Hassan v Reginam [1978] FJCA 18; Criminal Appeal 57 of 1977 (28 July 1978)

IN THE FIJI COURT OF APPEAL

CRIMINAL JURISDICTION

Criminal Appeal No. 57 of 1977

BETWEEN:

1. ALI HASSAN s/o Abdul Rahiman

2. RANJIT SINGH s/o Ram Singh

3. RAVINDRA SINGH s/o Santa Singh
Appellants

AND:

REGINAM
Respondent

Dr. M.S. Sahu Khan and Mr. S.D. Sahu Khan for Appellants.
Mr. A. Gates for the Respondent

Date of Hearing: 11th July, 1978
Date of Judgment: 28th July, 1978

JUDGMENT OF THE COURT

SPRING. J.A.

These are appeals against convictions for murder entered in the Supreme Court of Fiji at Lautoka on 29th September, 1977. The three appellants were jointly charged with murder and the trial took place before a 'judge and five assessors. At the conclusion of the trial the five assessors expressed the opinion that all three appellants were guilty of murder; one assessor added a recommendation to mercy.

The trial judge accepted the unanimous opinion of the assessors convicted each appellant of murder, and sentenced each appellant to life imprisonment.

The facts may be shortly stated.

The three appellants Ali Hassan aged 24 years, Ranjit Singh aged 19 years and Ravindra Singh (also known as Mindo) aged 21 years lived at Wainivoce, Tavua. The deceased, Kamla Prasad aged 15 years lived nearby; the deceased was also known as Bobbiya.

On 28th February 1977 between 10.30 a.m. and 11 a.m. the body of Kamla Prasad was found at the Wainivoce creek, .which was described by Detective Sergeant Subramani as an isolated area; the nearest house being about 20 chains distant. According to the medical report produced at the trial the deceased had suffered multiple injuries to the head consistent with being caused by a blunt object. The body was found in the creek, but it was established that the deceased had not drowned death was due to severe head injuries. Kamla Prasad was last seen alive on Friday 25th February 1977 in the vicinity of Nazir Mohammed's Store at Wainivoce.

The substance of the Crown case was that the three appellants agreed that Ali Hassan would kill Kamla Prasad. There was evidence that Ram Singh, the father of Ranjit Singh one of the appellants, offered $200 to Ali Passan if he killed Kamla Prasad. In or about June 1976 Kamla Prasad had assaulted Shanti Devi, Ram Singh's daughter.

The Crown led evidence that Ali Hassan enticed the deceased away from Nazir Mohammed's Store on the night of 25th February 1977 between 9 p.m. and 9.30 p.m. upon the pretext that they would drink some liquor near a bus shelter. In accordance with the pre-arranged plan of the three appellants, Ali Hassan accompanied Kamla Prasad to a position close to a creek where he struck Kamla Prasad about the head with a stone killing him; Ranjit Singh and Ravindra Singh, the other appellants thereupon took the body of the deceased away by horse back and threw it into the Wainivoce creek.

Sarwan Singh, a sirdar, gave evidence that on the night of the 25th February 1977 at about 10 p.m. or a little thereafter he was returning from Nazir Mohammed's Store when he saw Ranjit Singh and Ravindra Singh with two horses at the Wainivoce creek. He flashed his torch on them and he recognised them as they had been members of his cane gang in 1976. He called out to Mindo, - Ravindra. Singh - but received no reply. Sarwan Singh said that they turned their faces away when he shone his torch on them.

The Crown case rested largely upon confessions made by the three appellants to police officers: their admissibility was attacked, but after a lengthy trial within a trial the confessions were admitted by the learned trial judge as being voluntary.

The appellants gave evidence on oath denying that they had made confessions and they called witnesses who stated that the appellants were elsewhere at the time the crime was committed.

Mr. M.S. Sahu Khan, appeared for all three appellants and submitted 9 grounds of appeal which are set out hereunder. At the hearing grounds 5 and 8 were abandoned.

"1. THAT the learned Trial Judge erred in law and in fact in admitting the alleged confessions and interview statements of the appellants in as much as:-

(a) The accused wore cross-examined by the Police whilst in custody;

(b) There was no evidence of confrontation;

(c) There was oppression and unfairness in the questioning of the Appellants;

(d) There was no corroboration and in any event the Learned Trial Judge did not direct himself on this issue of corroboration;

(e) The learned Trial Judge failed to exercise his discretion to exclude the alleged statements;

(f) The learned Trial Judge did not consider and/or adequately consider whether the prosecution had proved that all the impropriety alleged had been disproved inasmuch as the onus was on the prosecution to satisfy Court that no impropriety had occurred;

(g) There was breach of the Judges Rule;

(h) The alleged statements were not voluntary.

2. THAT the learned Trial Judge erred in law and in fact in not considering and/or adequately considering the evidence in respect of each Appellant separately and ruling made thereon both in the trial within the trial and the trial proper.

3. THAT the learned Trial Judge did not adequately and/or properly direct and/or misdirected the gentlemen assessors and himself on the question of onus and burden of proof inasmuch as:-

(a) No proper direction and/or adequate direction was given as to the question of the benefit of any doubt in the assessment of evidence was to be given to the appellants;

(b) There was misdirection when the learned Trial Judge directed that the gentleman assessors had to consider as to whether the prosecution witnesses were to be believed or the defence witnesses

(c) By the use of the expression "think" in the summing up the general directions as to the burden and onus of proof was modified;

(d) The Learned Trial Judge erred in law and in fact when he stated "It is not true incidentally that you need a higher degree of proof in a murder trial than you do in any other trial".

(e) The learned Trial Judge erred in law and in fact when he stated; "If you can say, "Well, I am quite sure that it was All Hassan who killed Kamla Prasad or Bobbiya and I am quite sure that Ranjit Singh and Ravindra Singh took the body away, I am quite sure they were the people", that would probably be the proof that you require".

4. THAT the learned Trial Judge erred in law and in fact in not adequately and/or properly directing the gentleman assessors and himself on the issue of parties to an offence.

5. Abandoned.

6. THAT the learned Trial Judge erred in law and in fact in allowing the learned prosecutor in the presence of the gentlemen assessors to make statement regarding certain admissions allegedly made by the Appellants to one Babu Ram

7. THAT the learned Trial Judge erred in law and in fact in disallowing the cross examination of the prosecution witness Subramani as regards the allegation of the confrontation of other witnesses in view of the evidence of those witnesses.

8. Abandoned.

9. THAT the verdict and finding are unreason-able and cannot be supported having regard to the evidence as a whole particularly inasmuch as:-

(a) The evidence did not disclose that the three Appellants were guilty of murder.

(b) There was no corroborative evidence of the alleged confessions of the Appellants.

(c) The evidence against the Appellants was not enough to substantiate the crime."

We turn now to a consideration of the first and second grounds of appeal.

Counsel for the appellants at the trial within a trial challenged the admissibility of the confession made by each appellant and the charge statements upon the grounds that they had not been affirmatively proved by the prosecution to have been freely, and voluntarily, made. Ali Hassan, alleged that he had been physically assaulted by the police, cross examined while in custody, subjected to oppressive and harrassing questioning and treated unfairly: and that there had been breaches of the Judges' Rules. Detective Sergeant Subramani gave evidence at the trial within a trial that at 6.40 p.m. on 28th February 1977, at the Tavua Police Station, he interviewed Ali Hassan who denied any knowledge of the murder; he stated that after he left Nazir Mohammed's Store on Friday night 25th February 1977 he went home and stayed there; had a meal, and went to sleep at about 10 p.m.

All Hassan gave evidence that in the early hours of the morning on the 1st March 1977 at the Tavua Police Station he was assaulted by the police: he said he complained to his solicitor, and as a result he was later examined at the hospital: but no evidence concerning the last two events was tendered to the court.

On 5th March 1977 Detective Sergeant Subramani and other police officers interviewed Ali Hassan at the bus shelter sometime after 2 p, m, According to the police he was cautioned in accordance with Judges' Rule No. 2 and after having been confronted with Sharda Prasad, Yusuf and Waisake he confessed that he killed Kamla Prasad: he signed the Sergeant's notebook in which the interview was recorded. Detective Sergeant Subramani and Inspector Krishna Swamy (who had been present throughout) signed the notebook.

The confession made by Ali Hassan reads.

"a. This boy was very troublesome. Ram Singh of Banga told me to finish him. Last Monday, I met him and we had some discussion. He said he will give $200 to kill Bobbia by any means. He gave me $20 that day and said he will give $200 after I had killed him.

q. Then what happened?

a. Then on Friday the 25th I met Mindo and Ranjit on the road at about 3.30. We made a plan and they told me to finish him and they will do the rest. Then during the night of Friday, we were drinking yaqona at the shop. I lied about drinking liquor during that private discussion; he agreed. Mindo and Ranjit said that they would wait by the creek near the bus shelter. Then I told Bobbia to meet me near the bus shelter. When I met him there I took him by the creek with an excuse for drinking liquor. I lifted a stone and hit him, when he fell down. I hit him and left him there. Mindo and Ranjt told me to run away. I ran away home from there.

q. How many times did you strike him?

a. I struck at him 2 or 3 times.

q. Can you take us and show the place?

a. Yes, let's go by the creek.

q. Do you know where they threw the body?

a. I do not know. I struck him and ran away home, the body was found near Jai Govind's house, I do not know the place.

q. Has Ram Singh given you the whole money?

a. Ranjit and Mindo came today and told me to go someday and collect the money.

q. What happened to the $20 that Ram Singh gave you?

a. I paid some money to the shopkeeper last Monday, I spent the rest."

Ali Hassan led the police to the scene of the murder which was about 170 paces from the bus shelter, showed them a stone which the police said was either the one, or similar to the one, used to kill Kamla Prasad. Ali Hassan was then arrested for murder and taken back to the bus shelter at about 6.00 p.m. where Constable Chinappa charged the appellant with the murder of Kamla Prasad and cautioned him (Judges' Rule No. III): the appellant Ali Hassan then signed the charge statement in four places; it was duly witnessed by Constable Chinappa and Corporal Kumaran Nair who had been present. The appellant Ali Hassan said (inter alia) in his charge statement:

"Ram Singh gave $200 to me and told me to kill Babia because he held his daughter and assaulted her. On Friday I met Babia in shop I told him lies to go and drink liquor when he came near the river I hit him with the stone on his head he fell down. Mindo and Ranjeet took him away on horse back I ran away home from there".

Later that evening about 7.15 p.m. Ali Hassan was taken to the Tavua Police Station- he was medically examined by a Dr. Raj. Evidence was given by a Justice of the Peace, Babu Ram in the trial within the trial, that he interviewed Ali Hassan and was informed by him that he had no complaints to make as to ill treatment by the Police.

Ali Hassan gave evidence that he went to the bus shelter with the police officers where he was questioned; he noticed Sergeant Subramani making notes in his notebook, but was not aware of the details thereof. We said he went along the stream to urinate and the police went with him• they had a friendly discussion about fishing and swimming, but he did not point out the scene of any crime. He said he did not sign the Sergeant's notebook at the bus shelter, nor was he charged there. After the interview he says he was taken to the Police Station at Tavua and physically and violently assaulted by the police and forced to sign the notebook. Later he was asked to sign a document for a police officer which he later found to be a charge statement charging him with murder. He says he was never charged with murder and didn't find out he was so charged until informed by the police some time later. He claimed that the police had fabricated the confession in the notebook; and that he did not read nor know the contents of the charge statement.

Detective Sergeant Subramani interviewed Ranjit Singh at the Tavua Police Station on 1st March 1977 at 12.05 a.m. and Ravindra Singh at 12.36 a.m. on the same morning. Roth denied any knowledge of the affair and both claimed that they were at their respective homes on Friday night 25th February 1977 and did not go out that evening.

On the 5th March 1977 Detective Sergeant Subramani and some police officers went to Ram Singh's house at about 9.26p.m and brought Ranjit Singh and Ravindra Singh together with Ram Singh to the Tavua Police Station at about 10.20 p.m.

Ranjit Singh was cautioned by Sergeant Santa Prasad (Judges' Rules II) and questioned. He made a confession to Sergeant Prasad as follows:-

"a. Yes Sir. Ali Hassan met me below Sahadut's house on Friday. Mindo said "call Bobia by the creek tonight".

q. Then what happened?

a. Then we went home.

q. Then what happened?

a. Then I and Mindo came by the creek in the night.

q. Then what happened?

a. All Hassan brought Bobia. Ali Hassan hit Bobia on the head with a stone and Bobia fell down.

q. Then what happened?

a. Mindo lifted Bobia and placed him on a horse and we took him and placed him on the other side of Jai Govind's field.

q. What did All Hassan do?

a. Ali Hassan had hit and ran away from there. I have come today to inform him to collect the money.

q. What reason was there to hit him?

a. Bobia assaulted my sister and had also warned that he was going to assault her again.

He was then arrested. The Sergeant read over the notes he had made in his notebook of the interview and Ranjit Singh signed the notebook on each page which was duly witnessed by Sergeant Prasad and Police superintendent Bas Deo Maharaj. The interview finished at 12.29 a.m. on 6th March 1977. Constable Chinappa charged Ranjit Singh with murder, cautioned him under Judges' Rules III. The appellant said -

"I have given my statement to the police today".

Ranjit Singh signed the charge statement as did Constable Chinappa and Corporal Kumaran Nair who had been present at the interview.

Ravindra Singh was interviewed by Detective Sergeant Subramani at the Tavua Police Station; he was cautioned under Judges' Rules II and questioned and confronted with two police witnesses Kalivati and Luke. He made a confession as follows.

"a. You see, I have not planned. Ali Hassan and Ranjit planned this. I only work for Ram Singh and live at his place. If Ali Hassan has said that then I also say that they planned. Ram Singh told Ali Hassan to kill and he would pay him $200. And he said that would give him some land.

q. Then what happened?

a. That night Ranjit called me away and we went by the river. Ali Hassan called Kamla and he killed him. I only helped Ranjit in carrying the body by the creek and throwing it there.

q. This means that Sarwan Singh met you people by the creek?

a. Yes he met us.

q. Did you people go to Ali Hassan's house today?

a. Yes we went and Ranjit went and told him to come and collect the money sometime. Then we went to Bhagwan Singh's house to cut firewood. We again went to Sarwan Singh's house. We could not meet him again then we returned home. I am telling the truth. It is up to you people now. "

Detective Sergeant Subramani then read back the questions and answers and Ravindra Singh signed by putting his left thumb print on the notes. We did not wish to make any alterations to the recorded interview which was also signed by Detective Sergeant Subramani and Inspector Krishna Swamy. The interview started at 10.23p.m and finished at 12.16 a.m.

Constable Chinappa then charged Ravindra Singh with murder and administered the caution (Judges' Rule III). The charge statement was signed by the appellant - it read -

"I have given all my statement to Sergeant Mani today".

The charge statement was signed by Constable Chinappa and Corporal Kumaran Nair.

Both of these appellants Ranjit Singh and Ravindra Singh claimed that the police asked them to be Crown witnesses against Ali Hassan and as a result of this inducement they signed the respective notebooks in which their separate interviews had been recorded; although they claimed they did not know what was recorded therein. They alleged that the police then violently assaulted them. They signed the charge statement because Constable Chinappa asked them to do so; they claimed they did not know what was in the statement or with what offence they were charged.

The evidence given by the three appellants on the voir dire was disbelieved by the trial judge and, with respect, we agree with his finding. It would be stretching credulity to the limit if one was to believe Ranjit Singh and Ravindra Singh that after they agreed to the Police overtures to become Crown witnesses the police then physically assaulted them. Further, we believe that the assessors would have great difficulty in believing Ali Hassan's statement that for some time after his arrest he did not know with what crime he had been charged. It is to be noted that All Hassan had had a passing acquaintance with the law as a witness in a cattle stealing prosecution.

The trial judge in his ruling on a "trial within a trial" said:-

"...I deal briefly with the second leg of the arguments by saying that the accused did not impress me as being witnesses of truth. I believe the police witnesses when they say that each of the accused was cautioned before the interrogation began and again before the charge statements were taken and I believe them when they say that the accused persons were not assaulted. Further I am satisfied that Yusuf and Luke were both called to confront Ali Hassan. I believe the police witnesses when they say that no inducement was held out to the second and third accused and I do not believe the second and third accused..."

The trial judge did not believe the appellants. He made a clear finding of fact that he believed the police and that the confessions made by the appellants were voluntary. In Director of Public Prosecutions v. Ping Lin (1975) 3 All ER 175 Lord Hiailsham at p. 182 said:

"I cannot myself help regarding the issue as basically one of fact. The trial judge should approach his task by applying the test enunciated by Lord Sumner in a common sense way to all the facts in the case in their context much as a jury would approach it if the task had fallen to them. In the light of all the facts in their context, he should ask himself this question, and no other: 'Have the prosecution proved that the contested statement was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority or (where it is relevant, as is not the case on appeal here) by oppression?"

On full consideration, therefore, we can find no valid reason to differ from the ruling of the trial judge on his findings of fact.

We turn now to consider the other matters urged upon us by counsel for the appellants independently of the alleged physical assaults, violence and inducement. We refer to the submissions that the appellants were subjected to oppression and unfairness in questioning and confronted by police witnesses; that there were breaches of the Judges' Rules; and that the trial judge should have exercised his discretion to exclude the confessional statements.

In the case of all three appellants there was lengthy cross examination, and the trial judge found that they were in custody at that time. From the record according to evidence given by the police officers it appears, that in the case Ali Hassan, he was on friendly terms with the Police Officers while being questioned at the bus shelter. During this interview yaqona was served and on 3 or 4 occasions Ali Hassan served the police officers. Ali Hassan took the policemen to the scene of the murder: this visit and interview lasted nearly 4 hours. The interrogation of Ranjit Singh at the Tavua Police Station occupied just under 2 hours and Ravindra Singh was questioned for a similar period of time. During this time it appears that Ram Singh the father of Ranjit Singh was also at the Police Station.

The criticism directed at the police is that their interrogation constituted oppression. The word oppression appeared for the first time in the Judges' Rules of 1964 (UK) (which were adopted in Fiji in 1967).

Sachs J. in R. v. Priestley (1965) 51 Cr. App. R 1 said:-

'......to my mind, this word in the context of the principles under consideration imports something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary......Whether or not there is oppression in an individual case depends upon many elements. I am not going into all of them. They include such things as the length of time of any individual period of questioning, the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not, and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of a tough character and an experienced man of the world'.

We note that the trial judge in his ruling on this issue said:-

"...All three accused gave evidence in Court and were subjected to a long cross-examination. I accept the definition of oppression given by Sachs J. in R. v. Priestley [1943] CthArbRp 567; (1965) 51 CAR 1 as importing "Something which tends to sap and has sapped that free will which must exist before a confession is voluntary." The manner in which the accused persons gave evidence in this Court did not lead me to think that the will of any of them might have been sapped by the police questioning. I reject the suggestion of oppression."

As Lord Hailsham said (Supra) the whole question is "basically one of fact".

In our opinion, the trial judge was in the best position to study the demeanour and characteristics of the appellants when they gave evidence in the trial within a trial. This observation would assist the trial judge in assessing the question whether the prosecution had disproved that there was any oppression or unfairness in the questioning by the Police.

It is essentially a matter of fact to be decided by the trial judge as Lord Hailsham said in Ping Lin (Supra).

"The real question is whether the judge was entitled in law to come to the conclusion of fact in the context of all the facts as found by him on consideration of the whole of the evidence before him".

It is apparent from the record that the ascertainment of the truth was an important issue to Detective Sergeant Subramani, but it has to be remembered that the police were concerned to ascertain the truth, as they were engaged in a task vital to the public interest the detection of crime.

Street C.J. said in R. v. Lee [1950] HCA 25; (1950) 82 CLR 133 at 155.

"But it is in the interest of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence".

We believe that although there was cross-examining in questioning, it was, on the facts of the case appropriate to the inquiry on which the police were engaged. Counsel quoted other decisions where various forms of questioning and interrogation had taken place, but we believe nothing is to be gained by quoting other decisions-it is essentially a matter of fact in each case and cases vary one from another. In R. v. Jeffries [1946] NSWStRp 54; (1946) 47 SR (NSW) 284 at p. 312 Street J. said

"It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him".

Accordingly, remembering that each case must depend upon its own circumstances considered in their entirety, we see no reason to depart from the ruling of the trial judge who was satisfied that the prosecution had proved that there was no oppression unfair questioning or impropriety which would rob the confessional statements of their voluntariness.

Turning now to the criticism that there were breaches of the Judges' Rules. The trial judge found that the appellants were in custody at the time they made their confessional statements, and it was submitted that as the Police had committed a breach of Rule III of the Judges' Rules the statements were inadmissible. It has been held that the non-observance of the Judges' Rules may, and at times does, lead to the exclusion of an alleged confession; but ultimately all turns on the trial judge's decision as to whether, breach or no breach, it has been shown by the prosecution to be voluntary. (See R. v. Collier; R. v. Stenning (1965) 3 All ER 136) and R. v. Ovenell (1968) 1 All ER 933 at p.938.

The principles to be applied where a statement has been obtained in breach of the Judges' Rule are conveniently summarised in R. v. Convery [1967] NZCA 37; (1968) NZLR 426 at p. 438.

"The Court, in deciding whether a statement has been so unfairly obtained as to result in its rejection in the exercise of the Judge's discretion, does not narrowly inquire whether the Judges' Rules, or any of them, technically construed, have been broken in the course of the inquiry under review; but rather whether the course of the inquiry, as proved in evidence, makes it unjust that the statements should be received."

The trial judge in his ruling on the voir dire said:-

"I have carefully considered each of the defence submissions in relation to alleged breaches of the Judges' Rules, but while there were breaches, none of them was of sufficient moment to militate against the voluntary nature of the statements or cause me to exclude the statements which will accordingly, all be admitted as voluntary."

Having considered the whole of the evidence and remembering that "a statement need not be spontaneous or volunteered to be voluntary" we are satisfied that the trial judge exercised his discretion correctly in admitting the statements as voluntary statements.

We are further satisfied that his action in so doing did not lead to any miscarriage of justice.

On the "confrontation" issue the trial judge found that Ali Hassan had been confronted with two police witnesses we are satisfied that the witnesses were brought before the appellants Ali Hassan and Ravindra Singh to let them know what was being said about them. The trial judge stated in his ruling on the voir dire that he disbelieved the three appellants, but believed the police witnesses. He made a clear finding that the police witnesses were truthful; that the charge statements were given in the manner and at the times and places deposed to by the police he also found that the statements were voluntary statements.

Accordingly, we conclude on the evidence that the trial judge exercised his discretion correctly in admitting the confessions and the charge statements.

Ground 1(d): Counsel for the appellants contends that a confession by an accused person should not be held sufficient in itself to justify a conviction for murder without corroboration in some material particular, and, that no such corroboration was furnished in this present case on appeal. It is well established law that a man may be convicted, even of murder, solely upon his confession R. v. Sykes (1913) 8 Cr. App. R.233. McKay v. The King [1935] HCA 70; (1935) 54 CLR 1.

It has been stated in this Court that it is customary to look for some evidence of surrounding circumstances which are consistent with the confession. Such evidence need not be corroboration in the strict sense of the term, but merely evidence of facts which are not inconsistent with those set out in the confessional statements. In this case there was the medical report which stated that death was due to severe head injuries consistent with being caused by a blunt object. Nothing stated in the medical report was inconsistent with these injuries having been caused by a stone.

Evidence was given before the assessors by Mohammed Yusuf that on the evening of 25th February 1977 he overheard a private conversation between Ali Hassan and the deceased Kamla Prasad at Nazir Mohammed's Shop, when Ali Hassan suggested that he and Kamla. Prasad should drink some liquor that night at the bus shelter.

Further, Isoa Moses gave evidence before the assessors that he knew Ali Hassan and Ram Singh and saw them together in Ram Singh's white car at Wainivoce not long before the death of Kamla Prasad.

Further, Sarwan Singh confirmed he saw Ranjit Singh and Ravindra Singh on the night of the murder in the Wainivoce creek at about 10 p.m. or shortly thereafter. They both had horses with them.

Sharda Prasad, a brother of the deceased, gave evidence that the deceased had been involved in some trouble with Shanti "Devi.

The above facts are consistent with the confessions.

We are satisfied on the evidence that the trial judge was correct in his finding that the confessions were true.

In his judgment the trial judge said -

"The Court is also satisfied that each of the confessions is true".

In the result this ground of appeal fails.

In Ground 2 it is alleged that the trial judge did not direct the assessors as to the separate or individual complicity of each appellant in the events that happened on the night of the 25th February 1977. Mr. Sahu Khan submitted that the trial judge had dealt with the three appellants together and quoted a passage from the summing up in which the trial judge said:

"And here again if the prosecution "satisfied you that Ali Hassan hit "Kamla Prasad with a stone to cause "his death and that Ranjit Singh and Ravindra Singh helped him they will "all be guilty of murder".

It is clear that here the trial judge is dealing with the matter on the basis that there was a plan to kill because he immediately goes on and says:-

"The prosecution case as I say is that these three accused agreed to kill him and they got him to the bus shelter and near there Ali Hassan the first accused hit him with a stone and the second and third accused put the body on a horse and took it and put it in or near the Wainivoce creek".

The trial judge explained to the assessors that there was a plan to kill Kamla Prasad and that the prosecution case rested largely on the confessions. The trial judge then proceeded to deal with the individual and separate confessions of each appellant in considerable detail pointing out to the assessors that the authenticity of the confessions had been challenged by the appellants and that it was for than the assessors, to decide the truth of the confessions, In so doing, however, he warned them that a confession tendered in evidence is only evidence against the maker thereof and no one else.

We quote from his summing up.

"....You have got to look at those confessions and consider whether they are true. Now, in this connection you must be very careful to bear in mind that these confessions were not given on oath and therefore what is in them is evidence only against the person who makes it. It is not evidence against anybody else. Just remember that.

Even if you are satisfied that these confessions were made before you can give your opinion that the accused are guilty of murder you have to be satisfied that the confessions are true. "

The trial judge detailed the part played by each appellant in the killing of Kamla Prasad: he told them that each appellant denied making a confession to the police and that they, the assessors, must be satisfied not only that each appellants made his own separate confession but also that it was true before the assessors, could act upon it. In the case of Ali Hassan he said "Well are you satisfied that Ali Hassan's confession is true".

The trial judge then dealt with the oral confession made by Ranjit Singh and read to the assessors the relevant portions thereof. He then said -

"Now bear in mind as I have already told you that nothing he has said about Ali Hassan or Mindo I is any evidence against them at all. Anything he has said is evidence against himself only".

The trial judge turned to consider the oral confession made by Ravindra Singh in which he said that on the night of the murder he went with Ranjit by the river where Ali Hassan brought Kamla and killed him. He said he helped Ranjit carry the deceased's body and throw it away. He admitted that on the same night Sarwan Singh met both Ranjit and himself by the creek.

Now the trial judge after detailing Ravindra's complicity in the murder said -

"Again I must tell you that what this man says is evidence only against himself as an admission and not evidence against Ranjit and Ali Hassan. Because it is not on oath".

The trial judge in conclusion said:-

"...Now if you are satisfied after considering all those things that what each accused has said in his confession about his part in the death of Bobbiya is true then you will give your opinion that each is guilty of murder, If you are not satisfied or if you think there is a doubt about the matter you will give your opinion that each is not guilty of murder."

In our opinion the trial judge directed the assessors correctly, pointing out on no less than four occasions that the individual confessions were only admissible as evidence against the person making the confession and no one else.

Accordingly the first and second grounds of appeal fail in their entirety.

Ground 3 criticises the summing up and we now consider this ground.

Mr. Sahu Khan submitted that apart from two passages in the summing up - one near the beginning and the other at the end - the assessors were told that the issue for them to determine was whether they believed the prosecution witnesses or whether they believed the accused and their witnesses No direction, (apart from the two passages mentioned) it was claimed, was given directing the assessors that if they entertained any doubt as to the truth of any of the evidence the benefit should be given to the accused. Counsel for appellant pointed out several passages in the summing up where the learned trial judge in the course of his lengthy summary of the evidence directed the assessors that they had to determine who was telling the truth, and ascertain where the truth lay. Mr. Sahu Khan submitted that it was incumbent upon the trial judge to expressly direct the assessors that if they were left in doubt as to who was telling the truth, or if they were unable to determine where the truth lay, the accused should be acquitted.

We agree that if a correct direction as to onus of proof, is followed later in the summing up by the type of direction, complained of by Mr. Sahu Khan, it is necessary to scrutinize the summing up carefully to ensure that the further directions do not obscure or overlay the correct general direction as to onus of proof. This is necessary so as to ensure that there is no possible confusion in the assessors' minds.

In every case, the summing up must be read as a whole to ascertain whether, "at the end of the day", the assessors clearly understood their function in relation to onus of proof.

In so doing, however, the summing up is not to be microscopically analysed in order to find some expression or phrase used or some treatment of the evidence by the trial judge upon which to found an appeal against conviction. It would be a rare occurence that a summing up does not have some imperfections. The function of this Court is not to consider whether some phrase or another phrase was the better one to use; nor should we interfere simply because the choice of language used lacks exactitude of expression; nor tether greater stress or less stress should have been put on particular parts of the evidence. We are required to look at and examine the summing up as a whole, and determine whether the trial judge has put the issues which fell for determination fairly before the assessors; whether all the evidence was before them and whether the trial judge has correctly and adequately directed the assessors as to where the burden of proof lay. As Lord Tucker said in Bullard v. R. (1957) AC 635 at p. 645 "But there is no magic formula and provided that on a reading of the summing up as a whole the jury are left in no doubt where the onus lies no complaint can properly be made".

Turning now to the summing up, which consists of some 25 foolscap pages, we examine the passages to which exception is taken. The trial judge said -

"You form an independent and impartial opinion as to what you consider is the truth of the matters you have heard about. In reaching your conclusions you must consider all the evidence including the evidence given by the accused and on their behalf."

Complaint was also made in respect of another passage when the trial judge said:-

"You make up your minds by deciding whether you believe the evidence of the witnesses whose evidence you have heard including of course the defence witnesses."

Mr. Sahu Khan criticised both these passages on the basis that there was no direction from the trial judge that in the event of the assessors being unable to decide who was telling the truth the appellants should receive the benefit of any doubt.

Reading the summing up as a whole we can see nothing objectionable in either of these passages in view of the fact that very shortly thereafter the trial judge directed the assessors as to the general burden or onus of proof in a criminal trial as follows:-

"...... In a criminal case the onus or burden of proof is always on the prosecution. That is to say the accused person never has to prove anything - the prosecution has to prove everything, and you can only express the opinion that these accused persons are guilty when you have satisfied yourselves that the case has been proved to you beyond reasonable doubt. It is never a question of the prosecution adducing evidence which merely raises an element of suspicion against the accused persons. They may bring forward evidence which leads you to think that the accused might have done it but this is not sufficient. They have to prove the charge beyond reasonable doubt."

Counsel for the appellants claimed that the trial judge in discussing the charge statements made by the accused modified the onus of proof when he said -

"They (the appellants) say that they did not any of them know what is in the police statements, that they did not realise that they were being charged with murder and the first thing you have to decide is whether you think the police fabricated those statements."

Again, we cannot see any merit in counsel's submission; it is wrong to isolate one passage and analyse it without relating it to the context in which it appears. Because, it so happens that the trial judge immediately followed up the passage complained of by saying that the burden of proof was on the prosecution when he said -

"You must remember that the burden of proof of these things is on the prosecution. They have to prove that the accused made the statements."

Mr. Sahu Khan then referred to several passages in the judgment where the trial judge stated that the assessors had to make up their minds, whether they believed the police, or whether they believed the accused; we refer to one passage where the trial judge said:

"Here again what you really have to consider is whether you think the Police Officers made up these statements or whether the accused made up their evidences."

In one sense, it is true, that it was the function of the assessors to, ascertain where the truth lay, but we agree that in a strict use of language this is not a full statement of the assessors' function - which is of course to determine upon the whole of the evidence, the guilt or otherwise of the accused beyond reasonable doubt. If nothing further had been said in the summing up about the onus of proof then a statement such as the one last quoted could well amount to a misdirection.

It is to be noted, however, that shortly after this last quoted passage the trial judge said -

"Even if you are satisfied that these confessions were made, before you can give your opinion that the accused are guilty of murder you have to be satisfied that the confessions are true."

In concluding his summing up the learned trial judge said:-

"As I have said you have to consider whether the mechanics of the thing make it possible and of course the burden of proof of all this is in the prosecution. Now if you are satisfied after considering all those things that what each accused has said in his confession about his part in the death of Bobbiya is true, then you will give your opinion that each is guilty of murder. If you are not satisfied or if you think there is a doubt about the matter you will give your opinion that each is not guilty of murder".

Ground 3(c): Defence counsel submitted that by the excessive use of the words "you may think" in the summing up the trial judge could, in the minds of the assessors, modify the general directions as to the burden of proof; thereby causing confusion or misleading them as to their proper function on onus of proof. We agree that excessive use of the word "think" in a summing up should be avoided.

However reading the summing up at a whole and bearing in mind the complete and correct directions given by the trial judge on the burden of proof, and, that during his summing up he told the assessors "You must be satisfied" on several other separate occasions, we are satisfied that the assessors would not be confused or misled.

Accordingly, while we deprecate the use of the word "think", in the manner in which it was used in the directions given to the assessors, on reading the slimming up as a whole, we are satisfied that the general directions and instructions given by the trial judge on the burden of proof were not thereby modified. We have kept carefully in mind the decision of this Court in Khushi Ram & Gurdayal Singh v. Reginam (FCA Cr. App. 20/1977) but in the instant case after carefully analysing the whole of the summing up and the passages referred to by Mr. Sahu Khan, and considering his submissions, we are satisfied that there was no danger of the assessors being under any misunderstanding as to what their function was in relation to the onus of proof. The passages in the summing up to which defence counsel referred, do not, in our opinion, when the summing up as a whole is read, so obscure, overlay or modify the plain directions given as to the burden of proof as to vitiate the summing up.

Accordingly, we reject these grounds of appeal numbers 3(a), 3(c) and 3(e).

Ground 3(d): Counsel for appellant further submitted that the trial judge had misdirected the assessors when he said in the course of his summing up "It is not true incidentally that you need a higher degree of proof in a murder trial than you do in any other trial." The trial judge had just directed the assessors as to the standard of proof in a criminal case when he said it was necessary for the prosecution "to prove the charge beyond reasonable doubt......The degree of proof is the same in every case it is beyond a reasonable doubt." Defence counsel relied on a statement in Bater v. Bater (1950) 2 All ER 458 at p. 459 where Denning L.J. said:

In criminal cases the charge must be proved beyond reasonable doubt but there may be degrees of proof within that standard".

We are of the opinion that the standard of proof in a criminal trial is exactly what the trial judge told the assessors - viz - proof beyond reasonable doubt. Whether the charge be a murder charge, or any other charge in the criminal calendar, the standard of proof is the same - namely proof beyond reasonable doubt -and this is precisely what the trial judge told them. While not agreeing or disagreeing with the statement by Denning L.J. in Bater's case (supra) we are of the opinion that the trial judge could well have confused the assessors if he had embarked on a discussion of degrees of proof. We believe that assessors in this country understand what is meant by proof beyond reasonable doubt.

Accordingly, we reject this ground of appeal.

Ground 3(e): The trial judge is discussing the standard of proof required in a criminal case alluded to the words "reasonable doubt". The trial judge endeavoured to tell them what "reasonable doubt" meant when he said -

"The degree of proof is the same in every case it is beyond a reasonable doubt. But the doubt must be a "reasonable one and perhaps the best way I can put it to you is to say to you that if at the end of the trial and after you have heard all the evidence and considered it and thought about it if you can say well I am quite sure that it was All Hassan who killed Kamla Prasad or Bobbiya and I am quite sure that Ranjit Singh and Ravindra Singh took the body away. I am quite sure they were the people. That would probably be the proof that you require."

On this occasion the trial judge was endeavouring to explain to the assessors the meaning of the words "reasonable doubt". He was telling them that before they could arrive at a verdict of guilty they had to hear the whole of the evidence, and, at the end of the trial, they had to "be sure" or "feel sure" on the whole of the evidence as to the guilt of the accused before they could safely return a verdict of guilty. The sentence objected to by counsel must be read in the context in which it appeared, and, when this is done it is obvious no misdirection occurred.

Accordingly this ground of appeal fails.

Ground 4: Defence counsel submitted that the part played by Ranjit Singh and Ravindra Singh on the night of 25th February 1977 consisted merely in the removal of Kamla Prasad's body, and its subsequent disposal in the Wainivoce creek, and that they should not be convicted of murder. He maintained that if Ali Hassan killed Kamla Prasad neither Ranjit Gingh nor Ravindra Singh should be convicted of murder.

The learned trial fudge put the case for the Crown on the basis that Ali Hassan killed Kamla Prasad, and that Ranjit Singh and Ravindra Singh aided and abetted him by "helping" him, in that, they removed the body of Kamla Prasad and disposed of it in the Wainivoce creek. There was evidence, if accepted by the assessors that a plan had been agreed to by the three accused to kill Kamla Prasad. In many cases aiding and abetting in a crime is done by the mutual consent of the criminals; but is not essential that this should be so. All that is necessary is to prove that the accused persons aided and abetted the principal actor and that they appreciated what was going on, and did something to further it.

The trial judge told the assessors -

"And here again if the prosecution satisfies you that Ali Hassan hit Kamla Prasad with a stone to cause his death and that Ranjit Singh and Ravindra Singh helped him then they will all be guilty of murder. The prosecution case is that these three accused agreed to kill Kamla Prasad and perhaps it will be more convenient if I call him Bobbiya because that is what he had been called throughout this trial. The prosecution case as I say is that these three accused agreed to kill him and they got him to the bus shelter and near there Ali Hassan the first accused hit him with a stone and the second and third accused put the body on a horse and took it and put it in or near the Wainivoce creek

The trial judge then went on and read to the assessors Section 21 of the Penal Code. Section 21(1)(b) thereof reads -

" When an offence is committed each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it, that is to say............(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence."

The law as to whether a person aids and abets another in the commission of a crime is succinctly stated by Hawkins J. in R. v. Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534 at 537.

To constitute an aider and abetter some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting: it may be intentional or unintentional; a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arrange that a criminal offence shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding, and betting."

We examine now the evidence to ascertain if there was proof from which the assessors could on the evidence, reasonably conclude, or draw the inference, that Ranjit Singh and Ravindra Singh aided and abetted Ali Hassan in the killing of Kamla Prasad, Ali Hassan in his confession to Detective Sergeant Subramani acknowledged that he was promised $200 by Ram Singh to kill Bobbiya; further he admitted that "we made a plan" to kill Bobbiya or as he says "to finish him". While his confession is not evidence against Mindo and Ranjit Singh, he says he planned with them to kill Kamla Prasad.

There was in our view ample evidence before the assessors upon which they could conclude that Ali Hassan killed Kamla Prasad with a stone near the Wainivoce creek: the medical report produced at the trial is not inconsistent with the evidence that a stone was used to kill Kamla Prasad. The report stated

"Bruised areas on both sides over temperoparietal area, occipital and frontal area. Multiple crushed type fracture involving "right temporal parietal occipital and left "temperal parietal and occipital bone The injuries noted are consistent with being caused by a blunt object."

Ranjit Singh in his confession to Sergeant Santa Prasad said "Ali Hassan brought Bobbiya and that Ali Hassan hit Bobbiya on the head with a stone and Bobbiya fell down". From this statement the assessors could, in our opinion, quite properly draw the inference that Ranjit Singh was present when (1) Ali Hassan used a stone to kill Bobbiya, (2), when Bobbiya fell down and (3) when All Hassan ran away. The assessors could quite reasonably conclude, on the evidence, that Ranjit Singh acquired this knowledge as a result of being present and seeing what happened when the crime was committed and took no step or steps to dissociate himself from the commission of the crime. Further Ranjit Singh was aware that some money was payable to All Hassan as he said "I have come today to inform him to collect the money" which, in our view, the assessors would be entitled to say was indicative of a pre-arranged plan to kill Kamla Prasad.

Ravindra Singh in his confession to Detective Sergeant Subramani denied that he had planned with Ali Hassan and Ranjit Singh to kill Kamla Prasad. The assessors would, in our opinion, be quite justified in drawing the inference, however, from his confession that Ravindra Singh was aware of the pre-arranged plan to kill. He stated that Ram Singh had offered Ali Hassan $200 to kill Bobbiya; Ravindra Singh accompanied Ranjit Singh on the night of the murder to the place where Ali Hassan killed Kamla Prasad. In our opinion the substance of a confession may very well indicate knowledge on the part of an accused person of matters of which he could not possibly be aware except as a participant in the crime charged, and on the evidence the assessors could, in our view, reasonably have so concluded.

Further. Ravindra Singh was seen together with Ranjit Singh on the night of the murder. Sarwan Singh said in evidence.

"Q. And Mr. Singh, this river that you have to cross, is that the Wainivoce creek?

A. Yes, sir.

Q. And on the way home from the shop, do you remember meeting anybody?

A. Yes, sir.

Q. Whom did you meet?

A. It was Ravindra Singh and Ranjit Singh,"

The sum total of this evidence could well have convinced the assessors that Ravindra Singh was aware of the plan to kill Kamla Prasad and that he actively associated himself with the crime by going to the scene with Ranjit Singh and helping to carry away and dispose of the deceased's body.

Further, the assessors had sufficient evidence to conclude that Ranjit Singh and Ravindra Singh were both aware that money was to be paid to Ali Hassan if he killed Kamla Prasad; that neither of them took any step to dissociate himself from the attack on Kamla Prasad; that they were either present at the scene of the crime, or in very close proximity, such presence being deliberate; and that by their presence at the scene, or in close proximity, they wilfully encouraged Ali Hassan in the killing of Kamla Prasad. They removed Kamla Prasad's body and threw it in the creek thereby causing it to be less likely that the police would trace the offender with the result that Ali Hassan might avoid detection.

Accordingly, we are of the opinion that there was ample evidence for the assessors to conclude that Ranjit Singh and Ravindra Singh aided and abetted the commission of the crime of murder by Ali Hassan. The trial judge was obviously of this opinion as he made a clear finding in his judgment that the three appellants were involved in the murder of Kamla Prasad when he said "The Court is also satisfied that the murder was planned".

Ground 6: During the trial within a trial a Justice of the Peace Babu Ram was called by the prosecution and deposed that the appellant Ali Hassan had no complaints to make as to the manner in which he was treated by the Police.

Babu Ram's appearance as a witness followed a ruling by the trial judge that it was permissible for the Justice of the Peace to give evidence within these limits.

In the trial proper, prosecution counsel when cross examining Ali Hassan asked "Did you not tell Babu Ram that you had made a voluntary......................... "At this point defence counsel raised an objection to the questioning proceeding along these lines. A discussion took place between opposing counsel in front of the assessors.

The trial judge ruled that what was said to Babu Ram was not relevant and refused to allow the prosecutor to proceed - with his line of cross examination. In our view the trial judge acted quite properly in ruling as he did. Prosecuting counsel should not have attempted to embark on the line of cross examination he was proposing. Defence counsel at the stage that he raised the objection could have asked that the assessors retire while the matter was argued before the trial judge: however he saw fit not to do so.

We are satisfied that no injustice or prejudice was occasioned to the appellant Ali Hassan as a result of the discussion before the assessors, and, accordingly we reject this ground of appeal.

Ground 7: We have considered this ground of appeal and examined the record. Luke Vauvau gave evidence before the assessors. His evidence on the point whether he saw Ranjit Singh and Ravindra Singh together with Ali Hassan on the afternoon of 25th February 1977 was at the best equivocal. In examination in chief, Luke Vauvau said Ranjit Singh and Ravindra Singh arrived on horse back at about 4 or 5 o'clock at his place of work; Luke went on and said "Yes I saw Hassan come down and meet them while they were on their way back." In cross examination Luke Vauvau denied seeing the three appellants together.

The assessors heard his examination in chief and cross examination. 'Defence counsel wished to cross examine Detective Sergeant Subramani as to 'the evidence Subramani had given relating to his interview with Luke Vauvau. Objection was taken by prosecuting counsel that the Sergeant should not be asked to comment on what Luke Vauvau had told him. The trial judge ruled that the questioning was not permissible.

In our opinion as Luke Vauvau had given evidence before the assessors we cannot see that the ruling of the trial judge was wrong. In any event we are satisfied no injustice to the appellants arose therefrom.

Accordingly we reject this ground of appeal.

Ground 9: There remains the general ground that the verdict was unreasonable and cannot be supported having regard to the evidence.

In our opinion there was sufficient evidence which if accepted by the learned trial judge and the assessors - and it was so accepted - inevitably led to the conclusion that the appellants were each guilty of murder.

For the above reasons we dismiss the appeals of all three appellants.

(Sgd.) T. Gould
Vice-President

(Sgd.) T. Henry
Judge of Appeal

(Sgd.) B.C. Spring
Judge of Appeal