Kumar v State [1993] FJCA 34; AAU0005u.92s (9 November 1993)

Fiji Islands - Rajend Kumar v The State No. 2 - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 5 OF 1992
(High Court Criminal Case No. 13 of 1992)

BETWEEN:

RAJEND KUMAR
APPELLANT

AND:

STATE
RESPONDENT

Mr. John Semisi for the Appellant
Mr. Ian Ian Wikramanayake for the Respondent

Date of Hearing: 26th April, 1993
Date of Delivery of Judgment: 9th November, 1993

JUDGMENT OF THE COURT

Following the delivery of our earlier Judgment in this appeal, and the request made to the trial Judge to make certain findings of fact, we have now received His Lordships findings. These establish the background against which the sentence imposed on the appellant must be considered.

His Lordships findings of fact have been supplied to counsel and they have been given the opportunity to make further submissions, but both have declined to do so.

Before proceeding to a final consideration of this appeal we return briefly to the matters of procedure which we set out in our earlier Judgment. We there discussed the procedure which is followed on a preliminary hearing prior to committal for trial or sentence and we referred to the alternative ways in which depositions may be taken. These are either by a hearing before a Magistrate at which there is the right of cross-examination, or by the presentation of written statements (sometimes referred to as a paper preliminary inquiry).

While it is obvious that a hearing gives the accused person the opportunity to challenge any of the prosecution evidence which is presented at that stage, we did not refer expressly to the corresponding position upon a paper preliminary inquiry. We now do so.

Section 255 of the Criminal Procedure Code provides that there may be an order for committal on the basis of written statements unless:

"(a) the defendant or one of the defendants is not represented by a barrister and solicitor;

(b) a barrister and solicitor for the defendant or one of the defendants, as the case may be, has requested the court to consider a submission that the statements disclose insufficient evidence to put that defendant on trial for the offence."

It is apparent, therefore, that a defendant has the opportunity to challenge any of the evidence contained in the written statements. If this has not been done then we consider the trial Judge is entitled upon a plea of guilty to take into account the contents of the written statements. We should add that if, following committal, the Judge indicates his intention to rely upon any part of the written statements which the defendant then wishes to challenge then, notwithstanding the prior failure to raise the matter, we would expect the Judge to give an opportunity for counsel to be heard, and, if necessary, for evidence to be taken in order that the matter in dispute could be resolved.

Such a procedure has now been followed at our request by the trial Judge.

We return now to the present appeal.

As we have previously recorded, the death of the deceased was caused by the appellant when the two of them met in a hotel room, and after they had engaged in sexual intercourse. It can now be added that there was on this occasion an attempt made by the appellant to strangle the deceased by the use of a bootlace which the appellant had taken with him. He then stabbed the deceased with a small kitchen knife which he had also taken with him. Following the death of the deceased the appellant took some ortherine which he had previously mixed. He left in the room a note, which has been described as a "suicide note" and which he had written the previous night. In his statement to the Police the appellant said that it was when he discovered the deceased had previously had sexual intercourse that he decided to kill her.

These were the facts known to the Judge at the time of sentencing, and since confirmed by him after receiving the earlier Judgment of this Court and as the result of his taking evidence on these matters.

In view of the situation now disclosed it is very difficult for us to understand how the Director of Public Prosecutions could have felt it a proper case in which to apply for the withdrawal of the murder charge and the substitution of a charge of manslaughter. That application was, however, made and agreed to by the Judge and, as we have previously said, it is not now open to this Court to interfere with the decision which was then made. We think we should add that, while having regard to the constitutional and traditional role of the DPP in this country as the arbiter in matters of prosecution, that role must at all times be subject to the jurisdiction and review of the Courts, and can in no sense oust that jurisdiction. It was, of course, for that reason that the DPP sought the leave of the Judge for the substitution of the charges. We are not, of course, referring to the DPP's statutory power to enter a nolle prosequi (s.71(i) of the Criminal Procedure Code) which is governed by different considerations.

We must now consider the sentence of 7 year's imprisonment which was imposed. At the time of sentencing the Judge expressed the view that the appellant was fortunate not to be facing a more serious charge. It is now clear why he said that, although it had not been apparent on the basis of the Statement of Facts presented to the Court and which might well have suggested that the sentence was excessive.

We are bound to say now that, far from being excessive, the sentence appears to have been most lenient. In the absence of any appeal by the State against sentence we do not think we should consider any increase, but the facts as now revealed certainly place this case in the upper category of manslaughter offences.

We can see no basis upon which this appeal should succeed and it is accordingly dismissed.

Mr. Justice Michael M. Helsham
President Fiji Court of Appeal

Sir Moti Tikaram
Resident Judge of Appeal

Sir Peter Quilliam
Judge of Appeal

Aau0005u.92s