the witnessing police officer (Kumar) and an independent witness by the name of Hydar Begg (who was a JP), who had been present there as an observer.
[54] By the voir dire ruling of the learned High Court Judge dated 08.9.2014, he had concluded that the caution interview of the petitioner recorded on 9.5.2011 was one made voluntarily and not made out of oppression and is therefore admissible in evidence. In paragraphs 18 and 20 of the said ruling, he had given the reasons as to why he had concluded that the confession was admissible. Paragraphs 18 and 20 are to the following effect:
“18. Under cross examination he admitted that he did not make a complaint to Hakim, Anoop or Mr. Begg. A Legal Aid lawyer had appeared
on behalf of him at Ba Magistrate Court. He did not tell him about the assaults. When he went to Court he was still in pain. But
he had not complained to anyone except his uncle. He admitted that he was not assaulted or threatened by Hakim or Anoop. He also
admitted that he came up with this assault complaint only in 2012.
20. Accordingly I have come to the view that in regard to any allegation of assault or threat by the police before and during the
interview, the state had satisfied me beyond reasonable doubt that it did not happen. I reject the evidence of the accused that he
was assaulted before the interview and was forced to sign the interview. I am satisfied that the interview was voluntary, that that
was obtained in fair circumstances, that that was in no way oppressed or beaten out of the accused in contravention of his rights
either under the Judges' Rules or of the Constitution. The independent witness who was present confirms this position.”
[55] On an examination of the said ruling it becomes amply clear that the learned judge had paid due consideration to the evidence that were placed before him with regard to the threats the petitioner had been subjected to. Paragraph 7 of the ruling has sufficiently dealt with the burden of proof with regard to voluntariness, fairness, lack of oppression, compliance with common law rights where applicable, and if there is non-compliance, lack of prejudice to the accused rests at all times with prosecution. Further he has stated that these matters must be proved beyond reasonable doubt.
[56] After calling the prosecution witnesses at the voir dire inquiry, the accused too had given evidence. It is noteworthy that in paragraph 18 of the ruling, the judge has specifically mentioned that under cross examination, the petitioner admitted that he did not make any complaint to any of the police officers or to Mr. Begg (who) being the observer. Mr. Begg too had been called by the prosecution at the voir dire. In examination - in-chief itself his testimony at PP- 155 & 156 of the HC Record had been to the following effect:
“Avnit gave answers. Avnit was normal. He gave answers without any fear. There were no injuries noted on his face. I sat throughout
the interview. Avnit did not make any complaint. During the break I personally asked him whether he was assaulted he said no. I confirm
there was no assault during the interview.”
In cross examination his stance had been that (at P-156) of the HC Record:
“ Q – You did not ask him whether he was assaulted.
A – I asked him he said he was not assaulted.
..............
Q – Isn’t it true my client was forced by Hakim and Anoop to sign the interview?
A – He was not forced.”
[57] Main issue raised by ground (b) appears that there was a serious doubt with regard to voluntariness, truth or correctness of the said confession for the reasons inter-alia that prime prosecution witness Sunita Devi having said in her examination-in-chief that, ‘she had seen the police officers assaulting the accused for 2-3 minutes at Namaka Police station. At Lautoka Police station she has told the accused to tell the truth so that they will not beat him’. She gave evidence only at the trial. As the petitioner was represented by counsel at the trial, he could have stressed upon re –directions with regard to this. But he had failed to do that. In view of the above analysis, I decline to take the view that the learned Judge had committed an error in concluding that the caution interview of the petitioner as admissible.
[58] The ground (c) submitted to COA was that the learned Judge erred in law and in fact when he did not direct himself that the prosecution witness, Sunita Devi, who was granted immunity would have implicated the petitioner. She was the first witness for the prosecution called at the trial. It is noteworthy that in her cross – examination when this was suggested to her she had specifically denied it. At p – 175 of the HC Record:
“ Q – I put it to you you are implicating my client to save yourself?
A - No I am not doing it to save myself.
The learned Judge in paragraph 12 of his judgment had concluded that she gave truthful evidence in Court.
[59] It appears that counsel for the petitioner had tried to argue this ground before the COA on the basis that Sunita Devi should have been treated as an accomplice. Paragraph 20 of the impugned judgment of the COA demonstrates the position that Sunita Devi was not an accomplice. The said paragraph 20 is reproduced below:
“[20] In regard to ground (c) referred to at paragraph 7 above, Counsel for the Appellant tried to elaborate this ground at the hearing before us by stating that Sunita Devi should have been treated as an accomplice. An accomplice is one who is a ‘partcipes criminis’ in the actual crime charged, whether as a principal and accessory. To be an accomplice it must be shown that the witness intentionally gave assistance and encouragement to the criminal activity of the accused. It is not sufficient to be a mere bystander, because a mere bystander is not at risk and therefore lacks the incentive falsely to implicate the accused which is the basis of the rule pertaining to accomplice evidence. It is clear from the evidence of the Appellant, both in his confession and testimony before the Trial Court (paragraph 13, 15 and 16 above), and the evidence of Sunita Devi (paragraph 8 above) that Sunita Devi was not an accomplice. It was never suggested to her at the trial by the defence that Sunita Devi was an accomplice. The learned Trial Judge had clearly stated in his Summing Up that Sunita Devi was not an accomplice, but yet given the necessary directions to the Assessors that “If a witness is an accomplice it is my duty to warn you that you should look for independent corroboration of that evidence and it is not safe to convict on uncorroborated testimony of an accomplice.” This should suffice to dispose of this ground of appeal.”
[60] In view of the above I find no error has been committed by the COA in arriving upon that conclusion.
[61] Ground (e) – that the learned trial Judge had erred in law and in fact when he failed to properly direct his mind to the alibi evidence of the petitioner’s father. I find that para - 27 of the COA judgment, demonstrates the reasons why this ground cannot succeed. Following are the reasons given:-
(i) Provisions in section 125 (2) (b) of the Criminal Procedure Decree 2009, were not complied with. That is, no notice was given in writing to the prosecution, complainant and the Court 21 days prior to the date set for the trial. Further the trial judge’s view had been that the petitioner had taken the defence of alibi at a very late stage of his trial, and
(ii) The Appellant’s father had not supported the evidence of the petitioner given at the trial to the effect that he was not at the house of the deceased (namely the scene of the crime) at the time the offence was committed.
[62] However, with regard to this the learned High Court Judge’s summing up also has to be considered. In paragraph 75 of his summing up, the defence of alibi has been dealt in the following manner:
“75. The accused's took a defence of alibi. He says that he was not at the scene of crime when it was committed. As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. Even if you conclude that alibi was false, that does not by itself entitle you to convict the accused. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a defence.”
In paragraph 44 of his judgment he has given reasons as to why he concluded that petitioner’s evidence was inconsistent. In paragraph 48 of the judgment he has rejected the version of the petitioner as it was untrue. In view of all the above, I find that the learned Justices of the Court of Appeal had not erred in rejecting this ground also.
[63] What is left for consideration now is ground (f) advanced before the Court of Appeal. This has been dealt in paragraph 28 of the impugned judgment of the Court of Appeal. How the learned High Court Judge had dealt with this ground namely, - he did not correctly direct himself on how to approach circumstantial evidence and what weight should be attached to it. The relevant paragraphs of the summing up appear to be 29 to 32, wherein he had given sufficient directions to the assessors on circumstantial evidence. As such ground (f) too lacks merit. Thus the conclusion of the COA Judges in rejecting the above ground is correct.
Grounds of Appeal submitted to this Court
Ground 1
[64] The thrust of this ground is that the Justices of the Court of Appeal failed to consider the evidence of Sunita Devi, to the effect that the petitioner was seen assaulted by the police was not considered by the trial judge when directing his mind to the voluntariness. This is almost same as the ground (b) submitted to the Court of Appeal. With regard to this issue in para 19, the COA Justices had said this:-
“....It is to be noted that the Appellant had been represented by a lawyer on 10th May 2011 when he was produced before the Court after his arrest and at the recording of his confession. The appellant testifying before the Court had admitted that he had not told his lawyer that he was assaulted by police and he had injuries. There is no evidence that the Appellant had visible injuries. Had the Appellant considered that the evidence of Sunita Devi which came in after the conclusion and ruling on the voir dire had a bearing on the voluntariness of the confession, as he is now claiming, he could have asked for a re-direction on the matter at the conclusion of the Summing Up. Relying on the cases of Alfaaz v State[40], Raj v State[41] and Varasiko Tuwai[42], I state that in the absence of cogent reasons for not raising the issue by way of redirection, this Court will be slow to entertain an appeal on this ground.”
[65] Further it is observed that the petitioner had not submitted a medical report of his own to substantiate the police assault. He was throughout represented by counsel in the Magistrate’s Court and also in the High Court. Perusal of para -12 of the High Court judgment makes it abundantly clear why he had concluded that Sunita Devi, was a truthful witness and also her evidence was consistent. Learned Judge when summing up has given sufficient directions regarding Sunita Devi’s evidence and also as to, who is an accomplice? When summarising her evidence, Judge has correctly dealt with her evidence regarding police officers assaulting the Petitioner for 2-3 minutes at Namaka Police Station – She told them to stop it and at Lautoka Police Station she told the Petitioner to tell the truth so that they will not beat him.
Having concluded the summing up the Judge had asked for re-directions, It is recorded that no issues from both parties – See P- 216 of HC Record. Petitioner was represented by Counsel on that day also. He had failed to utilise the opportunity by asking for re- directions. No reasons also given as to why this was not raised by way of re-directions. Thus, the Petitioner cannot complain now.
[66] In my view paragraph 20 of the voir dire ruling (at page 62 of HCR) would lend assistance in this regard. The said paragraph 20 is to the following effect:-
“20. Accordingly I have come to the view that in regard to any allegation of assault or threat by the police before and during
the interview, the state had satisfied me beyond reasonable doubt that it did not happen. I reject the evidence of the accused that
he was assaulted before the interview and was forced to sign the interview. I am satisfied that the interview was voluntary, that
that was obtained in fair circumstances, that that was in no way oppressed or beaten out of the accused in contravention of his rights
either under the Judges' Rules or of the Constitution. The independent witness who was present confirms this position.”
I agree with the reasons given by the Justices of Court of Appeal in paragraph 18 of the judgment, why the assessors opinion was perverse.
I cannot see any error in the above conclusion. Thus the above ground lacks merit and same is rejected.
Ground 2
[67] This has been reproduced under the sub-head “Introduction” above. The thrust of the complaint is that the COA Justices erred in law and in fact in finding that the learned trial judge was correct in stating in his summing up and in his judgment that Sunita Devi was not an accomplice and further no necessity to look for independent corroboration when her evidence also required a warning as to the danger of convicting upon it unless confirmed by evidence from some other source and failure to warn himself of the said danger in convicting upon it without independent corroborative evidence.
[68] I find paragraph 20 of the COA judgment had elaborately dealt with this. The said paragraph 20 has been reproduced above when dealing with ground (c) raised in the Court of Appeal. It appears that Sunita Devi had never been treated as an accomplice by he Court and also never suggested to her at the trial by the defence that she was an accomplice.
[69] The learned Trial Judge has dealt with the issue of required warnings with regard to an accomplice in paragraphs 42 and 43 of his summing up:
“42. Further at that stage I should give you legal directions to understand who is an accomplice. If a witness is an accomplice
it is my duty to warn you that you should look for independent corroboration of that evidence and it is not safe to convict a person
on uncorroborated testimony of an accomplice. Further it must be evidence which implicates an accused person that is, which confirms
in some material particular not only the evidence that the crime has been committed but also that the accused person committed it.
Sunita Devi was arrested, charged and then given immunity by the prosecution. That does not make her an accomplice. Who is an accomplice?
Persons who are participes criminis (one who has a share in crime: accessory) in respect of the actual crime charged, as principal
or accessories before or after the fact (in felonies).
43. The evidence given by Sunita Devi at the trial clearly places her at the scene of the crime. Is that evidence make you to conclude
that she is a principal or accessory after the fact. Is Sunita Devi's evidence tainted by an improper motive? There is no evidence
that Sunita Devi took any part in commission of the crime or that she aided or abetted the crime. The mere presence at the scene
does not make a person liable for the crime. However she had failed to report to any person till she called her dad. You have to
consider whether that is possible due to the fact she was de facto partner of the accused at that time and living with the accused's
family.”
[70] In this regard, I wish to cite the Supreme Court decision in Lalagavesi v State[43] where the Court relied on the House of Lords decision in Davies v DPP[44] said in para 14:
“14. The meaning of the term “accomplice” was laid down by House of Lords in Davies v DPP[45] that “includes (i) persons who are participles criminis in respect of the actual crime charged, whether as principal or accessories before or after the fact (in felonies) or persons committing procuring or aiding and abetting (in the case of misdemeanours); (ii) on a trial for larceny receivers as regards the thieves from whom they receive the goods; (iii) where a person is charged with a specific offence on a particular occasion, and evidence is admissible and had been admitted of his having committed crimes of the identical type on other occasions, as proving system or intent or negativing accident, parties to such other similar offences. No further extension of the term ‘accomplice’ should be accepted. This definition was adopted with approval by the Court of Appeal in Mudaliar v State [46].”
[71] In my view Sunita Devi was neither an accomplice nor an eye witness. Having granted immunity she was made a prosecution witness. Thereafter she was called by the prosecution at the Trial. It is noted that the Learned Judge in his judgment having stated that Sunita Devi’s evidence was uncontradictory and consistent, had concluded that her evidence was confirmed by the evidence of independent witness Ranjeet Singh, being the person who provided transport to the petitioner and Sunita Devi to Rakiraki town around 10 am on the day of the incident - 3/5/2011. He was not even cross – examined by the defence and as such defence had not disputed his evidence. Further in para 12 of the judgment, it is further concluded that - “The proved circumstances are only consistent with the accused having committed the crime. I am satisfied and sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the circumstances proved. That inference satisfies me beyond reasonable doubt that the accused assaulted the deceased with an axe and that inference is the irresistible and inescapable on the evidence”
For the above reasons I am satisfied that ground 2 raised in this Court lacks merit and it should fail.
Ground 3
[72] The question raised here was whether the COA erred in fact and in law in failing to properly consider the evidence of Sgt. Anoop and the laxity of the investigation that was carried out in the petitioner’s matter resulted in a substantial and grave miscarriage of justice to the petitioner. In this regard petitioner’s submission appears to be that his evidence which appears in his testimony before the High Court raises this issue. However, this was never raised before. This appears to be a highly misconceived ground .In other words what they are attempting is to emphasise that there should have been further investigations. Even from the testimony of Sgt.Anoop this complaint is not established. On the material available I am unable to agree that this caused substantial and grave injustice to the petitioner. Thus I conclude this ground lacks merit and it should fail.
Ground 4
[73] This ground involves failure of the COA Judges to consider the Trial Judge’s failure to give cogent reasons in his judgment whilst overturning the unanimous opinion of not guilty of the assessors resulting in a substantial and grave miscarriage of justice to the petitioner. At this juncture, examination of the trial judge’s reasoning embodied in the judgment of 16.9.2014 in this regard would become relevant. In terms of section 237 (4) of the Criminal Procedure Decree 2009, if the presiding Judge disagrees with the opinion of the assessors, he must give written reasons for deferring from the opinion and those reasons must be pronounced in open Court. When considering the judgment of the High Court Judge dated 16.9.2014, this matter has been dealt extensively. Paragraph 5 of the said judgment is reproduced below:
“5.If the presiding trial Judge disagrees with the opinion of the assessors, he must give written reasons for differing from the opinion and those reasons must be pronounced in open Court. (Section 237(4) of the Criminal Procedure Decree). The reasons for differing with the opinion of the assessors must be founded on the weight of the evidence and must reflect the presiding Judge's view as to the credibility of witnesses. (Ram Bali v Reginam[47], Shiu Prasad v Reginam[48]. In Setevano v State[49], the Court of Appeal stressed that the reasons of the presiding trial Judge:
"...must be cogent and they should be clearly stated. In our view they must also be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial."
[74] Further it is noted that the learned Judge had directed himself in accordance with the law and evidence contained in his summing up (paragraph 6 of the judgment). It is evident from paragraph 12 of the judgment, even the demeanor of the witness, Sunita Devi has been considered. Paragraphs 23 – 25 of the judgment, he has considered medical evidence in detail.
[75] Having examined the High Court judgment, I am satisfied that the reasons for differing from the unanimous opinion of the assessors are sufficiently dealt with giving cogent reasons. In paragraph 52 thereof he had been convinced that there is evidence beyond reasonable doubt against the accused to prove that he had committed the offence of murder. The said paragraph 52 is reproduced below:-
“52. Considering the evidence before the Court which I extensively discussed in my summing up to the assessors, I am convinced that there is evidence beyond reasonable doubt against the accused to prove that he had committed the offence of Murder as charged in the information. Evidence of the Sunita Devi establishes that the accused assaulted the deceased with an axe. The doctor's evidence confirms that cause of death is due to skull fracture. If a person uses a weapon like axe on the head of another person with fast manner to cause high energy trauma the only rational conclusion to be drawn is that it was done with the intention to cause death. That inference satisfies me beyond reasonable doubt that the accused assaulted the deceased with the intention to cause his death. That inference is irresistible and inescapable on the evidence. The caution interview of the accused which was given voluntarily confirms the above position”.
It is noteworthy that Doctor Kalugivaki who was called by the prosecution had given evidence on the post-mortem report (P2) prepared by Dr. Ponnu Swamy Grounder. His evidence at P-182 of HC Record was that:-
“Cause of death was due to fracture of the skull from blunt weapon; possible cause of injuries – Blunt weapon, something heavy that has been used in very fast manner to cause high energy trauma. When the question was asked -‘Would an axe be possible weapon? Answer was – “back of the axe could be the weapon” In cross- examination his evidence was that fracture noted on the deceased was most possible from a single blow.”
[76] I take the liberty to quote the following passage from the Supreme Court decision in Ram v State[50] where it was stated that:-
“80. 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”.
I should stress here when considering whether the HCJ has given cogent reasons, those must be founded on the weight of the entire
evidence led at the trial and HCJ’s views with regards to the credibility of witnesses and especially that must be capable
of withstanding in the light of the entirety of evidence presented at the trial. He has given sufficient reasons in his judgment
as to why the petitioner’s version in his testimony was inconsistent, improbable and untrue. .Even the alibi put forward in
his testimony has been rejected for the reasons spelt out in the judgment. I am satisfied with the reasons given by the HCJ. However,
I am mindful of the proposition that the petitioner doesn’t have to prove his innocence, or prove anything at all. The burden
to prove the guilt of the petitioner beyond reasonable doubt always lies with the prosecution throughout the trial and it will not
shift to the petitioner at any stage. In other words prosecution must stand or fall on its own legs and it cannot derive any strength
from the weakness in the defence case. On a careful scrutiny of the Learned Trial Judge’s judgment in this case, I am satisfied
that when differing from the unanimous opinion of the assessors, he had correctly evaluated the entire evidence led at the trial
and his ultimate verdict is well supported by the evidence placed before him and is not perverse. In view of the above, ground 4
submitted to this Court lacks merit and this ground also should fail.
[77] When considering whether to grant enlargement of time, the necessity would always arise to consider whether the COA has sufficiently dealt with grounds urged before the Court in their impugned judgment. In the preceding paragraphs of this judgment I have considered the conclusions of the COA with regard to the grounds of appeal submitted to it and I have already concluded that I am in agreement with the findings of the COA in rejecting those grounds. Further, I am inclined to the view that the grounds of appeal submitted to this Court also need careful consideration, as to whether any miscarriage of justice would be caused to the petitioner if those grounds are not allowed. I have dealt with those grounds under the sub head – ‘Grounds of appeal submitted to this Court’. For the reasons spelt out when dealing with the grounds submitted to this Court, I have concluded that all grounds submitted to this Court lack merit and those should fail. In those circumstances, I find that there is no ground of merit justifying the Appellate Court’s consideration.
[78] I shall now advert to consider – if time is enlarged, will the respondent be unfairly prejudiced. The petitioner had been charged with regard to an offence alleged to have been committed on 3rd May 2011. The matter had been pending for over 8 years. I have already concluded that there are no grounds of appeal that would probably succeed. Failure of the petitioner to move for enlargement of time in his first application or in the amended petition, has deprived the respondent of getting notice of it. No explanation also has been submitted by the petitioner for the delay in filing the first notice of appeal in this Court. In those circumstances, if time is enlarged grave prejudice will be caused to the respondent.
[79] The criteria for granting enlargement of time in a belated appeal in a criminal case is always much more stringent than for the grant of leave in a timely application as observed in Rasaka v State. This has been already discussed under the sub head ‘Enlargement of time.’ For all the reasons enumerated above I conclude that the petitioner, has even at the lowest, failed to meet the threshold criteria enumerated in Section 7(2) of the Supreme Court Act, No.14 of 1998. Enlargement of time is therefore refused.
Jurisdiction of the Supreme Court in Special Leave to Appeal
[80] The Supreme Court is the final appellate Court and it derives exclusive jurisdiction to hear and determine appeals from all final judgments of the Court of Appeal – vide sub Sections 98(4) of the Constitution, an appeal may not be brought to the Supreme Court from a final judgment of the Court of Appeal unless the Supreme Court grants leave to appeal. Section 98(4) states that:-
“An appeal may not be brought to the Supreme Court from a final judgment of the Court of Appeal unless the Supreme Court grants leave to appeal.”
[81] Section 7 of the Supreme Court Act No. 14 of 1998 also becomes relevant:-
“Section 7(1). In exercising its jurisdiction under Section 98 [formerly section 122] of the Constitution with respect to special leave to appeal in any civil or criminal matter, the Supreme Court may, having regard to the circumstances of the case-
(a) refuse to grant special leave to appeal;
(b) grant special leave and dismiss the appeal or instead of dismissing the appeal make such orders as the circumstances of the case require; or
(c) grant special leave and allow the appeal and make such other orders as the circumstances of the case require.
Section 7(2). In relation to a criminal matter, the Supreme Court must not grant special leave to appeal unless-
(a) a question of general legal importance is involved;
(b) a substantial question of principle affecting the administration of criminal justice is involved; or
(c) substantial and grave injustice may otherwise occur”.
[82] Further in Aminiasi Katonivualiku v State[51] this Court clarified the jurisdiction of the Supreme Court at page 3 as follows:
“It is plain from this provision that the Supreme Court is not a Court of criminal appeal or general review nor is there an appeal to the Court as a matter of right and whilst we accept in an application for special leave some elaboration on the grounds of appeal may have to be entertained, the Court is necessarily confined within the legal parameters set out above, to an appeal against the judgment of the Court of Appeal which in this instance, was an order for new trial.”
When the Supreme Court is exercising its powers vested under Section 7(2), it is not required to act as a 2nd Court of criminal appeal, but only will consider as to the question of law advanced is one of general legal importance or a substantial question of principle affecting the administration of criminal justice is involved or whether substantial and grave injustice may otherwise occur if leave is not granted.
[83] In the case of Livia Lila Matalulu and Anor v The Director of Public Prosecutions,[52], their Lordships expressed the role of the Supreme Court of Fiji in special leave to appeal matters in the following words;
“The Supreme Court of Fiji is not a Court in which decisions of the Court of Appeal will be routinely reviewed. The requirement for special leave is to be taken seriously. It will not be granted lightly. Too low a standard for its grant undermines the authority of the Court of Appeal and distract this Court from its role as the final appellate body by burdening it with appeals that do not raise matters of general importance or principles or in the criminal jurisdiction, substantial and grave injustice”
[84] In this jurisdiction it has re-affirmed the position that the criteria stipulated in Section 7(2) of the Supreme Court Act No. 14 of 1998 are extremely stringent and special leave to appeal should not be granted by this Court as a matter of course. The following observations were made by this Court in Dip Chand v State[53] would strengthen the above principle:
"....Given that the criteria is set out in Section 7 (2) of the Supreme Court Act No. 14 of 1998 are extremely stringent, and special leave to appeal is not granted as a matter of course the fact that the majority of the grounds relied upon by the Petitioner for special leave to appeal have not been raised in the Court of Appeal makes the task of the Petitioner of crossing satisfying (sic) the threshold requirements for special leave even more difficult."
Viewed in the above context, the petitioner has failed to meet the threshold for the grant of special leave stipulated in section 7(2) of the Supreme Court Act No. 14 of 1998. Thus leave to appeal against conviction is refused.
Sentence
[85] By the sentencing order of the learned High Court Judge dated 26th September 2014, the Petitioner was sentenced for life imprisonment and not eligible for parole till completing 20 years imprisonment. As per paragraph 3 of the COA judgment the petitioner had lodged an appeal only against conviction in that Court. Further it appears that the ruling of the single judge of the COA, had granted leave only against the conviction. After hearing, the COA had proceeded to dismiss the appeal and affirm the conviction and sentence. By paragraph 4 of the aforementioned amended petition, the petitioner has appealed the sentence also in this Court. Thus necessity has now arisen to examine the sentence.
[86] Paragraph 2 of the above order shows that the High Court Judge had been mindful of the fact that unanimous opinion of not guilty of the assessors was overturned and he proceeded to convict the Petitioner for the offence of murder. The facts proved at the trial were summarized in paragraph 3 of his order, which are to the following effect:-
“You and your de facto wife were given work by the deceased in his farm. You have lived and worked there for about a week. On the date of the incident, you have assaulted the deceased with the back of an axe while the deceased was having his breakfast. This axe was used in a fast manner to cause skull fractures. Then you left the deceased injured and fled to your parent's house at Nadi with your de facto wife.
You were arrested few days later after your de facto wife informed her father about the incident. You have admitted the offence in your caution interview statement.”
[87] Further, it appears from his order he had considered the detailed submissions and the authorities filed by both parties on sentence and fixing of the non-parole period.
[88] In determining a non-parole period by a Court Section 18 of the Sentencing and Penalties Act 2009 would become relevant. This reads as follows:-
“18. - (1) Subject to sub-section (2), when a Court sentences an offender to be imprisoned for life or for a term of 2 years
or more the Court must fix a period during which the offender is not eligible to be released on parole.
(2) If a Court considers that the nature of the offence, or the past history of the offender, make the fixing of a non-parole period
inappropriate, the Court may decline to fix a non-parole period under sub-section (1).
(3) If a Court sentences an offender to be imprisoned for a term of less than 2 years but not less than one year, the Court may fix
a period during which the offender is not eligible to be released on parole.
(4) Any non-parole period fixed under this section must be at least 6 months less than the term of the sentence.
(5) If a Court sentences an offender to be imprisoned in respect of more than one offence, any non-parole period fixed under this
section must be in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences
imposed.
(6) In order to give better effect to any system of parole implemented under a law making provision for such a system, a Court may
fix a non-parole period in relation to sentences already being served by offenders, and to this extent this Decree may retrospective
application.
(7) Regulations made under this Decree may make provision in relation to any procedural matter related to the exercise by the Courts
of the power under sub-section (6).
[89] In terms of the above Act of 2009, non-parole period has been defined as follows:-
"non-parole period" means any period fixed under Part V during which an offender who is sentenced to a term of imprisonment is not eligible to be released on parole.”
[90] The sentencing Court is left with no discretion but to impose a mandatory sentence of life imprisonment for a person convicted of murder. Under Section 18(1) above, subject to sub-section (2), when a Court sentences an offender to be imprisoned for life Court must fix a period during which the offender is not eligible to be released on parole. Said sub-section (2) has laid down the instances that make the fixing of a non-parole period inappropriate. In my view, none of the instances spelt out in the above sub – section 2 exist here. Thus under Section 18(1) of the above Act, because the sentence is a mandatory life term, non-parole period must be fixed. Then the discretion lies in deciding what the length of the non-period should be.
[91] In this regard I take the liberty to cite Nacani Timo v. State[54], wherein it was observed that sentencing judge will have to give reasons on the question of whether a non-parole period should be fixed and if so, what should be the period.
[92] In the sentencing order, the learned High Court Judge having weighed the aggravating factors against the mitigating circumstances laid out in paragraph 8 of the order had fixed the non-parole period as 20 years. Paragraphs 8 and 9 of the said order are reproduced below:-
“8. Aggravating factors;
(i) Use of a weapon
(ii) Nature of injuries on the deceased
(iii) The age of the deceased
(iv) You have shown no remorse for your conduct.
(i) You are first offender
(ii) You are 22 years old and therefore young offender
(iii) You are the sole breadwinner of your family
(iii) You were in remand from 8.5.2011 to 7.6.2011 for a period of 29 days and from18.10.2012 to 14.11.2012 for a period of 26 days.”
Following additional aggravating factors also had existed: (a) Prior planning –having brought the axe the petitioner had asked Sunita Devi to go and sleep in the next room. In about five minutes she had heard the sound of a blow – loud sound hitting someone; (b) This was a violent attack on an a defenceless man, having breakfast; and (c) Threats used by the petitioner to hide his criminal conduct.
[93] A trawl through the sentencing orders made for murder in this jurisdiction amply demonstrates when deciding the non–parole period the sentencing Judge has to weigh aggravating factors against mitigating circumstances, those are peculiar to each case and also the non-parole period for murder varies widely depending on the circumstances peculiar to each case. In State vs. Lepani Temo[55] non-parole terms was fixed as 18 years. Court proceeded to state as follows:-
“This was a violent and unnecessary attack on a defenseless woman who was in fear of you despite your earlier loving relationship. To reflect that horrific crime and to protect the community for some time in the future, I order that you serve a minimum term of eighteen years for this offence.”
[94] In the case of State vs. Rokete [56] [2014] FJHC 114: HAC 084 of 2009 (4/3/2014) – when sentencing for murder Court stressed upon the following principle:
“For the offence of murder I have no option but to pass a sentence of life imprisonment. That is the sentence fixed by law. I do however have the discretion to determine a minimum term which you must serve before you are eligible for parole. This Court said in Nilesh Chand[57] a minimum term is set so that the community can be assured that persons taking the lives of others may serve a meaningful period in custody. It was said that a murder with intention to kill will attract a longer term than a murder committed by recklessness.”
[95] In this regard I wish to cite the proposition of law enunciated in Natini v State[58] to the following effect:-
“While leaving the discretion to decide on the non-parole period when sentencing to the sentencing judge, it would be necessary to state that the sentencing judge would be in the best position in the particular case to decide on the non-parole period depending on the circumstances of each case.”
[96] In view of the above analysis I am satisfied that the Learned High Court Judge has sufficiently addressed his mind - to whether a non-parole period should be fixed and if so what the period should be.
[97] Considering all above, I conclude that the Petitioner has failed to meet the threshold for grant of special leave enumerated in Section 7(2) of the Supreme Court Act of 1998. Thus, I see no reason to grant leave to appeal against sentence. Leave against sentence is also refused. Sentence imposed by the High Court is affirmed. In the result, I would refuse enlargement of time, refuse leave to appeal against conviction and sentence, uphold the decision of the Court of Appeal and affirm the conviction entered and sentence imposed by the High Court.
Stock, J
Introduction
[98] I have had the advantage of reading in draft the judgment of Ekanayake J and find that I must respectfully disagree with that judgment and with the orders she proposes.
[99] There are in my opinion a number of unsatisfactory features of the trial of this case in the High Court which are such as to warrant leave to appeal to this Court and to require that the appeal be allowed, and the conviction set aside.
The time factor
[100] Before I turn to the facts of the case and the issues which are presented by the summing up and the judgment, I wish to bring to the fore the question of enlargement of time. I do so because I fundamentally, albeit respectfully, disagree with the approach adopted by Ekanayake J in her judgment, both in respect of the general principles which are suggested and also in respect of the suggested effect of the delay in this particular case.
[101] The decision of the Court of Appeal in the present case was handed down on 4 October 2018. The original petition filed by the petitioner is dated 23 October 2018, well before expiry of the 42 days time limit to which Ekanayake J refers[59]. The document was filed on 22 November 2018, which is 49 days after the decision of the Court of Appeal which is to say, as her Ladyship points out[60], 7 days after expiry of the time limit. Yet I see on a typed copy of that petition a stamp of the Suva Correctional Centre dated 23 October 2018. It seems to me therefore that we can safely assume that the prison authorities were handed the document by the petitioner well within the time limit, so that if there was indeed a delay in sending the petition to the court for filing, that was not a delay that can be laid at the petitioner’s door. That should be an end of the matter, by which I mean that the time issue should on this basis alone be resolved in the petitioner’s favour.
[102] But even if that were not so, even if the fault were his, we are talking here of a delay of a mere seven days. This is a case in which a petitioner has been sentenced to life imprisonment with a minimum term of twenty years. The notion that, in such a context, a delay of seven days should be considered a material factor seems to me to sit ill with any sense of justice; it would, in my respectful view, turn the administration of criminal justice into the administration of rules at the expense of justice. And the proposition that this seven day delay is material becomes even less tenable – if that were possible - in light of the fact that in this case, three assessors were of the opinion that the petitioner ought to be found not guilty, though by mentioning this, I should not be taken by any means to suggest that it is a determining factor; my view would be the same without it.
[102] I note the suggestion in her Ladyship’s judgment[61] that if time is enlarged grave prejudice will be caused to the respondent. What that prejudice may be is not stated. Nor was any suggested by the respondent; and I do not begin to see what prejudice has been, or could conceivably be, caused to the respondent by an enlargement of time in this case. The respondent could be expected to respond to an appeal or application for leave to appeal lodged in time, that is to say, on or before 15 November 2018. It would not be open to the respondent in such circumstance to assert any prejudice. So the prejudice which the respondent would have to show would be a prejudice caused by or occasioned in the next 7 days. But nothing happened in those seven days. Nothing is even suggested to have happened in those seven days. Accordingly, the respondent was in no different position 49 days after the appeal was decided than it had been 42 days after the appeal had been decided. In short, there was no prejudice.
[103] Reference is made[62] to the decision in Kamlesh Kumar v State as to factors to be taken into account when applications are made to enlarge time for leave to appeal. The first is the reason for the failure to file within time, as to which, in this particular case, the reason seems to have been an administrative one. The second factor is the length of the delay, as to which, in this particular case, the length of the delay could hardly have been shorter. The third factor is whether there is a ground of merit, as to which, in this particular case, it seems to me there clearly is. The fourth factor relates to substantial delay which, in this particular case, does not arise. The fifth factor is whether the respondent will be unfairly prejudiced as to which, in this particular case, the answer is clearly ‘No’.
[104] I note reference to a series of cases cited in her Ladyship’s judgment dealing with enlargement of time. They do not, however, support the suggested proposition that enlargement of time is generally permitted only in exceptional circumstances.
[105] The case of Ratnam v Kumarswamy[63] was a civil case in which an application was made to extend time to file a record of appeal. The Court of Appeal of the then Federation of Malaysia refused in the exercise of its discretion to extend time and the basis of the judgment of the Privy Council was twofold. First, the Privy Council was asked to overturn the exercise of a discretion by a lower court, and their Lordships emphasised that a court “will not interfere unless it is clearly satisfied that the discretion has been exercised on a wrong principle and should have been exercised in a contrary way or that there has been a miscarriage of justice ... . Upon questions of procedure the Board is slow to interfere with the discretion exercised by a local court ... .”[64] Their Lordships expressed themselves satisfied “that to allow this appeal would be substantially to interfere with the practice of the Board in regard to applications of this nature. The Board is not familiar with the practice in local Courts and their Lordships are most unwilling to interfere with the exercise of their discretion upon questions of procedure.”[65] Secondly, the case turned on the principle that in order to justify an extension of time “there must be some material upon which the Court can exercise its discretion” and the Privy Council in that case was satisfied that the Court of Appeal had been entitled to take the view that what had been placed before that Court “did not constitute material upon which they could exercise their discretion in favour of the appellant.”[66] The case is not authority for a rigid approach to extension of time and is palpably distinguishable from the present case before us. First, the present case before us is a criminal case and not a civil case and since criminal cases inevitably involve the liberty of the subject, a more generous approach is required. Secondly, we are not here concerned with the exercise of discretion by a lower court as to enlargement of time and, thirdly, this is not a case in which it could conceivably be said with any justification that there is no material upon which we can exercise our discretion as to enlargement of time.
[106] R v Albert Sutherland[67] was a criminal case, but it too can readily be distinguished from the present case for it involved a delay of six months – not seven days - and what the Court there said[68] was that “such a long delay as this could be excused if at all only in very exceptional circumstances” where the words which I have emphasised – “as this” – refer to a delay of six months on the facts of that case and, in context, are key words. The judgment does not establish any principle that an extension of time in which to appeal a conviction or a judgment in a criminal case may only be permitted in exceptional circumstances.
[107] Gallo v Dawson[69] was not a criminal case but in any event concerned an application made over 16 months out of time and, as the citation in paragraph [16] above shows, the court emphasised that the discretion to extend time is given in order to enable the court to do justice, so that it is a discretion which should be exercised in favour of the applicant for an extension of time where strict compliance with the rules will work an injustice upon the applicant. That is precisely what the petitioner in this case would assert if he were denied a remedy on the basis of the seven day delay.
[108] The decision in Rasaku v The State[70] does not support the proposition suggested that, in general, the criteria for granting enlargement of time are much more stringent than for the grant of leave in a timely application. Indeed, it is significant to note that Rasaku’s application for special leave to appeal was dated only three days after pronouncement of the impugned judgment of the Court of Appeal although lodged some 10 months later and that the Supreme Court said, in his case, that his “application for enlargement of time deserves to be considered with sympathy, as he has done the best he could as a prisoner undergoing a sentence of life imprisonment.”[71] In our present case, the application is dated within the time limit and lodged one month later, a mere seven days out of time. The delay in the case of the other petitioner (Momoivalu) was almost a year which, not surprisingly, the Court considered less acceptable.
[109] In short, therefore, a rigid and inflexible approach to enlargement of time, especially in criminal cases, which by definition involve the liberty of the subject, is contrary to fundamental principle. The circumstances will vary from case to case and require to be assessed in light of the factors specified in Kamalesh Kumar v State[72]. Applying the approach specified in that case and for the reasons which I have given, I feel bound to suggest that to permit a delay of seven days – even if it were the fault of the petitioner – to constitute a barrier or hurdle would be contrary to established principle and incommensurate with fundamental justice. I would have no hesitation in extending time.
The evidence
[110] I do not find it necessary to rehearse the evidence other than very broadly. The petitioner was aged 19 years at the date of the killing in question. He was living with Sunita Devi, a lady then aged 32. Both of them worked on a farm which was owned by the deceased. The evidence of Devi was that the deceased had made unwanted sexual advances to her. She reported this to the petitioner, who was angered by what he heard. On the morning in question, 3 May 2011, according to Devi’s testimony, the deceased told him to chop some wood. The petitioner fetched an axe. He told her to go to another room. Then she heard a loud sound. She saw the petitioner with axe in hand and the deceased prone on the floor. The petitioner washed the axe and told Devi to pack. She did so and they left the house. They stopped a driver and secured a lift. They went to the dwelling of the petitioner’s parents where, according to this testimony, the petitioner said that he had killed the deceased. She said in her evidence that she then called her father but it emerged that she first spoke to her father some days later. She was arrested and charged with murder but the charge was not pursued. She gave evidence under an immunity from prosecution.
[111] Devi’s father testified that he had made contact with his daughter on 8 May and that she had told him that the petitioner had killed the deceased.
[112] The deceased’s body was discovered on 7 May. The petitioner was interviewed and confessed to the killing. He challenged the admissibility of the confession on the basis that he had been assaulted and that it was not made voluntarily. After a voir dire, the confession was ruled admissible.
[113] The petitioner testified in his defence. His defence was that he had not killed the deceased. He and Devi had left the farm early in the morning of 3 May 2011 by which time the deceased had gone out to graze his horse.
The conviction
[114] The assessors returned a unanimous opinion that the petitioner was not guilty. The judge did not agree with them and convicted the petitioner.
The confession
[115] A significant part of the prosecution case was the confession by the petitioner. The admissibility of that confession was challenged on the basis of an alleged assault at the Namaka police station upon his arrest and of threats made and inhumane treatment whilst there. The interview of him which resulted in his confession took place the following day at the Crime Office of Rakiraki Police Station. Having received the testimony of police officers, of a Justice of the Peace, Mr Begg, who had been called in by the police as an independent witness to the interview, and of the petitioner, the trial judge ruled the evidence to be admissible as having, in his judgment, been made voluntarily. There can thus far be no complaint.
[116] However, at the trial of the general issue, Devi was the main prosecution witness. She had not testified on the voir dire. She, as we have seen from my brief summary of the evidence, was with the petitioner in the house where, and at the time when, the petitioner is said to have killed the deceased in response to an allegation by her that the deceased had sexually harassed her. Her testimony was highly incriminatory of the petitioner. However, what is significant for present purposes is the evidence she gave in cross-examination. She too had been arrested and taken to Namaka Police Station. She said in cross-examination that whilst there, she saw the petitioner in the Crime Room. She saw him being assaulted by police officers. When asked by counsel for the petitioner for how long the assault took place, she said it had lasted about two to three minutes and that she had told the police officers “not to do it.” She was asked by counsel: “Did you tell him just to admit to police so that they will stop beating him?” and she replied “Yes”. Then it was put to her that she had told the petitioner to tell the police that the deceased had been touching her and that he, the petitioner, had then become angry (with the deceased). She accepted that she had told the petitioner to say these things to the police. Then this: “Isn’t it true that was what police told you to say?” and she answered: “Yes”.
[117] What was significant about this evidence is that it came from a witness who could hardly be said to have been favouring the petitioner. She had given damning evidence against him about the killing of the deceased yet her evidence accorded with the petitioner’s testimony that he had been assaulted, that Devi had told him that police officers had suggested to her that he should say he had killed the deceased and that she had added that if he did not say so, he would be beaten again.
[118] When the assessors returned a unanimous opinion of not guilty, it fell to the trial judge to take their decision into account and to explain, if he differed, why he nevertheless was sure of the petitioner’s guilt. In the event, he did differ from the assessors and delivered his judgment on 16 September 2014. He dealt at some length, understandably, with the cautioned interview and it is evident that he placed considerable reliance on it. Indeed, he said: “The caution interview statement alone is sufficient to establish all the elements of the charge.”
[119] In relation to the testimony of Devi, he said: “In my mind there is no doubt that she gave truthful evidence in Court. She was prompt in answering the questions put to her by the prosecution as well as the defence. She was not evasive in her answers. She told her father about the incident a few days after the incident.[73] There were no contradictions in her evidence.” That appears to be a considered and full endorsement by the judge of her credibility.
[120] So the question must be posed: Given the credibility of her testimony in the eyes of the judge, what was the effect of her testimony that she had witnessed the petitioner being assaulted, that the police told her to tell the petitioner what to say about the cause of his attack on the deceased, and that she told him to admit the offence to avoid a further beating? Shortly before he addressed the question of her credibility in his judgment, the judge noted that she had said she saw an assault. Yet he says nothing of what he made of that testimony.
[121] As regards this point, the Court of Appeal commented that it failed to understand why the petitioner had not called Devi to testify on his own behalf on the voir dire. That, in my respectful opinion, is not a valid consideration. First, the burden was not on the petitioner to prove that the statement was involuntary and secondly, she had been given an immunity from prosecution and the prosecutor intended to call her as the main prosecution witness on the general issue so that it would have been a bold move for those advising him to call her as a witness. But in any event, such a suggestion does not address what in fact transpired, which was that on the general issue, she testified and she gave evidence, which the judge did not exempt from his acceptance of her credibility, which went directly to the reliability of the confession so that, in my judgment, it was incumbent of the judge in his judgment to explain why, in the face of that evidence and his favourable assessment of her credibility, he nevertheless found it safe to rely on the confession. He did not do so.
[122] A further reason given by the Court of Appeal for concluding that the point did not avail the petitioner on appeal was that the petitioner had failed to ask for “a re-direction on the matter at the conclusion of the Summing Up.” This, with respect, is difficult to follow, for on this issue there was no basis on which to seek a re-direction in respect of the summing up, because in the summing up the judge had reminded the assessors of Devi’s evidence and had given an adequate direction on their approach to the alleged confession were they to take the view that it had not been made freely. The problem which presents itself is a problem arising from the subsequent judgment by the trial judge, the terms of which counsel for the petitioner could not anticipate and there was nothing he could do about it once the judgment was delivered. And the problem remains that the judge neither explained in that judgment what he made of that part of Devi’s testimony about the beating and what she told the petitioner, nor, if he disregarded it, why he disregarded it.
[123] In fairness to the Court of Appeal, I recognise that the relevant ground of appeal before that Court was that, in the light of the evidence of Devi, the confession should not have been admitted in the voir dire. That was a strange complaint to make given that she had not testified in the voir dire. It would appear from the Court of Appeal’s judgment that the issue of voluntariness was not pursued in argument before that Court but rather the question of the truthfulness of the confession in light of Devi’s testimony that she had urged the petitioner to tell the truth. That approach also rather missed the central point. Where counsel might legitimately be criticised in relation to the defence approach at the trial itself is in the failure, after Devi’s testimony, to invite the judge to revisit the ruling on the voir dire and it may be that this is what the Court of Appeal had in mind when referring to the failure to seek a re-direction.
[124] Given the importance of the confession to the decision of the trial judge, the unsatisfactory way in which the ground was framed in the Court of Appeal should not, in my judgment, preclude consideration of the complaint as it is now couched, not least because the effect of Devi’s evidence as to the beating and what she said to the petitioner was raised before that Court.
[125] Much is made of the testimony of the independent witness in the voir dire, Mr Begg, that at the interview, the petitioner appeared normal and said that he had not been assaulted. That evidence was, of course, highly relevant, tending to suggest that there had not in fact been an assault. Yet the assaults alleged by the petitioner were said to have taken place not at the police station where the interview was conducted but the previous day at a different police station and Mr Begg conceded in cross-examination that he had not asked the petitioner “whether he was assaulted before”. It is not clear whether by “before” he was referring to earlier on the day of the interview or to the previous day. Be that as it may, if the testimony of Devi was correct, namely, that on that previous day she had seen the petitioner assaulted and had conveyed to him the message that unless he confessed he would be beaten further, the question which the judge had to address was whether that was or might be true and if so whether, despite what Mr Begg saw and might have been told, the effect of such impropriety as may have taken place the previous day and of what Devi had told the petitioner to say, might explain the petitioner’s conduct in the presence of Mr Begg the following day and might render inadmissible the admissions made in his presence.
Hearsay and recent complaint
[126] One of the witnesses for the prosecution was Devi’s father, Subramani Mudaliar. He was called to give evidence of a telephone call with Devi on 8 May 2011 that is five days after the date on which the killing is said to have taken place. In examination-in-chief, he said that she had telephoned him and had said that she needed the police because the petitioner had killed the man at the place they were staying, and she asked him to report the matter to the police. He then called the deceased’s brother and then the police called him, Mr Mudaliar.
[127] In cross-examination, however, he accepted that it was he who had called his daughter and that he had told her that the man they were staying with was dead. In other words, her revelation to him about the killing was not instigated by her; it was in response to a call and query made by him. He confirmed in cross-examination that all he could offer was what his daughter had told him.
[128] It is difficult to discern the basis upon which this evidence was deemed admissible. If it was called to establish the truth of what Devi had told him, it was inadmissible hearsay because it was evidence of a statement made by someone other than the witness testifying and was adduced to establish the truth of what that other person had said.
[129] I note that the Court of Appeal said that this was not hearsay evidence but only a repetition of the evidence already given by Devi. That, with respect, is not an answer to the problem posed. Inadmissible evidence of one witness does not become admissible evidence merely on the footing that it accords with the evidence of another witness. It was clearly hearsay evidence and unless it fell within a recognised exception to the rule against hearsay in criminal proceedings, it was inadmissible.
[130] In his summing up to the assessors, the judge said that the prosecution had called this evidence:
“.... to establish that Sunita Devi had told her father about this incident on the first available opportunity. If you accept this evidence beyond reasonable doubt you have to decide whether under the circumstances Sunita Devi made a recent complaint.”
[131] There are several fundamental problems with that direction:
(1) recent complaint is only available as an exception to the rule against hearsay in criminal proceedings in sexual cases. This was not a sexual case and in any event Devi was not a complainant;
(2) a complaint in sexual cases is only recent if it is made at the first opportunity which reasonably presents itself. Devi’s
report to her father was made five days after the alleged killing and, even ignoring the fact that it was not a report by a complainant
in a sexual case, it could not be said to have been made at the first opportunity which reasonably presented itself and, accordingly,
it was not appropriate to categorise it as a recent complaint; and
(3) in any event, even in cases of sexual offences where evidence of recent complaint is admitted, the complaint is not evidence of
its truth; it goes, rather, to consistency. In the present case, the judge did not explain to the assessors that the statement by
Devi to her father could not on any view be taken as establishing the truth of what Devi had told her father.
[132] It would appear from the direction which the judge gave the assessors that the evidence may have been tendered to establish a prior consistent statement by Devi, thereby to bolster her credibility. But if that was the basis of tendering the evidence, that too was not a permissible, for the fundamental rule is that:
“The evidence of a witness cannot be corroborated by proving statements to the same effect previously made by him; nor will the fact that his testimony is impeached render such evidence admissible.”[74]
[133] It is otherwise if the evidence is adduced to rebut an allegation of recent fabrication. But that was not, so far as I can tell, alleged against her in this case.
[134] In the circumstances, I am unable to identify any basis at all upon which this evidence was admissible. It should not have been tendered and it should not have been relied upon.
[135] It is right to note that counsel for the petitioner apparently abandoned this point on appeal. He should not have done and in my opinion that abandonment should not preclude this Court from addressing it. In noting that abandonment, the Court of Appeal quite rightly considered whether the abandonment was justified. “... rightly so,” said the Court of Appeal of the abandonment[75] and then, in a few words, gave its reasons for deeming the abandonment to be justified, reasons which I have earlier found to be unsustainable.[76] No doubt if the Court of Appeal, having thus considered the question, had concluded that the hearsay point was a valid one and material, it would have said so and determined the appeal with that finding in mind, despite counsel’s misguided proposal to abandon it. In a criminal appeal, an appellate court, in deciding whether a conviction is safe, would be failing in its duty if it ignored a material meritorious ground merely on the basis that counsel is minded not to pursue it. In the present case, the hearsay point is far from academic. It is obvious that the judge placed reliance on the evidence of the father. He said in his judgment that he had watched the father testify and “there is no doubt in my mind that he is telling the truth.” There is no other conclusion to be drawn but that the judge considered the evidence of the father about what his daughter told him to be evidence which bolstered the case against the petitioner. In so doing, he unfortunately misdirected himself; it was a highly material misdirection and, in my judgment, this Court would be remiss in not recognising it simply because it was not pursued either in the Court of Appeal or in this Court.
The consequence thus far
[136] There were two central pillars of the prosecution case. One was the confession, the other the testimony of Devi. The question whether weight could be attached to the confession was therefore crucial, and in that regard, the judge has not explained the impact of material evidence which emerged in cross-examination of Devi, that should have raised questions about the voluntariness and reliability of that confession. On the second central pillar, the inculpatory testimony of Devi, the judge treated that as bolstered by evidence which was inadmissible. It is difficult to see how the conviction can properly be sustained in the light of these factors.
[137] These two issues suffice, in my judgment, to dispose of this appeal in favour of the petitioner but there are two more issues which merit attention.
Intent
[138] The judge correctly directed the assessors on the elements of the offences of murder and of manslaughter as defined by sections 237 and 239 of the Crimes Act. In order to establish murder, it was incumbent on the prosecution to prove that the petitioner intended to cause death or was reckless as to causing death. Absent that intention or recklessness, an intent to cause serious harm is not sufficient to establish murder but is sufficient to establish manslaughter.
[139] The cause of death as assessed by the medical expert was a fracture of the skull caused by a blunt weapon; something heavy had been used in a very fast manner to cause high-energy trauma, he said. It was possible that the weapon could have been the back of an axe and when asked whether it was his opinion that the fracture could have been caused by a single blow his answer was: “Most possible could be from a single blow.”
[140] In his judgment, the judge said that if a person used a weapon like an axe on the head of another person in a fast manner to cause high-energy trauma the only rational conclusion was that the act had been done with the intention to cause death. “That inference satisfies me beyond reasonable doubt that the accused assaulted the deceased with the intention to cause his death. That inference is irresistible and inescapable on the evidence. The caution interview of the accused which is given voluntarily confirms the above position.”
[141] But the cautioned interview, far from confirming an intention to cause death, specifically asserted the contrary. The record of interview adduced at trial contained the following questions and answers:
“Q 132 You told us you struck [the deceased] with an axe. Was the blade facing up or down?
A. Opposite end of the blade not the side used to chop fire wood.
Q 133 Why did you hit him with the opposite end of the axe?
A. I only wanted him to knock him out and I also know if I use the sharp end it cause death.”
[142] Then, a little later in the course of the interview, he said that he had told his mother and father that he had rendered the deceased unconscious and when asked at the end of the interview whether he wished to say anything else he said: “My intention was not to kill [the deceased] only to make him unconscious.”
[143] This assertion by the petitioner that he had specifically used the blunt end of the axe because he did not wish to kill the deceased went to the key issue whether the prosecution had established an intent to kill. Yet it is a remarkable fact that this highly material assertion by the petitioner was not mentioned by the judge either in that part of the summing up which summarised the ingredients of the possible offences or in that part of the summing up which referred to the interview or at all. Whilst it is not incumbent on a trial judge to remind the assessors of all the evidence, it seems to me incumbent on a trial judge to draw attention to evidence which represents the core of an available defence. The fact that the petitioner did not advance lack of intent to kill as his defence, since he was denying any involvement in the killing, is not to the point since it was raised on the evidence. What is more, the judge in his summing up had specifically advised the assessors (and therefore himself) that if the answers in interview were freely made, they were to consider whether the assertions in them were true. That does not mean, of course, that they were to treat the assertions either as all true or all false yet it was surely incumbent on the judge to draw the attention of the assessors to the evidential basis on which the prosecution sought to establish an intention to kill but, at the same time, to such evidence which might suggest an absence of an intention to kill which, in this case, included the petitioner’s assertion during the interview that had he intended to kill, he would have used the sharp end of the axe and, possibly, the medical evidence that the injuries were most possibly caused by a single blow. He did not do so.
[144] Neither do we find any reference at all in the judgment of the trial judge to the assertions by the petitioner in the course of his interview as to lack of intent, as evidenced by his decision to use the blunt rather than the sharp end of the axe and his assertion – implicit by his reference to only causing unconsciousness- that when he left the scene of the attack, he thought the deceased was alive. I note from the judgment, at paragraph 33, that the judge said that: “I further hold that facts in this caution interview statement are truthful,” yet that, on its face, sits uncomfortably with his finding of an intent to kill. He then mentions Question and Answer 132 to which I have referred in the preceding paragraph, but not the exculpatory questions and answers which follow. He says, in relation to Question and Answer 132, that it is a question and answer which is important to consider, but does not say why it is important. He merely follows it by saying that the caution interview statement alone is sufficient to establish all the elements of the charge.
[145] None of this is to suggest that the judge was bound to accept the petitioner’s assertion that he did not intend to kill and it may be said to be implicit in his finding that an intention to kill (recklessness was not the basis of his verdict) was the only reasonable inference to draw, that he rejected the assertion. But this is a murder case, where the difference between murder and manslaughter, in terms of culpability and sentence is significant; and where a trial judge fails to allude at all to a specific contention by a defendant that he did not intend to kill and, indeed, so used his weapon to avoid killing, it is difficult to rest assured that the judge addressed his mind to that contention and to its basis. In any event, the failure to allude to it at all and to analyse it in the light of the medical evidence is in the circumstances material and provides a further basis upon which to conclude that the conviction cannot be allowed to stand. In so saying, I recognise that it is not raised as a ground of appeal but, as I have earlier intimated,[77] where a material omission, not raised by counsel, is obvious to an appellate tribunal, that tribunal should not turn a blind eye. There is too much at stake both in terms of principle and the individual case, to do that.
Care warning
[146] The gravamen of the ground of appeal in this regard is that the trial judge, both in his summing up and in his subsequent judgment, failed to provide a warning or sufficient warning as to the care with which the testimony of Devi should be approached.
[147] In his summing up, the judge, having summarised Devi’s testimony said this:
“42. ... I should give you legal directions to understand who is an accomplice. If a witness is an accomplice it is my duty
to warn you that you should look for independent corroboration of that evidence and it is not safe to convict a person on uncorroborated
testimony of an accomplice. Further it must be evidence which implicates an accused person that is, which confirms in some material
particular not only the evidence that the crime has been committed but also that the accused person committed it. Sunita Devi was
arrested, charged and then given immunity by the prosecution. That does not make her an accomplice. Who is an accomplice? Persons
who are participes criminis (one who has a share in crime: accessory) in respect of the actual crime charged, as principal or accessories before or after the fact
(in felonies).
43. The evidence given by Sunita Devi at the trial clearly places her at the scene of the crime. Is that evidence make you to conclude
that she is a principal or accessory after the fact. Is Sunita Devi’s evidence tainted by an improper motive? There is no evidence
that Sunita Devi took any part in commission of the crime or that she aided or abetted the crime. The mere presence at the scene
does not make a person liable for the crime. However she had failed to report to any person until she called her dad. You have to
consider whether that is possible due to the fact she was de facto partner of the accused at that time and living with the accused’s family.”
[148] We know that the assessors were of the opinion that the appropriate verdict was one of not guilty. Therefore, the reasoning in the judgment which followed is necessarily material. On the question of Devi’s evidence and his approach to it, the judge said:
“13. She cannot be considered as an accomplice. There is no evidence that either she took any part of the crime or she aided or abetted the accused. Therefore there is no need to look for independent corroboration of her evidence. Sunita Devi was arrested, charged and then given immunity by the prosecution. That does not make her an accomplice. However, she had failed to report to any person up to 8.5.2011. Considering the fact that she was with the accused and his family all this time and that she feared the accused will kill her as well this delay is explained.”
[149] The judge appears to have said that because there was no evidence that she took part in the crime or aided or abetted the petitioner, there was no need to look for support for her evidence. But the conclusion that she was not or may not have been an accomplice or an aider and abetter was a conclusion drawn in the light of her evidence so that, in a sense, the judge was putting the cart before the horse. The question was not whether, having heard her evidence, he was satisfied that she was not an aider and abettor but rather whether in approaching her evidence from the outset, there was any basis, other than a fanciful basis, to require that her evidence be approached with caution.
[150] What could not be ignored was the fact that not only had she been arrested on suspicion of this murder but she had also been charged with it. And it is significant to note that that charge followed an interview which she had given to the police. Whilst we do not have a copy of that record of interview – and there is no indication that it was produced in evidence - one must assume that the decision to charge her was based either on that interview or, if not, then on some other material which the police deemed sufficient to warrant a charge. And the matter does not end there. Whilst the charge against her was indeed dropped, she testified under an immunity from prosecution. It follows - at least, in the absence of evidence to the contrary, one must assume as much in the petitioner’s favour - that the immunity protected her from proceedings in respect of conduct by her which was, allegedly, culpable.
[151] I confess that I have not found this particular issue easy, because it arises in an unusual context, namely, where the prosecution does not present a witness as an accomplice and the witness disavows any assertion of complicity and yet the witness testifies under an immunity from prosecution, the background to which immunity is not revealed. What was required, in these unusual circumstances, was a direction by the trial judge to himself, which was nuanced to accord with this unusual setting. He ought, in my judgment, in approaching her evidence, to have recognised that whilst there was no evidence before the court of her conduct on the day of the alleged offence other than her self-exculpatory testimony and the petitioner’s alleged confession, she had been charged with the offence and that that fact combined with an immunity from prosecution might mean that she had an interest of her own to protect and that, accordingly, that fact or that possibility was to be taken into account in determining whether her testimony was or was not reliable. The fact that she had been charged and the fact that she was testifying under an immunity were not matters which in themselves necessarily or inevitably rendered her evidence unreliable but they were factors, together with the background to those factors, which had to be taken into account in deciding whether or not it was, in all the circumstances, safe to rely on her evidence as against the petitioner.
[152] Whilst it is obvious from the summing up that the judge was aware that Devi had been charged with murder and was testifying under immunity, the judgment of the trial judge says in terms that there was no need to look for corroboration and seems thereby to exclude the need to approach her testimony with particular care in the light of that history. It seems to me that such a warning to himself was needed.
[153] I would add only, on this particular subject, that whilst it is said at paragraph [68] above that it was never suggested to Devi at trial by the petitioner’s counsel that Devi was an accomplice, that is not quite correct. Whilst the word “accomplice” was not used an accusation was nevertheless made. The following question and answer are recorded in the transcript or note of the proceedings.
“Q. I put it to you are implicating my client to save yourself?
A. No I am not doing this to save myself.”
[154] The allegation was not then pursued. That was not a satisfactory way to proceed for, if counsel was to make the allegation, it was incumbent upon him to put to the witness the basis for it.
Conclusions
[155] For the reasons I have provided, I would grant the petitioner leave to appeal out of time against the judgment of the Court of Appeal dated 4 October 2018. I would do so on the basis that substantial and grave injustice may otherwise occur and also on the basis that questions of general legal importance are involved, as to which I have in mind the proper application of the rule against hearsay, the need for trial judges to acknowledge and address central defences raised, and the need to tailor care warnings to the circumstances of a particular case. I would treat the hearing of the application for leave as the hearing of the appeal, allow the appeal, set aside the judgment of the Court of Appeal and set aside the petitioner’s conviction for murder rendered by the judgment dated 26 September 2014.
[156] I canvassed with counsel during the hearing of the application for leave to appeal whether this was a case in which it was appropriate to apply the proviso contained in section 23 of the Court of Appeal Act. What I had in mind was the fact that the interview of the petitioner was conducted in the presence of an independent witness, Mr Begg, who noticed nothing untoward. But it was correctly pointed out to me - and this is a matter to which I have referred at paragraph [125] above - that the alleged assault upon the petitioner was said to have taken place not at the police station where the interview was conducted but the previous day at a different police station. It is also relevant, though not decisive of the issue, that this was a case in which the assessors had returned a unanimous opinion of not guilty. I have not, in the circumstances, thought it an appropriate case in which to apply the proviso.
[157] I agree with the order proposed by Marsoof J., namely, that, subject to the discretion, or at the election, of the Director of Public Prosecution, there be a re-trial. I was originally minded to the view that the order for a retrial should not be qualified by any reference to the discretion or election of the Director. However, in the event, I can see why that qualification is appropriate. The (majority) judgment of this Court is that the hearsay evidence was inadmissible; it will remain inadmissible on a retrial. There was a flaw in the first instance judgment in respect of the voluntariness of the confession which therefore, on a retrial, would fall to be addressed anew on a retrial. The reliability of Devi’s evidence may or may not be affected by the circumstances which led to her arrest, charge and immunity in respect of which, importantly for the purpose of the present point, the content of Devi’s cautioned interview is not known to this Court but is no doubt within the Director’s knowledge. Rendering the order as subject to his election should not, in my opinion, be read as an intimation by this Court against a retrial but rather as a recognition that the Director will have a full and up to date picture before him.
[158] I note that Ekanayake J has addressed the question of sentence. In the light of my conclusion as to conviction, it is unnecessary for me to address sentence. I should say, however, that whilst the original notice, dated 23 October 2018, seeks leave to appeal against sentence, I did not understand that application to be pursued. It does not form part of the amended petition seeking leave, and was not the subject of any written or oral submissions before us.
Orders of the Court are:
(by majority decision)
Hon. Mr. Justice Saleem Marsoof
Judge of the Supreme Court
Hon. Ms. Justice Chandra Ekanayake
Judge of the Supreme Court
Hon. Mr. Justice Frank Stock
Judge of the Supreme Court
Solicitors:
Office of the Legal Aid Commission for the Petitioner
Office of the Director of Public Prosecutions for the State
[1] See, Lal v State [2017] FJSC 20; CAV0036-0037 0039.2016 (20 July 2017, paragraph [23]; Tawatatau v State [2018] FJSC 2; CAV008.2017 (26 April 2018), paragraphs [26] and 27; and Dass v State [2018] FJSC 28; CAV0014.2018 (2 November 2018), paragraph [18].
[2] Wong Kam-Ming v The Queen [1980] AC 247 at 261.
[3] Ibrahim v. R [1914] UKPC 16; (1914-15) AER 874 at 877.
[4] Tuilagi v State [2018] FJSC 3; CAV0013.2017 (26 April 2018).
[5] Ibid., at paragraphs [39] and [40], with Anthony Gates, P. and Saleem Marsoof, J. concurring.
[6] State v Mool Chand Lal (1999 Labasa High Court).
[7] R v Sartiori (1961 Crim. L. Rev.397).
[8] Ganga Ram and Shiv Charan v Regina (Criminal Appeal 46 of 1983).
[9] See, paragraphs 117 to 120 of the judgment of Stock J.
[10] Mudaliar v State [2008] FJSC 25; CAV0001.2007 (17 October 2008) paragraph 70.
[11] See, paragraphs 148 to 152 of the judgment of Stock J.
[12] Section 237(2) of the Criminal Procedure Decree of 2009.
[13] Ibid., section 237(4).
[14] See, Section 84 of the Criminal Procedure Ordinance of 1875 and section 299(2) of the Criminal Procedure Code, Chapter 21.
[15] Ram Lal v Regina (Criminal Appeal No 3 of 1958).
[16] Ram Bali v Regina (1960) 7 FLR 80.
[17] Shiu Prasad v Regina (1972) 19 FLR 68 at page 71.
[18] Rokopeta v State [2016] FJSC 33; CAV0009, 0016, 0018, 0019.2016 (26 August 2016) at paragraph 60.
[19] Likunitoga v State [2018] FJSC 26; CAV0005.2018 (1 November 2018) at paragraph 50.
[20] See, section 237(4)(b) of the Criminal Procedure Decree of 2009.
[21] Ram v State [2012] FJSC 12; CAV0001.2011 (9 May 2012) at paragraph 80.
[22] Ram v State, supra.
[23] Ibid., paragraph 85.
[24] See, paragraphs 126 to 135 of the judgment of Stock J.
[25] See, paragraphs 138 to 145 of the judgment of Stock J.
[26] Section 23(1) of the Court of Appeal Act, Cap 12 (1978 Ed).
[27] Ratnam v Kumarswamy 1964) 3 All.ER 933 at 935.
[28] R. v Albert Sunderland [1927] 28 SR (NSW) 26.
[29] Kamlesh Kumar v State Criminal Appeal No. CAV 001.2009.
[30] Mohammed Sahid v State, CAV 0025.2015 (21/4/16) at paragraph 14.
[31] Kumar v. The State; Sinu v. The State CAV0001/09, CAV0001/10 21st August 2012.
[32] Gallo v Dawson [1990] HCA 30; (1990) ALR 479 at pages 480 to 481.
[33] Hughes v National Trustees Executors & Agency Co of Australasia Ltd. [1978] VicRp 27; [1978] VR 257 at 262.
[34] Avery v No 2 Public Service Appeal Board, [1973] 2 NZLR 86, at 92.
[35] Jess v Scott [1986] FCA 365; [1986] 70 ALR 185 (1986) 12 FCR 187 at 194 to 195.
[36] see Burns v Grigg, [19R 871 at 872.
[37] Mitchelson v Mitchelson, (1979) 24 ALR 522 at 524.sup>[38] Vilenius v Heinegar, (1962) 36 ) 36 ALJR 200 at 201.
[39] Rasaku v The State [2013] FJSC 4; CAV0009, 0013.2009 (24 April 2013)
[40] Alfaaz v State [2018] FJCA 19,A 19, AAU0030 (8 March 2018).
[41] Raj v State, CAV0003 of 2014: 20 August 2014 [2014] FJSC 12.
[42] Varasiko Tuwai v State [2016] FJSC 35
[43] Lalagavesi v State [2012] FJSC 25; CAV 0004.2012 (24 October 2012).
[44] Davies v DPP [1954] AC 378; [1954] 1 All ER 507.
[45] ibid.,
[46] Mudaliar v State, [2007] FJCA 16; AAU0032.2006 (23 March 2007).
[47] Ram Bali v Reginam (1960) 7 FLR 80 at 83
[48] Shiu Prasad v Reginam (1972) 18 FLR 70 at 73.
[49] Setevano v State [1991] FJA 3 at 5.
[50] Ram v State [2012] FJC 12; CAV 0001 (9 May 2012).
[51] Aminiasi Katonivualiku v State (2003) FJSC Crim. App. No. CAV 0001/1999 (17th April 2003).
[52] Livia Lila Matalulu and Anor v The Director of Public Prosecutions, [2003] FJSC 2; [2003] 4 LRC 712 (17 April 2003).
[53] Dip Chand v State, CAV 004 of 2010 (9th May 2012).
[54] Nacani Timo v. State CAV 0022 of 2018 – 30/8/2019.
[55] State vs. Lepani Temo HAC 60/11, [2012] FJHC 1130; HAC60.2011 (30 May 2012).
[56] State vs. Rokete, 2014] FJHC 114: HAC 084 of 2009 (4/3/2014).
[57] Nilesh Chand HAC 345 of 2013(Labasa).
[58] Natini v State AAU102 of 2010 : 3.12.2015 [2015] FJCA 15447.
[59] At paragraph [40] above.
[60] At paragraph [46] above.
[61] At paragraph [78] above.
[62] At paragraph [43] above.
[63] (1964) 3 All ER 933, cited at paragraph [41] above.
[64] at 934.
[65] at 935.
[66] at 935.
[67] [1927] NSWStRp 78; [1927] 28 SR (NSW) 26, cited at paragraph [42] above.
[68] At page 28.
[69] [1990] HCA 30; (1990) ALR 479, cited at paragraph [45] above.
[70] Cited at paragraph [47] above.
[71] At [30] of the judgment in Rasaku.
[72] Kamalesh Kumar v State [2012] FJSC 17.
[73] See however paragraphs [126] and [127] below.
[74] R v Coll (1889) 25 L.R. Ir 522 at 541.
[75] See Court of Appeal judgment at paragraph [26].
[76] See paragraphs [129] above.
[77] Paragraph [135] above.
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