Deo v State [1990] FJCA 5; AAU0010u.88s (18 May 1990)

Fiji Islands - Baram Deo v The State - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

CRIMINAL APPEAL NO. 10 OF 1988
(High Court (Labasa) Criminal Case No. 2/88)

BETWEEN:

BARAM DEO
S/O SUKHU
Appellant

AND:

STATE
Respondent

Mr M.A. Khan for the Appellant
Ms Nash Nashat Shameem with Mr J. Prakash for the Respondent

Date of Hearing: 28.2.90
Delivery of Judgment: 18.5.90

JUDGMENT OF THE COURT

This is an appeal against conviction and sentence on 4 counts of murder contrary to Section 199(1) of the Penal Code and one count of grievous harm contrary to Section 227 of the Penal Code.

The appellant was sentenced to life imprisonment by the High Court sitting in Labasa in respect each of the murder count and 5 years imprisonment for the offence of doing grievous harm for which he was originally charged with attempted murder.

The facts of this case and the circumstances which gave rise to the charges being laid against the appellant may be briefly stated as follows:-

The appellant and his wife Uma Wati used to live at Vatudua, Labasa with their 4 children - 1 son and 3 daughters all under 10 years of age. On 9.10.87 Uma Wati's brother Vinod Lal came to visit the family. He and the appellant Baram Deo went to town in the afternoon to buy groceries. They returned home at 2.30 p.m. with a half bottle of rum and some other items. They started drinking at about 6 p.m. They consumed about half the bottle of the liquor together. Later the children had their dinner and went to sleep in the same room as the appellant and Vinod Lal were drinking and eating chicken curry as chasers. Later Vinod Lal declined to eat and went off to sleep. Uma Wati then went to sleep too. The appellant continued drinking from the same small bottle. The appellant's contention is that he was drunk and he got uncontrollably angry when his wife refused to dish out food to him and when he asked her to leave the house she told him that the house and everything in it belonged to her. He then poured kerosene from a 4-gallon drum on the floor of the house which had only one exit. He also sprinkled some methylated spirit. Vinod Lal felt wet and got up, tried to snatch the drum from the appellant and then ran outside. Uma Wati whom he had asked to go out, also tried to stop the appellant. In the meantime the appellant set the house on fire by lighting a match with the children asleep and Uma Wati still in the house. Her clothes caught fire and she ran out to the neighbour's house. In the process she got badly burnt on various parts of the body which necessitated her confinement to hospital for about 5 weeks. All 4 children of the appellant perished in the fire. After setting fire to the house the appellant walked away from the scene. He went to the police station and reported setting fire to the house and gave his reasons for doing so in a cautioned statement. In the police station he tried to commit suicide by electrocuting himself. He was charged with 4 counts of murder - one count in respect of each child and 1 count of attempted murder of his wife.

When the appellant appeared before the High Court in Labasa on 8 August 1988 to face these charges he told the court that his lawyer Mr V. Parmanandam had not turned up. The hearing was adjourned till later in the session and the Registry staff was ordered to seek a lawyer for the appellant. It is now well known that every effort to get a lawyer to act for the appellant was made but without success. On 2nd October 1988 the trial was fixed for 31.10.88. The accused conducted his own defence during the trial apparently with considerable skill. He cross-examined prosecution witnesses in great detail highlighting differences, conflicts and omissions. He did not deny setting fire to his home but maintained that he did not intend to kill his children or his wife. He raised the defence of intoxication, provocation and absence of malice aforethought. In his 21-page summing-up the learned trial judge directed the 3 gentlemen assessors on all relevant aspects of the law involved and after pointing out the salient features clearly left the questions of fact to be decided by them.

The first two assessors expressed the opinion that the appellant was guilty as charged on all 5 counts. The third assessor was of the opinion that the appellant was not guilty of murder but guilty of manslaughter in respect of counts 1 to 4 and not guilty of attempted murder of his wife in respect of the 5th count but guilty only of causing her grievous harm. The learned trial judge accepted the majority opinion in respect of the murder charges and convicted the appellant accordingly. He agreed with the opinion of the 3rd assessor on the 5th count and convicted the appellant accordingly.

The appellant filed several grounds of appeal in person. The main thrust of his complaint was that he was denied natural justice as no counsel would represent him, that malice aforethought was not proved, that what he did was done when he was angry and drunk and therefore not of sound mind. He claimed there was no intention to commit the crime and he should have been convicted of the lesser offence of manslaughter only. He therefore asked for a retrial.

At the hearing of this appeal the appellant was represented by Mr M.A. Khan who obtained this Court's leave to argue consolidated grounds of appeal which he had filed earlier. In the course of his submissions he withdrew a number of grounds of appeal, some of which he agreed were repetitious or overlapping, and some, he conceded, dealt with the findings of fact against which he could advance no cogent reasons. In the result the only complaints which requires consideration are those contained in grounds (b), (f) and (n). These read as follows:

"(b) That the Learned Trial Judge erred in Law and in facts in not sufficiently directing the Assessors on the issue of -

(1) Intoxication

(2) Provocation

(3) Malice aforethought (argued in conjunction with the issue of standard of proof).

(4)Accused's mental state of mind and on any defences of sanity.

(f) That the Learned Trial Judge erred in Law and in facts in improperly directing the Assessors on the burden of proof which rests on the Prosecution throughout the trial.

(n) That the Learned Trial Judge erred in Law and in facts in imposing Life Sentence penalty for counts 1 to 4 and 5 years for count 5 which is too harsh and excessive in law in view of the circumstances of the case."

re: ground (b) (1) - "Intoxication"

Mr M.A. Khan the learned counsel for the appellant agreed that the learned judge's direction on intoxication was correct in law but submitted that he ought to have stressed the effect of extra liquor consumed by the appellant after Vinod Lal went to sleep.

Our examination of the summing-up at pages 159-160 clearly indicates that the learned judge specifically dealt with the fact that the appellant continued drinking after Vinod Lal went to sleep. He states as follows:

"Let me remind of the evidence of Uma Wati, Vinod Lal and the accused as to the drinking. Uma Wati said that between the accused and Vinod Lal they drank half the contents of the bottle and they stopped drinking before the liquor was finished. Then to the accused in cross-examination she admitted that when only a few nips was left in the bottle the accused asked her to serve their meals which she did and then went and lay down to sleep.

Vinod Lal confirmed that he stopped drinking when about 1/2 the contents of the bottle was left and at that stage he was full from eating the chicken curry and had gone off to sleep and although he denied that he was drunk, subsequent observers said he appeared drunk.

The accused in his sworn evidence stated and I quote:

"When my brother in law and I had consumed almost three-quarter of the contents of the bottle my brother-in-law went to sleep and I continued to drink the left-over 1/4 of the contents and when a little bit of liquor remained in the bottle I asked my wife to get out my food."

Therefore at most the accused would have drunk three-quarters of the contents of the 1/2 bottle of rum diluted with water over a period of about 1 hour and during that time he was eating curry chicken.

You will recall that earlier in the day when he returned from town he had lunch and you will remember that all the prosecution witnesses (including Apenisa Saruta and D/Ins. Amrit Lal) who were asked, consistently and firmly denied that the accused was drunk even though they admitted smelling alcohol on his breath.

Do you consider that the quantity of alcohol diluted, drunk by the accused over that period of time and in those circumstances would be sufficient to render the accused so drunk as to not know what he was doing? or incapable of forming an intention to kill or cause grievous harm?

And then consider also the actions of the accused before, during and after the lighting of the fire when he claimed he was drunk, in particular, in coming to the conclusion to burn his house and then in fetching the drum of kerosene and opening the cap, in getting and pouring the bottle of spirit and in getting the matches and striking it and throwing it in the house and then telling everyone he met thereafter that he had burnt his house.

Are those the actions and statements of a man who was so drunk that he didn't know what he was doing? The accused himself admitted that he knew what he was doing but that is a matter entirely for you to decide gentlemen assessors with your vast and collective experience."

The learned trial judge very fairly drew attention not only to the fact that the appellant continued drinking after Vinod Lal went off to sleep but also to the fact that "only few nips were left in the bottle" when the appellant asked his wife to serve his meal. He then very properly left the question as to the extent of drunkenness and its effect as questions of fact for the assessors to decide.

We note that in cross-examination (page 117 of the Court Record) the appellant said that although he was drunk and annoyed he knew what he was doing. Furthermore he remembered with clarity what he had done and did not appear to be drunk to witnesses.

The summing-up on evidence relating to drunkenness was in our view adequate and fair. Consequently this ground of appeal must fail.

re: ground (b) (2) - "Provocation"

Here again Mr M.A. Khan did not point out to us in what way the learned trial judge had misdirected the assessors on any point of law relating to the defence of provocation. He however submitted that the impact of refusal to serve food to the appellant by the wife when he was in a state of intoxication ought to have been stressed to the assessors.

Before we deal with the point raised by Mr M.A. Khan let us say at the outset that we have examined the learned trial judge's direction on the law relating to provocation as found in

Sections 203 and 204 of our Penal Code. In our opinion he adequately and properly explained and paraphrased these provisions insofar as relevant to this case for the benefit of the assessors. In view of what we intend to say later it will be useful to first quote the trial judge's summing-up on provocation:

"Provocation gentlemen assessors is not a complete defence to murder by that I mean that it does not excuse or absolve the crime altogether as would self-defence. It merely reduces murder to manslaughter.

In our law provocation arises when the act causing death is done in the heat of passion caused by sudden provocation and before there is time for such passion to cool. It is said to consist mainly of 3 things:-

(a) the act of provocation;

(b) the loss of self control both actual and reasonable; and

(c) retaliation proportionate to the provocation.

Furthermore gentlemen assessors "provocation" is defined in our law as any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self control and induce him to commit an assault of the kind which the accused committed upon the person by whom the insult is offered.

You will note from the definition that the assault must be committed upon the person by whom the insult is offered.

However if you consider that the accused might have been insulted by wife's refusal to dish out his meal coupled with her insulting remarks that he serve himself if he wanted to eat and that the house and its contents were all hers and he could leave if he wished then you may accept that there was an act of provocation.

Remember however that the accused's wife Uma Wati vehemently denied refusing to serve the accused his meal or indeed uttering any of the remarks he attributed to her and like the accused you have seen and heard her give evidence and been subjected to extensive cross-examination. Now if you believe Uma Wati and don't believe the accused on this point where is the provocation?

But if you believe the accused or even believe that there was reasonable possibility that he was insulted by Uma Wati then was that an insult of such a nature as to be likely when done to an ordinary person to cause him to lose his self control and do what the accused did?

In considering this second question you should take into account everything that was said by the accused's wife according to the effect which, in your opinion, it would have on an ordinary person having the powers of self control to be expected of an ordinary sober person of the same sex, age, educational level and rural background of the accused.

Remember the accused said he was under the influence of drink and was extra annoyed and very much provoked by what was said to him by his wife and he became so angered that he lost control and came to the conclusion that if the house is not his then he would set it on fire.

Now do you consider that a man who can arrive at such a seemingly logical conclusion and then take steps to carry it out is one who is acting in the heat of passion as one would expect of a person who had truly been provoked or was the accused in complete control of himself and was merely acting out a conclusion he had rationally come to?

Well that is a matter entirely for you gentlemen assessors to consider remembering that the accused need not prove that he was provoked, and remember also to give the accused the benefit of any reasonable doubt you may have in this matter."

The first point to note is that and as rightly pointed by the judge the provocation must be to "an ordinary person". The first paragraph of Section 204 of the Penal Code reads as follows:

"The term "provocation" means, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered."

But an ordinary person in Section 204 is not a drunk as rightly pointed out by Ms N. Shameem the learned counsel for the Respondent (see McCarthy (1954) 7 Cr. App. R. 331; Newell (1980) 71 Cr. App. R. 331). The appellant's transistory state of drunkenness brought about by self-induced intoxication cannot be treated as some peculiar characteristic possessed by the appellant leading to weakening of his powers of self control. In short an ordinary person is a sober person; if a defendant is provoked in circumstances where an ordinary or reasonable sober man would not have been provoked he cannot avail himself of the defence. (See observations of Lord Simon in D.P.P. v. Camplin [1978] UKHL 2; (1978) 67 Cr. App. R. 14; Archbold [43rd Ed.] Vol. 2, Chap. 20, para. 33, p. 1941).

The trial judge did refer to the appellant's claim that he was under the influence of drink when the alleged insult was offered to him but he was under no obligation to explain the impact of liquor when the alleged insult was offered to him. On the contrary the judge rightly advised the assessors when he told them:

"One cannot expect any special treatment gentlemen because one voluntarily consumes liquor and does things one wouldn't otherwise do, or become less able to control one's temper." [Page 159 of the Record.]

The judge was correct when he advised the assessors "to take into account everything that was said by the accused's wife according to the effect which, in your opinion, it would have on any ordinary sober person, sex, age, educational level and rural background of the accused".

There is therefore no merit in the complaint that the judge failed to explain the impact of liquor when dealing with provocation. This ground of appeal must fail.

The second point we wish to draw attention to is that according to the definition of provocation in the Penal Code paraphrased by the judge the assault must be upon the person by whom the insult is offered. After pointing out to the assessors that there was no insult offered by the accused's children he nevertheless left the question of provocation to be decided by the assessors and advised them to find the appellant not guilty of murder but guilty of manslaughter if they thought he was acting under provocation or if they entertained any reasonable doubt on the matter.

It could be argued that the trial judge would have been justified in not leaving the issue of provocation to the assessors on the ground that no provocation had emanated for the appellant's children either by words or conduct, bearing in mind that provocation is only relevant to the issue of guilt on murder charges only. (See ARCHBOLD [43rd Ed.] 20-28 at page 1939.) In England the common law rule that provocation on a charge of murder was restricted to the acts of the victim has been amended by section 3 of the Homicide Act 1957; and now acts or words amounting to provocation are not to be excluded for consideration because they emanate from some persons other than the victim. See R. v. Davies 60 Crim. App. R. 253. However no such amendment has been made to Section 204 of our Penal Code which defines provocation and which has been in existence in its amended form since 1960.

The third point we wish to draw attention to is the desirability of not treating the relationship between the provocation and the retaliation as a distinct and separate third requirement. In this respect we can do no better than respectfully adopt the advice given by the English Court of Appeal in R. v. Brown (1972) 56 Crim. App. R. 564. The headnotes which encapsulates the advice is as follows:

"In directing a jury on the issue of provocation, it is desirable that the jury should be asked first to consider whether the defendant was in fact provoked and, secondly, whether the provocation was such as might have provoked a reasonable man to act as the defendant did. The relationship between the provocation and the retaliation should not be put before the jury as a separate and distinct third requirement, but the jury should be instructed to consider the relationship of the defendant's acts to the provocation when asking themselves the question: was the provocation enough to make a reasonable man act as the defendant did?

It is better that a summing-up, should not use the precise words of Viscount Simon L.C. in MANCINI v. D.P.P. (1941) 28 Cr. App. R. 65 at p. 74; [1942] A.C. 1 at p. 9: "the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter," unless it is made clear that these words do not amount to a rule of law which the jury are bound to follow.

LEE CHUNG-CHUEN v. R. [1963] A.C. 220, WALKER (1968) 53 Cr. App. R. 195 and PHILLIPS v. R. (1968) 53 Cr. App. R. 132 considered."

Although the caution given in R. v. Brown (above) was based on the provisions of section 3 of the Homicide Act, 1957 nevertheless in our view the rationale behind the caution applies as much in assessor trials in Fiji when provocation is an issue. (See also observations of Lord Diplock in D.P.P. v. Camplin [1978] UKHL 2; 67 Cr. App. R. 14.)

re: ground (b) (3) - "Malice Aforethought and Standard of Proof"

Under this head Mr M.A. Khan argued that "the trial judge erred in law and in facts in not sufficiently directing the assessors on the question of malice aforethought and the intention on the part of the appellant to kill or attempt to kill had to be established beyond all reasonable doubt......"

Section 202 of the Penal Code defines "malice aforethought" as follows:

"Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:-

(a) an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not;

(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused." [Amended by Ordinance 6 of 1959, s. 6.]

We have examined the Court Record and note that the learned trial judge had at pages 152, 153, 157 and 158 explained the meaning of the term "malice aforethought" exactly along the lines of Section 202 of the Penal Code.

In our opinion the directions on malice aforethought and intention were adequate and correct and so we do not find it necessary to quote the relevant parts of the summing-up especially in the absence of any indication as to where the learned judge might have gone wrong. Be that as it may, in our view there was ample evidence to show that the appellant knew and ought to have known but was indifferent to the fact at his own choosing that in setting the house on fire in the determined manner he did, death or at the very least grievous bodily harm would probably result to his four children who he knew were asleep in the house at the time.

We now turn to the question of standard of proof. Right at the beginning of his summing-up the trial judge told the assessors that they had to decide where the truth lies "bearing in mind that that the onus rests always on the prosecution to prove its case beyond a reasonable doubt....." [Page 149 of the Court Record.]

When dealing with the murder charges he said:

"To establish this charge the prosecution must prove to your satisfaction beyond any reasonable doubt, 3 essential ingredients:

First that the accused caused the death of his four named children;

Second that he did so by an unlawful act or unlawful omission; and

Thirdly that in causing the death of the children his unlawful act or omission was accompanied by malice aforethought."

We note that at page 153 he said that the prosecution 'must prove' and at page 157 he used the word "if ......'you are sure'". When dealing with attempted murder (at page 165) he told the assessors that "the prosecution must prove beyond a reasonable doubt that at the time the accused...... he intended to kill her".

And again at page 167 he reminded the assessors that "it is the prosecution that must prove every ingredient beyond a reasonable doubt" and then he concluded his summing-up at page 168 by repeating the direction that "the prosecution always bears the burden of proving accused's guilt beyond a reasonable doubt".

As to standard of proof and burden of proof we respectfully adopt as correct and applicable to assessor trials in Fiji also, the views expressed in ARCHBOLD [43rd Ed.] Chap. 4-425 at page 578:

"The judge must always direct the jury upon the burden and standard of proof in relation to the charge(s) upon which the accused is being tried. No formula has to be followed slavishly, but two points must be made and made clearly:

(i) The burden of proof is upon the prosecution - it is for the prosecution to establish the defendant's guilt;

(ii) before the jury can convict they must be satisfied to the extent that they feel sure (or satisfied beyond a reasonable doubt) of the defendant's guilt.

A typical direction upon the topic would be as follows:

"The prosecution makes this allegation of crime and it is therefore for the prosecution to prove it - that burden, or obligation, remains on the prosecution throughout the case. Before you are entitled to convict, the prosecution must have proved the defendant's guilt beyond any reasonable doubt. If guilt has been proved to that extent, then, and only then, will it be your duty to convict. Unless you are sure of guilt beyond any reasonable doubt, it will be your duty to acquit."

ARCHBOLD's views are based on numerous and well-known judicial precedents and we do not find it necessary to quote them. Suffice to say that the learned trial judge's directions on standard of proof as well as the burden of proof were impeccable and in conformity with legal precedents.

Consequently both limbs of this ground of appeal must stand dismissed as being without any merit.

re: ground (b) (4) - "Accused State of Mind and on any Defence of Insanity"

It is Mr M.A. Khan's contention that the learned trial judge ought to have referred the appellant for psychiatric examination as to his mental condition. He submitted that the appellant's behaviour was abnormal and he cited the instance of the appellant trying to electrocute himself as being in point.

Section 11 of our Penal Code states that every person is presumed to be of sound mind and to have been of sound mind at any time which comes into question, until the contrary is proved. And as to defence of insanity Section 12 reads as follows:

"A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or knowing that he ought not to do the act or make the omission.

But a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission."

Ms N. Shameem rightly submitted that the burden of proving insanity rests on the defence and the standard is on a balance of probabilities.

See (i) R. v. Oliver Smith (1911) 6 Cr. App. R. 20.
(ii) R. v. Carr-Brient (1943) 29 Cr. App. R. 76.

Although the appellant was not represented by counsel at his trial he very ably conducted his defence, raising such legal issues as provocation, intoxication and absence of malice aforesaid. We have already referred to his skilful cross-examination of prosecution witnesses. At no time did he indicate to the trial judge that at the time of the incident he suffered from some mental disease or infirmity rendering him incapable of understanding what he was doing or omitting to do. Nor would the totality of the evidence support such a view. The thrust of the appellant's defence was that he never intended to kill his wife and children, that there was no malice aforethought and that he temporarily lost self-control by reason of provocation offered at a time when he was under the influence of liquor. In short insanity at the material time was never an issue before the trial judge.

Although in exceptional circumstances the trial judge could himself raise the issue of insanity, in our view the evidence before him in the case did not warrant the adoption of such a course. There was therefore no need for the trial judge to obtain a psychiatrist's report on the appellant. This ground of appeal must therefore also fail.

re: Sentence

Insofar as sentence on the murder counts are concerned the appeal against sentence is misconceived because life imprisonment is a mandatory punishment prescribed by law. Section 200 of the Penal Code lays down that - 'Any person convicted of murder shall be sentenced to imprisonment for life' (underlining ours). Neither the trial judge nor this appellate court has any discretion in the matter.

As regards the sentence of 5 years imprisonment imposed on the appellant for the offence of Causing Grievous Harm to his wife this punishment cannot be regarded as either wrong in principle or manifestly excessive bearing in mind the trial judge's observation that "she was lucky to be alive". In practical terms this sentence does not add to any punishment that the appellant is to undergo by reason of the mandatory sentence of life imprisonment for the offences of murder. Nevertheless having regard to the provisions of Section 28(4) of the Penal Code and for the avoidance of any doubt we order that all the sentences are to run concurrently.

Conclusion

As the appellant was not represented in the court below we felt it prudent to examine the whole of the evidence tendered in the trial. We have had no hesitation in concluding that the learned trial judge was amply justified in accepting the majority opinion in respect of counts 1 to 4 and the minority opinion in respect of count 5 which opinion was favourable to the appellant.

The appeal is dismissed.

Sir Timoci Tuivaga
President

Sir Ronald Kermode
Judge of Appeal

Sir Moti Tikaram
Judge of Appeal

AAU0010U.88S