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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI ISLANDS
Criminal Appeal No.AAU 0041 of 2010
(High Court Criminal Action No.0014 of 2010)
BETWEEN:
1. ZAFIR TARIK ALI
2. TAIMUR ALI
3. TAHIR ALI
4. CHANDLESH GANESH
Appellants
AND:
THE STATE
Respondent
CORAM: Hon. Justice William Marshall, Justice of Appeal
Hon. Justice Daniel Goundar, Justice of Appeal
Hon. Justice Paul Madigan, Justice of Appeal
Counsel: Mr G. Reynolds Q.C. and Ms A Neelta for the Appellants
Ms N. Ratakele for the Respondent
Date of Hearing: Friday, 25th February 2011
Date of Judgment: Friday, 1st April 2011
JUDGMENT
1. In this society the rule of law is of vital importance. It is acknowledged by the executive even in this interim period when there is no elected or appointed legislature. Nowhere is it more important than in the criminal law.
2. As Lord Reading L.C.J of England said in 1915 in the case of Lee Kun v. R Crim. A.R. 293 at 300, said:
"...the trial of a person for a criminal offence is not a contest of private interests in which the rights of parties can be waived at pleasure. The prosecution of criminals and the administration of the criminal law are matters which concern the State. Every citizen has an interest in seeing that persons are not convicted of crimes and do not forfeit life or liberty except when tried under the safeguards so carefully provided by the law."
3. Now the three groups of citizens who have the greatest burden in applying the safeguards and maintaining the rule of law in criminal cases are the police who investigate crime, the prosecution service under the Director of Public Prosecutions who have the duty of prosecuting criminal cases in the courts of Fiji, and finally, the judiciary particularly in the High Court. The High Court Judges, who are assisted on the facts by the opinion of the assessors, must apply the rules relating to procedure to be followed at criminal trials with integrity and meticulously, and make all the rulings necessary by applying principles of law without fear or favour in respect of either prosecutor or counsel for the defence. They have the burden of ensuring a fair trial in accordance with the rule of law. It is possible for defence lawyers to do things that undermine the rule of law. However the defence counsel in this case in the Court below acted throughout to uphold the rule of law. He conducted himself in a manner that is beyond reproach.
4. This case at one level is about four men of good character who together with a fifth (also of good character) went in search of a person who had broken, entered and stolen from one of their houses in the middle of the night. But it is at another level an enquiry into the conduct of a prosecutor who intentionally breached fundamental rules vital to the upholding of the rule of law in criminal cases. It is also about having a post mortem system of integrity.
5. The police in this case, as they do in every case with very few exceptions, performed to a high standard. Their investigation was objective, fair and, within the parameters of their resources, left no stone unturned. They were indeed ministers of justice upholding the rule of law.
6. Prosecution services under the DPP are usually carried out to a high standard under the DPP. I have considered many appeals and read many files in criminal cases. In respect of prosecutors I have always found that devotion to duty, to fairness and to the rule of law in criminal cases is exemplary. Most unusually there are criticisms of the prosecutor who conducted the case for the State in the Court below. However it is an isolated and unique case; an exceptional case like this does not cause any loss of public confidence in the conduct of prosecutors. Since the events discussed in this appeal, a new DPP has been appointed. Her team is not in any way responsible for what took place in this case.
7. The case of R v. Banks [1916] 2 KB 621, was not one in which the prosecutor's conduct fell to the low standards of the present case. Counsel for the appellant Banks, a Mr Bosanquet, complained about the prosecutor's address to a jury in which Banks was accused of having carnal knowledge of a girl aged 14 years. His defence was that he believed she was 16 years old. The complaint was that the prosecutor had exhorted the jury
"to protect young girls from men like the prisoner"
Mr Bosanquet submitted (at page 622) to the Court of Criminal Appeal presided over by Mr Justice Avory:
"Counsel for the prosecution ought not to have given the exhortation to the jury. There is a growing tendency on the part of counsel for the prosecution to conduct cases as advocates rather than as ministers of justice. Counsel ought not to struggle to obtain a verdict: Reg v. Rudland (1865) 4 F & F.495, 496; Reg v. Puddick (1865)4F & F.497, 499."
"It is true that prosecuting counsel ought not to press for a conviction. In the words of Crompton J. In Reg v. Puddick 4 F. 497, 499, 'they should regard themselves' rather 'as ministers of justice' assisting in its administration than as advocates. The observation complained of may not have been in good taste or strictly in accordance with the character which prosecuting counsel should always bear in mind."
9. Since it is of the first importance I also cite the modern view upon the same matter. I take it from Blackstone 2011 Edition paragraph D15.3 at pages 1702 – 3. The recommendations of the Farquharson Committee on the role of prosecuting counsel, were published in Counsel, Trinity 1986. I set out the paragraph:
"D15.3 Ministers of Justice In Puddick (1865) $F & F497, Crompton J said (at p.499) that prosecution counsel 'are to regard themselves as ministers of justice, and not to struggle for a conviction' (see also per Avory J in Banks [1916] 2 KB 621 at p.623. Some of the implications this has on the prosecutor's role are identified in the introductory paragraphs of the Farquharson report:
There is no doubt that the obligations of prosecution counsel are different from those of counsel instructed for the defence in a criminal case or of counsel instructed in civil matters. His duties are wider both to the court and to the public at large. Furthermore, having regard to his duty to present the case for the prosecution fairly to the jury, he has a greater independence, of those instructing him than that enjoyed by other counsel. It is well known to every practitioner that counsel for the prosecution must conduct his case moderately, albeit firmly. He must not strive unfairly to obtain a conviction; he must not press his case beyond the limits which the evidence permits; he must not invite the jury to convict on evidence which in his own judgment no longer sustains the charge laid in the indictment. If the evidence of a witness is undermined or severely blemished in the course of cross-examination, prosecution counsel must not present him to the jury as worthy of a credibility he no longer enjoys ... Great responsibility is placed upon prosecution counsel and although his description as a 'minister of justice' may sound pompous to modern ears it accurately describes the way in which he should discharge his function.
In Gonez [1999] All ER (D) 674, the Court of Appeal endorsed the description of prosecuting counsel as a minister of justice, stating that it was incumbent on him not to be betrayed by personal feelings, not to excite emotions or to inflame the minds of the jury, and not to make comments which could reasonably be construed as racist and bigoted. He was to be clinical and dispassionate."
10. I would add two things. There is no accusation in this case that the prosecutor in the Court below in this case was either racist or bigoted. Secondly, Ms Nanise Ratakele who has greatly assisted us on behalf of the State in this appeal, was not the prosecutor in the Court below.
11. Before leaving the importance of upholding the rule of law in criminal cases, it is the case that all judicial officers swear an oath "to serve the people of Fiji". Something similar may apply in respect of prosecuting counsel and to police officers. The words of the oath or affirmation may be different but the meaning must be the same. The police investigator serves the rule of law and the people of Fiji if he or she investigates thoroughly but nonetheless fairly and correctly in respect of gathering evidence, in respect of interrogating suspects and in respect of charging accused persons.
12. The public prosecutor serves the rule of law and the people of Fiji, if he or she observes the rules and does not strive to obtain convictions on a number of unfair and unlawful practises such as trying to get new and inconsistent evidence admitted into evidence against the accused. If the prosecutor does that without giving notice to the Court and the defence counsel who are ambushed and taken by surprise, it is worse. If the Court and the defence are intentionally mislead that makes it much worse.
13. The judge of the High Court serves the rule of law and the people of Fiji if aware of all the rules of law he or she applies them and achieves a fair trial.
14. The appeal judges have to look at miscarriage of justice both under the Court of Appeal Act and in terms of maintaining the rule of law in criminal cases. If there is an institutional failure as there is in this case in respect of the integrity of the post mortem system there may be a need to invite the executive to take steps to remedy the situation.
15. This is an appeal heard by this Court on 25th February 2011. Taimur Ali, Zahir Ali, Tarik Ali, Chandlesh Ganesh appeal against their convictions for the murder on 4th January 2010 of James Shankar Nair. They were convicted after trial before Mr Justice Priyantha Fernando and three assessors on 7th July 2010. They were sentenced on 9th July 2010. They were sentenced to life imprisonment with an order that they must serve 11 years before being eligible for parole.
The events leading up to an entering and theft in the early hours of the 4th January 2010
16. The Ali family have farmed at or near Bau Road Nausori for a number of generations. In or close to their compound in two houses live several of the extended Ali family. Very close by is the house and farm of their close family friend Chandlesh Ganesh who lives there with his wife and two children. Slightly further away on the Bau Road is the house of Tahir Ali who was aged 58 years at the time of these events. He is a livestock farmer raising cattle and goats. He has been doing this all his life. He now lives with his wife and son and his son's wife. His son, Shameer Ali, is an electrician employed at Toberua Island. Tahir is a devout Muslim who says his prayers before retiring. Like all the other four persons involved in the events that I am about to describe, Tahir is a man of good character; that is to say he has never been convicted of a criminal offence. Tahir is the grandfather of Zacariya and the uncle of Zafir and Taimur.
17. The New Year of 2010 for the Ali family was not just a celebration for them reaching January 2010. Friday 1st January and Saturday 2nd January 2010 was to see one of the daughters of Mansoor Ali getting married. The celebration were to take place at the family compound. The extended family, friends and neighbours were invited to attend the two day nuptials. The bride was to be Aheena Ali. Two siblings of the bride made a trip from overseas in order to be at the wedding. One was Zafir Tarik Ali who for some years has lived in Sydney Australia where he is a machine operator; Zafir was aged 28 at the time of the incident. The other was a sister who has emigrated to and is now assimilated in the United States where she has a position as a bank officer. She is Norisha Ali who was 27 years old at the time. She came to Fiji from the US on 27th December 2009 accompanied by her young son for the wedding. Many people believe that those from America are rich and able to afford expensive things; that may have tempted the person who later stole goods including a wrist watch, cosmetics and perfumes to the value of between $400 and $580. Of course any such thief would have had to know about Norisha's temporary presence in her father's home in order to target her property.
18. Apart from the visiting relatives, the youngest child of Mansoor Ali, Taimur Ali aged 19 years at this time lived in the house of Mansoor Ali with the bride and his visiting brother and sister. Taimur Ali had left school after Form 4 and taken up the family business of farming probably with his father Mansoor.
A breaking and entering in the night; a search for the person responsible
Movements of James Nair
"just roaming around"
and at another time before leaving
"that he was going to the place where the wedding had taken place".
"INQUEST ORDINANCES 1967
(Section 6)
Nausori Police Station
REPORT OF MEDICAL OFFICER MAKING
POST-MORTEM REPORT EXAMINATION
If a histological or bacteriological examination Is to be made, please initial
Pathologist's Initials
| P-M Examination Report No: MLC 02/10 | | |
| P-M ordered by: IP Shyam | Date: 04/01/10 | |
| | | |
| Name of deceased: James Shankar Nair | Gender: Male | |
| Age: 26 | | |
| Body identified by: Kumjanba Nair as that of his son named James Shankar Nair | ||
| Observers present at examination: Cpl Ami Chand | | |
| Date of examination: 04/01/10 – 1500 hrs | | |
| Place where examination performed: CWM Hospital | | |
| Estimated time of death: 04/01/10 – 0650 hrs | | |
| | | |
| EXTERNAL EXAMINATION | | |
Height: 174cm
Nourishment: Average
Clothing: Brown t/shirt, black long pants and black underwear
Marks of violence, or identification, e.g. tattoo marks: There are multiple scratches in contusions on left side involving the scalp, face, neck shoulder and left upper limb.
INTERNAL EXAMINATION
THORACIC CAVITY (note mouth, tongue, oesophagus, larynx, trachea, lungs and pleurae
Pleural Cavities: There is approximately 3 litres of blood in the left pleural cavity. The left lung is collapsed. Right pleural cavity is normal.
Lungs: There is multiple parenchyma haemorrhages in the right lung.
ABDOMINAL CAVITY (note stomach and contents, peritoneum, intestines and mesenteric glands, lover and gallbladder, pancreas, spleen, kidneys and ureters, bladder and urine, generative organs
Peritoneal Cavity: Unremarkable
Spleen: (weight: 80grm)
Aorta: The aorta at the junction of the arch and descending part is completely severed. This is the source of blood in the left pleural cavity
Gastro-intestinal Tract: Stomach contains semi digested food
Pancreas: Unremarkable
Liver: (weight: 1880grm) unremarkable
Kidneys: (weight: R-140grm L-140grm) unremarkable
Gall Bladder: Unremarkable
Scalp, Skull and Brain: There is cut in the occipital area of the scalp, 40mm in length. There are multiple fracture of the occipital bone extending to bilateral temporal and across the bilateral petrous bonesand pituitary fossa. The brain is swollen, gyri are flattered and sulci are obliterated. Odontoid process of second cervical vertebra is fractured.
Histology
| Brain: | 1. Contusion of cerebellum | ||||
| | 2. Subarachnoid haemorrhage | ||||
| | 3. Fragments of bone lodged into cerebella | ||||
| | 4. Subarachnoid haemorrhage substance around ... | ||||
| | 5. Fragments of bone in subarachnoid space around ... | ||||
| | | ||||
| Heart : | Nil Diagnostic Abnormality Recognised | ||||
| Lungs: | Oedematous and Congested | ||||
| Liver: | Congested | ||||
| Spleen: | Congested | ||||
| Pancreas: | Nil Diagnostic Abnormality Recognised | ||||
| Kidneys: | Nil Diagnostic Abnormality Recognised | ||||
| Prostate: | Nil Diagnostic Abnormality Recognised | ||||
| Thyroid: | Nil Diagnostic Abnormality Recognised | ||||
| Adrenals: | Nil Diagnostic Abnormality Recognised | ||||
| | | ||||
| In my opinion the cause of death was:- | I | ||||
(a). Disease or condition directly leading to death * | (a) Ruptured aorta (Due to or as a consequence of) | ||||
(b). (c ) Antecedent causes: | (b) Motor vehicle accident | ||||
| Morbid conditions, if any, giving rise to the above causes stating the underlying condition last | (Due to or (as a consequences of) | ||||
| II | | ||||
| (c) Other significant conditions contributing to the | (c) ...................................... | ||||
| death, but not related to the disease or condition Causing it * ................................................... | II | ||||
| | (signed) 24/2/2010 | ||||
| Signature and qualification | DR Ramaswamy Ponnu Swamy Goundar MBBS, DCP, FRCPA, FFCGP, D.Av.Med | ||||
| Address | FORENSIC PATHOLOGIST FIJI POLICE FORCE | ||||
| | * This does not mean the mode of dying such as, e.g. heart failure, asphyxia, asthenica, etc; it means the disease, injury, or complication
which caused the death. * Conditions which do not in the pathologist's opinion contribute materially to the death should not be included under this. HE 533." | ||||
The decision is made by police on 5th January 2010 that any case has to be one of non-intentional death
"16. It is agreed that the cause of death ... was ruptured aorta as a consequence of a motor vehicle accident."
Manslaughter – the matters that must be proved in this case for an accused to be able to be convicted of manslaughter
"Where an arrestable offence has been committed, any person may arrest without a warrant –
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it."
The following extract from Blackstone "Criminal Practice" 1993 Edition at D1.11 explains the requirement that the person lawfully arrested must be taken to a police station or into police custody:
"A person making an arrest is obliged to ensure that the person arrested is properly taken into custody. Where a person is arrested at any place other than a police station, or is taken into custody by a constable following an arrest made by a civilian, the constable is obliged to take him to a designated police station as soon as is practicable thereafter (Police Criminal Evidence Act 1984, s.30(1) and (2))."
"8. Then there was the evidence of a Senior Instructor in the army. He tells of a white van speeding fast followed by a police vehicle when he was returning home to Davuilevu from Nakasi. His evidence is:
"PW3 Nemani Yavita Toga,
Oath Soldier
Taken Davuilevu Housing
I've been an army officer for 22 years and I'm stationed at ATG. I am a senior instructor. I've lived at Davuilevu for 15 years. I recall 30/9/07, at 5.45, I was going home from Nakasi, through Adi Davila Road. Near Abbattoir Road, I saw a white van speeding past, followed by a police twin cab, in the same direction. I followed the police in my vehicle.
We reached Cargill Road, I saw a white van travelling in the same direction. The police cab went left. I called out to them to follow me. We reached Tuilovoni Road. We saw a white van and parked next to it. I saw 2 men. Another one flees. I ran to the van. There was a fight. The 2 men ran after the one that had fled. I called out "Butako! Butako! Butako!
My neighbours came and pursued the men. We later got hold of the men. We fought again and brought the 2 men to the main road. I told my driver to look for the police, to hand over the 2 men. The police arrived. I hand the men over to the police. I then returned home.
I had a good look at the 2 men. I know the 2 men. I could i.d. them. They are in Court today and they are accuseds in the dock.
[PW3 points at accuseds in the dock]."
51. In these circumstances while James Nair was in their lawful custody the four were not performing an unlawful act. There was and is no evidence to suggest any unlawful act such as the crime of abduction whereby their custody of James Nair was unlawful custody.
52. The only definition of manslaughter relevant to this factual matrix is stated in Blackstone, 1993 Edition, at B1.26:
"It is more common to refer to manslaughter as 'unlawful killing without malice aforethought', but this is not particularly helpful, because it does not indicate which killings will be regarded as unlawful in the absence of malice aforethought. In fact there now appear to be two main categories of killing without malice aforethought which are regarded as unlawful and hence amount to manslaughter:
(a) killing by an unlawful act likely to cause bodily harm – often called 'unlawful act manslaughter' or 'constructive manslaughter'; and
(b) killing grossly negligently, or rather, as it seems increasingly to be regarded, killing recklessly."
53. Is there any evidence at all of breach of duty of care amounting to negligence or recklessness causing death? In paragraph 29 above I have noted that the evidence is that the police arrested two of the five for questioning to travel in the tray on 4th January 2010. So as long as there is no accident caused by the driving error of someone that causes a collision and injury to the person in custody there would no breach of duty. If there was a breach of duty of care causing personal injury, the law and society would treat it as a civil claim. It would only be manslaughter or "motor manslaughter" if there was evidence of reckless driving causing injury or death. But it only applies where as Lord Hewart CJ said in Bateman (1925) 19 Criminal Appeal R 8 at pages 11 and 12:
"the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment".
54. What did happen was that James Nair became agitated. He had accepted arrest and being delivered to police for questioning. But as he sat in the tray the implications of interrogation and investigation conviction and imprisonment for some years for entering and theft in a home invasion case at night would have loomed very large in his mind. A suspect who knows he has not committed the offence in respect of which he has been arrested upon reasonable suspicion would not consider or take extreme risks of death or multiple serious injuries to avoid questioning by the police. But a suspect who knew that he had committed the offence under investigation might be desperate to escape the consequences of his crime. Such a suspect might also underestimate the risks of multiple injury or death in respect of jumping off a vehicle travelling at 50 to 65 miles per hour.
55. A person in custody in a vehicle would try other options before taking such risks. One option is to persuade those holding you, to change their mind and release you. Should that fail if you are inside the vehicle you can possibly use violence to persuade the driver to stop the vehicle and when it stops, escape from the vehicle and from those detaining you. But if you are alone on the tray of a Ford Ranger travelling at 50 – 65 miles per hour, forcing the driver in the twin cab to stop is not an option.
56. In his caution statement Taimur Ali tells of an incident immediately after James Nair had jumped in the tray. Although sitting in the middle of the back cab Taimur managed to force his head and an arm out of a back-cab window. Since he had taken a cane knife with him in case the home invader if found turned out to be aggressive and armed, he brandished this knife in his hand and asked James Nair on the tray if he had done the entering and theft at his father's home. Before there was any response grandfather Tahir when this happened told him to sit down.
57. In his caution statement grandfather Tahir states that there was an incident after the Ford Ranger with James Nair still in the tray turned from Vuci South Road into Bau Road in the direction of Nausori. Tahir at this point heard two or three tappings on the window at the back of the twin cab. Since Tahir and the others intended to take James Nair to the police for questioning, Tahir did not ask Zafir to stop and he did not in any other way respond to James Nair. I would accept that Tahir did this, because it was a message that the five having arrested him, would not release him except into the hands of the police for questioning. That would happen within a very few minutes of the time of this tapping incident.
58. If travelling to a police station with police after arrest and in custody police would not agree to release of the arrested suspect on request and would not engage with the arrested person upon this topic. To do otherwise would undermine their legitimate and lawful purpose of effectively investigating crime in the public interest. It is not different for citizens having lawfully arrested a suspect who are engaged in transporting him to the police for questioning.
59. I set out these incidents in order to show that James Nair was running out of options if, because he had committed this offence, he desperately wished to avoid police investigation, conviction and imprisonment. He knew that the five arresting him and conveying him were and would remain steadfast in their lawful purpose of handing him over to the police for questioning.
60. In these circumstances James Nair intended to take the serious risk involved in jumping. The five were behaving lawfully and their agreed purpose was wholly within the law. There was no negligence or recklessness on the part of the five and they did not owe any duty of care towards James Nair and therefore were not in breach of any duty of care owed to James Nair. Therefore the five did not act recklessly causing the death of James Nair. Every year around the world there are incidents involving suspects who take huge risks with their safety to avoid being held to account for their crimes. Many of these meet their death when this risk taking occurs. They die and the reason for their death is their own actions; their death is the result of their own misadventure. On 4th January 2010 James Nair took serious risks of death or of multiple serious injuries; unfortunately he joined the number of those whose death must be ascribed to misadventure. No one killed James Nair; nor was it the taking of his own life. He did not intend to die but died because he intentionally took a serious risk and it did not work out in his favour.
The decision to prosecute for manslaughter
61. It is the practice in Fiji that a decision to prosecute should not be taken unless the DPP after proper consideration of all the issues concludes that there is a better than 50 percent chance of obtaining a conviction.
62. If that exercise were to be done properly in this case, an analysis would be required taking as its starting point the factual matters that were likely to be proved by the prosecution evidence. That would have lead to the facts on which the police on 5th January 2010 based their charges of manslaughter which was that the cause of death was jumping from a moving vehicle and that the account of the five as I have set it out above was a truthful and accurate account of what had happened between 2.00 a.m. and 3.00 a.m. on 4th January 2010.
63. Then the exercise required an examination as to whether all the necessary elements for a charge of manslaughter could be proved to the criminal standard of proof.
64. While it might have been permissible for police in charging manslaughter to content themselves with a vague view that somehow or another there must have been an unlawful joint enterprise conducted by the five and that if an unintended death occurred while that was happening, then all were guilty of manslaughter. But if the appropriate legal and factual analysis was carried out by a competent member of DPP's staff he or she would have to conclude that instead of a better than 50 percent chance of obtaining a conviction, the prosecution would not get beyond the submission of no case at the end of the prosecution case. As analysed above this arises:
(1) Because the arrest and carriage to police questioning was lawful as an arrest upon reasonable suspicion of James Nair. There was ample sufficiency of matters for reasonable suspicion. The search and arrest and carriage of James Nair to police questioning may have been a joint enterprise among the five but it was clearly a lawful one.
(2) There was no reckless breach of a duty of care that caused James Nair's death. James Nair ran out of options of escaping from police questioning conviction and imprisonment and took a huge risk of death as of multiple serious injury and jumped. He therefore caused his own death by misadventure.
(3) If James Nair's own action caused his death, there is no evidence at all that the five caused his unlawful death. Nothing in their behaviour suggested that they wanted him to jump and risk his life. Nothing in the evidence shows that they considered it as a possibility desirable or undesirable. Nothing in the evidence suggests that any of the five encouraged James Nair to jump and risk his life. It is difficult to envisage persons of mature years and good character such as grandfather Tahir and Chandlesh Ganesh ever countenancing any conduct of themselves or the other three that might encourage James Nair to jump and kill himself. What they wanted was reasonable and lawful. That is that James Nair being reasonably suspected of entering and stealing should face police interrogation. Why would they want James Nair dead or seriously injured? They want the person who committed the breaking entry and theft caught and made to face police interrogation. When they found a suspect who was known to them and an erstwhile friend of the family why should their lawful intention change in any way?
65. The DPP, if this exercise had been objectively carried out on this criteria would have had to terminate this prosecution for manslaughter. That should be no cause for loss of face on the part of police or the DPP. Although it is the wrong approach it may be that the DPP, since unnatural death had occurred while someone was in the custody of the five, preferred to take and lose a hopeless case to court so that the matter was publicly ventilated. In any society a violent death while in or even while escaping from the custody of others excites passion and rumour so that the transparency of a public enquiry is considered a social necessity. But the law for centuries has provided a specific legal mechanism for that; it is called a Coroner's inquest. Whether in Fiji the Coroner can sit with a jury as in England, I do not know. If a Coroner's enquiry agitated all relevant matters and was completely carried out in public it would have been the correct legal way of explaining that there was no evidence against the five who were acting lawfully and that James Nair had died of misadventure while attempting to escape from police interrogation and further process against him.
The immediate pre trial and trial-events
66. As I have set out above it has often been said (at least in England) that the prosecutor in a trial acts as a minister of justice putting firmly and fairly all the relevant points without passion or interest for a particular outcome whether it be conviction or acquittal. The forthcoming trial was assigned by the DPP to an experienced prosecutor Ms J. Cokanasiga.
67. The assigned prosecutor must have realised that there was no evidence on the required elements for manslaughter. But instead of proceeding the matter to a transparent and inevitable acquittal, she decided to approach the pathologist Dr Ponnu Swamy Goundar. That she approached him is evidenced by the pathologist at page 332 of the Record. That she knew before the trial that Dr Goundar was prepared to wholly change his evidence on cause of death, and rule out that James Nair jumped from a moving vehicle leading to his death, and make it his evidence that James Nair had been beaten to death with blows to the head from one or more blunt instruments is quite clear. That is because an amended information apparently approved by the Acting Director of Public Prosecutions Mr A Rayawa, dated 5th June 2010 charged murder against the four accused in place of manslaughter. Since this was not the case supported by the prosecution witnesses that had been disclosed, it is clear that the Prosecutor's intention was not to disclose Dr Goundar's "new evidence" although she wished the indictment changed from the commencement of the trial. It is clear that she went to some lengths to ensure that neither the Court or the Defence (Mr M Raza) were aware of the changes in prosecution evidence that she had planned which would raise the possibility of a verdict of murder. That is because she signed on 9th June 2010 agreed facts which included:
"16. It is agreed that the cause of death ... was ruptured aorta as a consequence of a motor vehicle accident".
When the prosecutor signed this she must have known that she intended the prosecution to prove its case that the cause of death was not a burst aorta but head injuries consistent with being beaten to death by blows from a blunt instrument.
68. The prosecutor agreed 16, because she wished to mislead the Court and the Defence that the prosecution case in terms of the facts that would be proved by the prosecution would remain the same. If they were so mislead, they would be confused as to in what way the new murder charge could be relevant. True it is that a motor vehicle may be used to murder someone if it is driven with intent to kill. But that is a huge distance from what the evidence of Zakariyah, supported by the pathologists report of 24th February 2010 quoted in full in paragraph 41 above could and would prove.
69. This misleading of the Court and the Defence worked in as much as on the same day as signing the agreed facts, the prosecutor on 9th June 2010 succeeded in obtaining the Court's approval for the new murder information. The Defence thought that their defence was the same for murder and manslaughter and so did not object to the amended information. Of course their defence was the same on the disclosures and agreed facts known to them at that time. The Court seems to have been of the view that if the Defence did not object then the amendment should proceed.
70. But in my view what the Court should have done was to invite the prosecution to point to the evidence, which was tailored to manslaughter and ask where the prosecution's disclosed evidence was which, if proved, could begin to be evidence of an intent to kill James Nair. To move from manslaughter to murder in terms of possible sentences and to the reputation of the accused is a most serious and grave matter. If the Court had assessed the evidence disclosed on 9th June 2010 by the prosecution it would have concluded that there was some evidence of manslaughter but none at all for murder. It is ultimately for the Court to ensure that the accused persons in a trial before a High Court Judge assisted by assessors is a fair trial. A fair trial means full disclosure of all prosecution evidence as soon as it is available. If the prosecution failed to proffer new evidence that would have supported, in some limited way a verdict of murder, then the amendment should not have been acceded to by the Court. The Defence counsel should have urged this course. He at least should have known whether the disclosed prosecution evidence lead inevitably to some evidence of manslaughter and zero evidence of an intent to kill James Nair. Where the prosecution case is framed with evidence to support only manslaughter, it is not to be expected or tolerated that the prosecution should at trial call that evidence as though it proved the charge of manslaughter with a secret intent and agenda that they would later resile from agreeing that that prosecution evidence was probative of the truth. If they were allowed to so resile, the prosecution would then sum up to the tribunal of fact, that all the evidence they had called was other than the truth of what had happened.
71. I believe if the learned judge had proceeded as I have outlined he would have concluded that since there was no evidence of intent to kill the amended information should be ruled out. If so the trial would have proceeded on manslaughter. It would have been a fair trial in terms of timely disclosure and transparency. In discussing this issue as I have, I do not lose sight of the fact that the evidence for a verdict of manslaughter on a number of essential elements was non-existent as explained above.
72. The trial proper began on 10th June 2010 when the principal witness for the prosecution on the disclosures Zakariyah (full name Mohammed Zakariyah Ali) was in the witness box with the usual breaks from 9.30 a.m. until the end of the first day. Although as one of the five he was to the same extent as the other four guilty of whatever the Court might find, it appears he was not given any formal conditional immunity from prosecution. But then his evidence was in broad detail the same as was contained in the caution statements of the other four. Zakariyah in the defence view was proving the facts that was the evidence of all five. So given his age of 16 years and the uncontroversial nature of his evidence it may have been appropriate to proceed without a formal conditional immunity from prosecution. That is so when the charge was manslaughter; I do not think it was appropriate after the charge was amended to one of murder.
73. The trial meandered through a further seven prosecution witnesses all giving evidence as per the disclosures that supported the prosecution's case on manslaughter until Monday 21st June 2010. At 9.30 a.m., probably in the absence of the assessors, the record at page 306 reads:
"Counsel for the State informs that she had a pre trial meeting with the pathologist and the contents of the Post Mortem Reports differs from his notes. So amended Post Mortem Report with disclosures have to be filed...."
Although nothing else happens during this day, there is no record of the learned judge or Defence counsel complaining about how this had now become trial by ambush. Nor was it pointed out by the trial judge or Defence counsel that the Prosecutor had mislead them on 9th July 2010 when failing to disclose the reason for filing the amended information for murder, and, on 9th July 2010 agreeing to fact 16 concerning the ruptured aorta and the traffic accident. At the very least the defence should have insisted on a new trial and time to thoroughly investigate the new contradictory case mentioned for the first time twelve or so days after the trial had begun. Since this involved a so called expert witness at this late stage turning himself upside down and impugning his earlier disclosed evidence, the learned judge should have considered all relevant matters and refused the application at this stage to file additional evidence pursuant to the usual notice. To admit this new evidence was to lose control of the integrity of the trial. As a trial it was not conducted in accordance with acceptable norms of fairness. I will return to this when I discuss the law on surprise evidence disclosed and put in for the first time during a criminal trial.
74. The Notice of Additional Evidence (Record page 237) is dated 21st June 2010 and the first item on the list is:
"1. Copy of Statement of Dr Ponnu Swamy Goundar."
The second item is the new Post Mortem Report dated 21st June 2010.
75. But there is no statement of Dr Ponnu Swamy Goundar in the Record of Proceedings. Was there ever such a statement?
76. There are other documents consisting of notes and a Post Mortem Report on Samisoni Vuanicau. It is alleged that Samisoni Vuanicau was also the subject of a post mortem on 4th January 2010. However the copy of the Post Mortem Report produced in relation to him displays no confidence in its integrity. For one thing it is dated 21st June 2010.
77. I here set out in full the second Post Mortem Report dated 21st June 2010 purporting to relate to the autopsy of James Nair on 4th January 2010.
"INQUEST ORDINANCES 1967
(Section 6)
Nausori Police Station
REPORT OF MEDICAL OFFICER MAKING
POST-MORTEM REPORT EXAMINATION
If a histological or bacteriological examination
Is to be made, please initial
Pathologist's Initials
| P-M Examination Report No: MLC 02/10 | | |
| P-M ordered by: IP Shyam | Date: 04/01/10 | |
| | | |
| Name of deceased: James Shankar Nair | Gender: Male | |
| Age: 26 | | |
| Body identified by: Kumjanba Nair as that of his son named James Shankar Nair | ||
| Observers present at examination: Cpl Ami Chand | | |
| Date of examination: 04/01/10 – 1500 hrs | | |
| Place where examination performed: CWM Hospital | | |
| Estimated time of death: 04/01/10 – 0650 hrs | | |
| | | |
| EXTERNAL EXAMINATION | | |
Height: 174cm
Nourishment: Average
Clothing: coloured shirt lining, blue T-shirt, blue jeans and red underwear
INTERNAL EXAMINATION
THORACIC CAVITY (note mouth, tongue, oesophagus, larynx, trachea, lungs and pleurae
Pleural Cavities: Unremarkable.
Lungs: (wt. R-520 grm L – 380 grm) contused and haemorrhagic
ABDOMINAL CAVITY (note stomach and contents, peritoneum, intestines and mesenteric glands, lover and gallbladder, pancreas, spleen, kidneys and ureters, bladder and urine, generative organs
Peritoneal Cavity: Unremarkable
Spleen: (wt: 80grm) Unremarkable
Aorta: Unremarkable.
Gastro-intestinal Tract: Stomach contains semi digested food
Pancreas: Unremarkable
Liver: (weight: 1140grm) unremarkable
Kidneys: (weight: R-80grm L-100grm) unremarkable
Gall Bladder: Unremarkable
Scalp, Skull and Brain: There is cut in the occipital area of the scalp, 40mm in length. There are multiple fractures of the occipital bone extending to bilateral temporal and across the bilateral petrous bones and pituitary fossa. The brain is swollen, gyri are flattered and sulci are obliterated. Odontoid process of second cervical vertebra is fractured.
Histology
| Brain: | 1. Contusion of cerebellum | |||
| | 2. Subarachnoid haemorrhage | |||
| | 3. Fragments of bone lodged into cerebella | |||
| | 4. Subarachnoid haemorrhage substance around ... | |||
| | 5. Fragments of bone in subarachnoid space around ... | |||
| | | |||
| Heart : | Nil Diagnostic Abnormality Recognised | |||
| Lungs: | Oedematous and Congested | |||
| Liver: | Congested | |||
| Spleen: | Congested | |||
| Pancreas: | Nil Diagnostic Abnormality Recognised | |||
| Kidneys: | Nil Diagnostic Abnormality Recognised | |||
| Prostate: | Nil Diagnostic Abnormality Recognised | |||
| Thyroid: | Nil Diagnostic Abnormality Recognised | |||
| Adrenals: | Nil Diagnostic Abnormality Recognised | |||
| | | |||
| In my opinion the cause of death was:- | I | |||
| (d). Disease or condition directly leading to death * | (a) Compression of medulla Oblongata due to fracture Odontoid process and multiple fractures of the skull (Due to or (as a consequences of) | |||
| (e). (c ) Antecedent causes: | (b) .................................. | |||
| Morbid conditions, if any, giving rise to the above causes stating the underlying condition last | ............ (Due to or (as a consequences of) | |||
| II | | |||
| (f). Other significant conditions contributing to the | (c) ...................................... | |||
| death, but not related to the disease or condition Causing it * ................................................... | II | |||
| | (signed) 21/06/2010 | |||
| Signature and qualification | DR Ramaswamy Ponnu Swamy Goundar MBBS, DCP, FRCPA, FFCGP, D.Av.Med | |||
| Address | FORENSIC PATHOLOGIST FIJI POLICE FORCE | |||
| | | |||
| | * This does not mean the mode of dying such as, e.g. heart failure, asphyxia, asthenica, etc; it means the disease, injury, or complication
which caused the death. * Conditions which do not in the pathologist's opinion contribute materially to the death should not be included under this. HE 533." | |||
78. The notes are no doubt in the handwriting of Dr Ponnu Swamy Goundar. They are alleged to be contemporaneous notes written on the 4th January 2010. This is self serving evidence and there is no proof of when and in what circumstances they were prepared. These notes were exhibited as in their original state in a "Post Mortem Book". There was no proof of how this book originated or what its place is, if any, in a carefully devised system designed to safeguard the integrity of autopsies. On 24th June 2010 the book was shown to the learned Judge and the assessors. Copies were retained of the alleged relevant pages and the book was returned to the safekeeping of Dr Ponnu Swamy Goundar. There was no investigation as to how the new evidence arose or in to the systems and safeguards in respect of post mortems. I will discuss below matters of admissibility and weight and credibility with regard to this "evidence".
79. The law on additional evidence and surprise is set out in Blackstone's Criminal Practice (1993) para D12.28 (pages 1271-2) (in 2011 Edition it is paragraphs D15.25)
"Calling of Additional Evidence
The prosecution at trial on indictment are not confined to using solely the evidence they relied upon at the committal proceedings. Nor are they obliged to call at committal all the evidence then available to them (Epping and Harlow Justices, ex parte Massaro [1973] QB 433). If, however, they intend to call evidence at trial additional to the evidence used at committal (whether that be evidence which was not then available or evidence which they simply chose not to adduce), they are required to give the defence notice of their intention. They must also supply a copy of the statement of the additional witness or, as the case may be, a copy of the further statement made by a witness whose first statement was used at committal.
The above represents the invariable modern practice. However, a number of 19th century cases suggest not only that additional evidence is admissible at trial but also that the prosecution may take the defence by surprise with it (see e.g., Connor (1845) 1 Cox CC 233 where the trial judge said that he could not force the prosecution to disclose to the defence a large amount of additional evidence which had been accumulated since committal). The present position was indicated in Wright (1934) Cr App R 35, where W appealed, inter alia, on the ground that the prosecution, in order to prove that the handwriting on a certain envelope was his, called a witness to produce two specimens of his writing and then invited the jury to compare the writing on the envelope with the specimens. Apart from objecting to the lack of evidence from a handwriting expert, the defence contended that they had not been notified of the intention to put the specimens into evidence.
Avory J said (at p.40)
At most that is a grievance and cannot affect the admissibility of the evidence put before the jury, and, if the appellant or his counsel thought that he was being prejudiced by having had no notice and really desired to call expert evidence to deal with the question of handwriting, he could have applied for an adjournment, but he did not do so.
Although the appeal was dismissed and the lack of notice treated as a mere 'grievance' not fatal to the admissibility of the handwriting specimens, there is nonetheless an implication that the defence could have asked for an adjournment which – were there any real possibility of their being prejudiced by the lack of notice – should have been granted. Thus, the sanction requiring the prosecution to give timely notice of additional evidence is the knowledge that, in the absence of such notice, the trial may have to be adjourned until it has been served and the defence have had time to consider their response to it. Alternatively, if an adjournment is undesirable in the circumstances, the judge could exercise his discretion and exclude the evidence under the Police and Criminal Evidence Act 1984, s.78, on the ground that to admit it would be unfair in view of the lack of notice.
Assuming notice of intention to call additional evidence is given, it is normal to serve with it a copy of a statement from the witness complying with the formal requirements of the Criminal Justice Act 1967, s.9. If the defence do not object within seven days, it will then be possible to read the statement as evidence at the trial without calling the witness."
80. While the Police and Criminal Evidence Act 1984 section 78 in the United Kingdom has not yet been enacted in Fiji, to what extent does it now represent the common law in all common law countries? In my view the criminal law has moved on completely from the 19th Century cases such as Connor. It has also moved on from Wright and the common law of 1933.
The common law now reflects section 78 of the Police and Criminal Evidence Act 1984 and a fair trial requires a discretion in the trial judge to exclude evidence if there is lack of notice. I would go further and suggest that if there is evidence that the lack of notice was intentional on the part of the prosecution who intended to surprise and ambush and cause unfairness and prejudice to the Defence, the common law discretion to exclude becomes a discretion that must be exercised by the Judge to exclude the new evidence. As noted above in this case it goes further. The prosecutor in agreeing admitted fact number 16 on 9th June 2010 took active steps to mislead the Court and the defence as to what the post mortem evidence was and what it proved.
81. Consider the following passage dealing with a different but related procedural duty of the prosecution to call evidence from the prosecution witnesses listed on the back of the indictment. It is from Blackstone (1993) paragraph D12.36 (pages 1255 – 1256):
"Although counsel has a discretion not to call a witness on the back of the indictment, he must exercise his discretion in a proper manner and not for what Lord Thankerton in Adel Muhammed El Dabbah v. Attorney-General for Palestine [1944] AC 156 described as some oblique motive (i.e., unfairly so as to surprise or prejudice the defence)".
Although the context is different, the direction of the development of the common law on this matter that I have stated above is strengthened and supported by this dictum of Lord Thankerton in the House of Lords as long ago as 1944.
82. The civil law has always stressed the duty to act in good faith and fairly giving an opportunity for those affected to address the decision maker knowing all the matters relevant to an administrative decision. I would cite in this regard the now venerable wisdom of Lord Loreburn LC in Board of Education v. Rice [1911] UKLawRpAC 18; (1911) AC 179 at 182 and the recent trend to ever stricter duties of fairness, including which is usually never in doubt, the duty to act in good faith, which was set out in modern terms in respect of administrative decisions by Lord Mustill in R v. Home Secretary Ex parte Doody [1993] UKHL 8; [1994] 1 AC 531 at 560. Firstly I mention this because fairness and good faith in decisions made by prosecutors and judges are the most important decisions of all since they involve issues of imprisonment (in this case for life) and reputation. Secondly I mention it because under the direction of the judges through judicial review of administrative action, the position has now been reached where the civil law applies fairness more fully and comprehensively than does the criminal law in respect of prosecution decisions and the judges duties of presiding over transparent and fair criminal trials. In respect of her decisions discussed above the prosecutor was acting oppressively and in bad faith. She was also intent on misleading the Court.
83. I revert to the events at trial. On 24th June 2010 Dr Ponnu Swamy Goundar gave his evidence. After stating his mistakes he insisted that he could rule out "road accident" which in context meant death from jumping from a vehicle at 50-65 m.p.h. In its place he said expressly and impliedly that a person or persons must have killed James Nair at the spot where his body was found by blows of great force from one or more blunt instruments.
84. What provided the Prosecution with a reason to visit Dr Ponnu Swamy Goundar with a view to seeing if he would change his evidence on material matters would seem to be the fact, which is clear from evidence given at trial and in disclosures, that the clothes worn by James Nair in the first post mortem report were stated incorrectly. But the clothes may be dealt with and reported upon to the typist by some assistant within the mortuary. If so it is probably the one item in the whole report form where there is serious risk of error. There is nothing in the report dated 24th February 2010, apart from clothes, that could put one on notice of any error re medical findings.
85. There is no doubt as to the clothes James Nair was wearing during the post mortem. The mistake over clothes is obvious to anyone looking at the two photos of the dissected upper body of James Nair which are at page 156 of the record. There is the same white shirt with multiple and varied dark vertical stripes as is seen on the body of James Nair where it is photographed when found in the culvert. (see pages 154 and 155 of the Record). It may be that the red underpants can also be seen on the dissected body in the mortuary.
86. From internal examination onwards each and every point pertaining to the physical examination of the body should be recorded in a note solely relating to one and one only deceased person by the pathologist in charge of the post mortem. It may be that a single tape or disc could be used and the theatre wired for sound. In this way the witnesses would hear each finding from the pathologist conducting the post mortem as it was made and in the proper order. The tape or disc used only for one post mortem, would be securely marked and filed. The typist would access it to produce the typed report and return it to a secure filing system.
87. Certainly the clothing mistake was the first thing pressed on the Court by Dr Ponnu Swamy Goundar in the following passage:
" ... I can identify the mistakes made.
1st under the clothing – James Shankar wore coloured short lining, blue jeans and red underwear.
In my original report it was brown T-Shirt black long pants and black underwear which belongs to Samisoni".
Could this obvious mistake have been used in this way to encourage acceptance of other important mistakes?
Is there any evidence at all on the amended charge of murder with regard to all or any of the elements of murder that must be proved beyond reasonable doubt?
88. What is said here has been accepted law for a long time and I take the following from Blackstone (2011) at D15.56. Only the first of four propositions is cited as it is sufficient.
"The following propositions are advanced as representing the position that has now been reached on determining submissions of no case to answer.
(a) If there is no evidence to prove an essential element of the offence a submission must obviously succeed.
(b) ... (c) ... (d)."
89. The following exercise requires a suspension of disbelief. That is because later in this judgment after considering the evidence and giving reasons for any opinion, I conclude that Dr Ponnu Swamy Goundar's evidence of ruptured aorta not being the cause of death is not credible and that no weight could or should have been given to it. That and his evidence of head injuries being the only cause of death lead to Dr Ponnu Swamy Goundar saying in evidence that his evidence was that at the spot where his body was found a person or persons battered James Nair's head with very great force with one or more blunt instruments and fatally injured he fell where he was found at 6.30 a.m. on the morning with a scatter blood stain extending 1.3 metres and one blood stain some 4.2 metres from the body.
90. Sometimes the expression is used "there is no smoking gun". What is meant can be explained by an example of facts where there would be "a smoking gun". A man lies dead of a gunshot wound(s). Immediately after witnesses heard a shot or shots a person with a gun in hand is seen running away from the immediate scene with a recently discharged firearm in his hand. It is proved that this is the weapon which caused the death. When witnesses within some seconds investigate the scene there is no one else around.
91. Alternatively the smoking gun might have been left at the immediate scene of the shooting and the man may have been seen running away without it. Obviously when the man is caught he has a lot of explaining to do because
(1) he is identified at or very close to the scene of the event at the time of shooting.
(2) the weapon causing the death is identified and found in his possession or discarded at the scene immediately after the event. There is evidence that no other person was around at or near the scene of the crime at the relevant time.
92. So when we say there is no "smoking gun" it is obviously a proposition about possible perpetrators found at or very close to the scene and about the murder weapon being found and linked to them.
93. Dr Ponnu Swamy Goundar's evidence is no more than a deductive hypothesis. In his hypothesis the perpetrators intentionally did the deed at the scene in the culvert off Bau Road. But his hypothesis does not identify who the perpetrator or perpetrators were. Nor does it find any blunt instruments used in the killing either at the scene or elsewhere.
94. I have commented that the preparation of plans and photographs was inadequate. There are no scenes of crime specialists in Fiji. Those who do the job do their best but the specialist teams operating in developed common law countries such as the United Kingdom have skills and expertise not available in Fiji which will inform objectively as to the facts of death. Such facts very often confirm or eliminate suspects. In Fiji there is fingerprint evidence but there are no weapons or other relevant objects which have been tested for the fingerprints of the four accused. There is no contact evidence in Fiji; contact evidence is sophisticated and can confirm or eliminate suspects. There is no DNA evidence available in Fiji; DNA evidence is very sophisticated. It can be decisive in relation to blood found at the scene on the deceased or on the person or on the clothing of suspects, upon possible murder weapons such as blunt instruments, or cutting weapons. There is no adequate forensic pathology evidence in Fiji either.
95. The consequence is that in Fiji there is often very little evidence and the principal evidence in most cases is the allegedly voluntary confession of the suspect. The second strand relied upon is identification evidence. That is often not available or not reliable. The third strand is circumstantial evidence. But without professional crime scene officers, contact evidence and DNA evidence, there is little or no reliable circumstantial evidence connecting suspects to the actus reus of the offence or in offences against the person in respect of the weapons that may have been used.
96. It is not possible to say that in the absence of professional scenes of crime evidence, contact evidence and DNA evidence, somehow the circumstantial evidence that is available in Fiji must be given extra strength and weight.
97. The actus reus of the murder on Dr Ponnu Swamy Goundar's hypothesis, is the hitting of James Nair's head with a blunt instrument or instruments at the point where the body lay in the culvert, by one or more of the four accused. There has to be some evidence of this or an essential element of the offence is not proved at all not to mention that the requirement is for it to be proved beyond reasonable doubt. There is no direct evidence at all of a person or persons being observed committing the actus reus. If there were such evidence there is no evidence at all identifying an observed perpetrator or perpetrators as being one or more of the four accused persons. There is no evidence at the scene of the crime in the culvert connecting the force that killed James Nair with any person at all. There are no weapons found at the scene.
98. As Mr Reynolds QC said in his oral submission although I cannot guarantee that the following is exactly how he put it:
"There is no blood or other contact evidence on the piece of wood retrieved from the tray of the vehicle or on the knife carried by Taimur when the five went in search of the person who at around 2.00 a.m. had entered Mansoor Ali's house on the Ali compound and stolen the property of Norisha Ali."
99. In my view there was no evidence at all connecting any of the four accused to the actus reus of murder as hypothesised by Dr Ponnu Swamy Goundar. There was and is "no smoking gun". Since this is an essential element, the no case submission should have been upheld.
100. Nor does the prosecution evidence of Zacariyah do other than negative the doctor's hypothesis. It was relied on before the assessors by the prosecution who called Zakariyah as a witness of truth. At no time was he made hostile and he therefore came up to proof. His evidence is that James Nair must have jumped somewhere along Bau Road between the point when he was seen to be on the tray and the moment when it was observed that he was no longer on the tray. Zacariyah's prosecution evidence was that the vehicle was in motion and travelling at 50–65 m.p.h. when James Nair jumped.
101. Zakariyah's prosecution evidence was that the Ford Ranger vehicle did not stop until the encounter with the red car driven by "mum's younger brother" at which time a police vehicle arrived and the fact of James Nair having jumped was immediately passed by the five to the police. Then the search. Then the visit to James Nair's house. So the evidence of Zakariyah adduced and relied upon as the truth by the prosecution positively rules out any of the four accused being at the scene in the culvert at the relevant time bashing James Nair to death. What he says is that at that moment all five in the twin cab were proceeding along Bau Road at about 50–65 m.p.h.
102. Another matter in my view is significant. If the doctor's hypothesis was true and one or more of the four or five had ruthlessly bashed a possible thief to death in the culvert, why would they then a few minutes later go to the police and invite them to search for the body?
103. Tahir, who in his statement gave the same evidence as Zakariyah, but did not neglect to tell of matters that could possibly be held against himself or the others. He told about Taimur's action while holding a knife and with his head out of the rear cabin window, shouting at James Nair in the tray.
104. Obviously Tahir was in charge and his immediately obeyed instruction to Taimur to sit down as well as being the interrogator of James Nair outside the cemetery shows him as a leader prepared to restrain any youthful excesses on the part of younger relatives. Tahir is a farmer aged 58 years of good character who says his prayers before retiring each night. Yet the prosecutor suggested that he took on the role of a ruthless murderer of a petty thief who has entered and stolen from Norisha Ali an hour before. There is a world of difference between bringing such a person as James Nair to the police for questioning and ruthlessly murdering him with a blunt instrument at the culvert to the side of Bau Road.
105. All the others in the twin cab were of good character as well. Chandlesh Ganesh is also a farmer with a wife and two children. He was aged about 35 years at the time. Zafir the driver is younger. He has a job in Australia and was in Fiji for his sister's wedding. Finally there is Taimur who was the second youngest of the five. But he is of good character and was clearly obeying Tahir and allowing his youthful excesses to be curbed by Tahir. In all these cases the prosecutor made the allegations that they turned themselves into ruthless murderers.
No evidence against any of the four accused in respect of joint enterprise to murder James Nair
106. If there is no evidence of any of the four accused at the scene where James Nair was murdered in accordance with Dr Ponny Swamy Goundar's hypothesis the prosecution have insuperable problems over proving their claim that the murder was a joint enterprise.
107. Their task is to prove that each individual accused joined in a common intention to murder James Nair in accordance with Dr Ponnu Swamy Goundar's hypothesis. Where is the evidence of this, for example, against Tahir? The evidence of the prosecution is that when 20 year old Taimur got out of line and held a knife out of the cab window, Tahir told him straightaway to sit down and he did. As discussed in respect of the original charge of manslaughter, the five in the Ford Ranger at all times were acting lawfully in taking James Nair to police for questioning. Tahir ignored James Nair's tapping. But this is lawful as discussed above when their joint intention was to take James Nair to the police for questioning.
108. There is no evidence that Tahir was at the murder scene in the culvert off Bau Road striking James Nair with a blunt instrument. Likewise there is no evidence of Tahir being there encouraging one or more of the other four to bash James Nair with a blunt instrument. Nor is there any evidence of Tahir agreeing with one or more of the other four that some or all of them should take James Nair to a place like the culvert and beat him to death with tremendous force using a blunt instrument to the head. Indeed the prosecution evidence of Zakariyah was that the Ford Ranger was in motion all the way along Bau Road and that they did not know exactly where James Nair jumped off.
109. There is no evidence at all that the Ford Ranger became stationary at any point in Bau Road. If it was in motion then the five remained in the cab and could not have gone to the culvert where according to Dr Ponnu Swammy Goundar hypothesis one or more of them bashed James Nair on the head with a blunt object.
110. There is no evidence at all that Tahir took part in a joint enterprise to kill James Nair. For reasons stated above it is not likely that he would ever have contemplated in respect of James Nair, anything other than taking him as a suspect to the police for questioning. If one does a similar exercise for the other three accused or for Zakariyah, one must come to the same conclusion. There is no evidence of any kind against any of the four accused or Zakariyah for that matter that any one of them was involved in a joint enterprise to murder James Nair.
111. Although it does not add anything to the common law in my opinion, in Fiji section 22 of the Penal Code defines joint enterprise. It says:
"When two or more people form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."
112. I agree with Mr G Reynolds QC for the four accused when he writes in his submission:
"The prosecution still cannot formulate a case based on the 3 elements of s.22 namely:
(i) Each of the Appellants formed a common intention to prosecute an unlawful purpose in conjunction with one another;
(ii) In the prosecution of this purpose the offence of murder was committed;
(iii) The commission of the offence of murder was a probable consequence of the prosecution of the unlawful purpose."
113. My conclusion is that both on lack of evidence of involvement of any of the four accused on the actus reus as hypothesised by Dr Ponnu Swamy Goundar, and on lack of any evidence against any of the four accused on joint enterprise this case should not have proceeded beyond a submission of no case to answer at the close of the prosecution case. Where there is no evidence at all upon two essential elements that have to be proved beyond reasonable doubt, there is no room for applying that strand of R v. Galbraith [1981] 1 WLR 1039 which relies on "some evidence but it is of a tenuous character".
What weight or credibility should have been given to Dr Ponnu Swamy Goundar's evidence at trial denying the material facts in his first report and stating that the only cause of death was head injuries?
114. In common law countries there is one element common to all homicides. The body has to be autopsied so that the facts of injury or abnormality are known. I have explained above how important to investigation and trial the post mortem examination is. Throughout the common law jurisdictions, the importance of the post mortem unassailably establishing the physical facts internally and externally of the condition of the deceased and his organs has been recognised. Forensic pathologists should be persons of learning integrity and reputation.
115. Competent pathologists of integrity might differ on what caused injuries and ultimately death. When it comes to how the fatal wound came about there may be honest divergence of views between experts. But experts would never differ on the facts of physical injuries and the state of the body at the time the post mortem took place.
116. If the integrity of the system breaks down it is for the Courts to be persuaded on evidence of safe system and procedures in every case. It is so important because such serious consequences turn on it if this official evidence is suspect. So the Court could only proceed on a voir dire in every case to show that a particular post mortem was performed competently and the finding explained to witnesses with recordings and photographs being taken at the time of the post mortem.
117. Without such a voir dire, which would require in many cases a defence forensic pathologist to be present at the post mortem, the State's evidence from a controversial system and the possibility of faking the injuries to support a false prosecution case, must be rejected. A real factor is that once the body is cremated or otherwise disposed of, the ultimate source of the correct and truthful evidence of physical injuries and abnormalities no longer exists. This means that when the system has broken down, unless the body can be examined, later changes in findings carry no weight at all. If so the learned judge must declare the evidence inadmissible.
118. In this case we are looking at a system in this case that has broken down and has no integrity. There is an obvious connection between the unconscionable behaviour of the prosecutor discussed above and the claim that the results of the autopsy were wrong. Although the prosecution evidence concerning cause of death is settled by accepted prosecution evidence, which has been fully disclosed the prosecutor goes to see the pathologist. The pathologist then changes his factual evidence of the findings on the autopsy in very material matters. These new matters are used to support an amended charge of murder rather that manslaughter.
119. If the new evidence was able to be defended on a thorough enquiry the prosecutor should have served a comprehensive statement from the pathologist explaining the system, the safeguards and the mistakes including evidence from witnesses such as Corporal Ami Chand. Meanwhile the trial dates should have been vacated to allow appreciation of the implications of the new evidence by the Court and the defence and for evidence to be adduced. There should then have been a voir dire.
120. Instead the prosecutor on the eve of the trial conceals any hint of the change in evidence that she intends. The prosecutor does so by making a formal agreement that binds the prosecution to the evidence of the first report turning as it does on burst aorta and road accident. At the same time knowing of the evidence she intends to adduce at as late a point as is possible in the prosecution case, she applies to substitute a charge of murder for manslaughter. At this point the Court and the Defence are totally confused. Not knowing of the new evidence the Court and the Defence believe that the murder charge will not affect the course of proceedings.
121. Then as the prosecution case is about to end, the prosecutor mounts an ambush. The extent of the ambush is still concealed because even at this late stage the prosecutor does not serve a statement of evidence from the pathologist, who only reveals the facts allegedly justifying his change of evidence as true once he is in the witness box before the assessors.
122. The final touch to the ambush is the production of self serving documents in the form of a book and some photocopies which are cursorily placed before the Court and inspected for a few moments. These suspect documents should have been the subject of an enquiry and further evidence. The police witness to the original post mortem is not called to give evidence.
123. The judge allows the evidence in and does not assess its weight. If he had done so, and there was proper enquiry it should have been rejected as having no weight. Then the judge and the prosecution sum up on the basis of the hypothesis of Dr Ponnu Swamy Goundar. This is that the five in a murderous frenzy bash James Nair in the culvert to death by using a blunt instrument or instruments with massive force on his skull.
124. There is no mention of the lack of evidence to connect any of the five with the actus reus as postulated by Dr Ponnu Swamy Goundar as well as the lack of any evidence of the five taking part in a joint enterprise to murder in accordance with the doctor's postulation.
125. Assessors are likely to be deferential to what they assume to be the expertise of the Court and the prosecutor. After the address of the prosecutor to the assessors and the summing up of the learned judge the assessors give a unanimous opinion of "guilty". The learned judge decides that he must convict the four accused of murder. It is not known why his written judgment with reasons is not in the Record. Without it this appeal court cannot state or examine his reasons.
126. I conclude that the new evidence of Dr Ponnu Swamy Goundar was and is completely lacking in credibility and weight.
127. Firstly because of the breakdown of the integrity of the vitally important post mortem system and procedures.
128. Secondly because of its concealment until a point when it could not be critically assessed or investigated.
129. Thirdly because of the production at the last minute of dubious and self serving evidence in support concerning which there was no time or opportunity to investigate.
130. Finally because of the prosecutor's conduct ranged from acts that were misleading to acts that concealed evidence and finally to acts that descended into ambush. What was needed was fair and timeous disclosure required by the law that governs the conduct of criminal trials in Fiji.
131. I have checked many sources including my long experience as trial counsel and I have failed to find any report or case of a later change in the post mortem report evidence rejecting the findings of the autopsy.
132. The matter does not end there because I should list matters that tend to cast doubt on the truth of Dr Ponny Swamy Goundar's evidence and his postulation that James Nair was bashed to death by a blunt instrument or instruments in the culvert.
133. Firstly, there are the factors touched upon in the proceeding paragraphs. In addition it is relevant again to mention that the body is unlikely to be preserved. If so there is no risk in relation to new evidence even if it is untruthful.
134. Secondly, there is the absence of any evidence from Ami Chand, the police witness, at the post mortem on 4th January 2010. His presence was to receive the pathologists opinion so that police could proceed on charges supported by evidence. He did not give evidence when the prosecutor and Dr Ponnu Swammy Goundar changed the prosecution evidence. He was likely on 4th January 2010 to have been told by the pathologist that the cause of death was burst aorta as a result of a road accident. The first post mortem report that is dated 24th February 2010 is too late for necessary police decisions. That is why it would have been Ami Chand's duty to ascertain the position concerning cause of death at the end of the first post mortem.
135. The following appears at page 343 of the Record in the cross examination of Dr Ponnu Swamy Goundar concerning the "notes" he claimed supported his change of view.
"Question: In your notes attached and given to us in the Post Mortem you stated brief clinical history 'jumped off a moving vehicle'?
Answer:This is the history given to me by the Police Officer who attended the Post Mortem Examination, Corp. Ami Chand.
Question: Is the injury sustained be caused by jumping off a moving vehicle?
Answer: In my opinion the injury that has been sustained is not consistent with jumping off the moving vehicle."
If it was Ami Chand's view, a principal purpose of the post mortem must have been whether the physical facts supported or denied the "jumping off" thesis. It would have been the duty of the pathologist to pronounce on the correctness of the "jumping off" thesis and it would be the duty of Corporal Ami Chand to have the pathologist confirm or deny it according to the findings which both pathologist and police witness would have observed.
136. Thirdly there are at the Record page 156 the two photographs of the body at the autopsy showing the open chest. I have discussed these above. It is clearly James Nair if only because the body is wearing the same white with stripes shirt that it was wearing while photographed in the culvert. It would seem not in accordance with the usual procedure for the body to be cut up with the shirt or any other clothes on it. It seems that these two photos were taken to draw attention to the burst aorta being the cause of death and the fact that 3 litres of blood had collected in the left pleural cavity.
137. Fourthly there is the fact that whoever had the duty to record non medical matters such as clothes, once the pathologist started in the never varying order of the external and internal examination, he would have put every item relating to the body being examined in the one set of notes. Comparing the two written reports it is to be observed:
[1] Under the "External Examination" the two findings relating to the head and the chest are word for word, the same in both reports. It is likely that in the first report the exterior chest evidence of subcutaneous haemorreaging of the chest was intended by the writer to refer to being an external sign of the blood that had escaped from the burst aorta.
[2] When it comes to "Marks of violence" it is reported in the first report "There are multiple scratches in contusions on left side involving the scalp, face, neck, shoulder and left upper limb."
There is no reference at all to this in the second report. In the jumping from a moving vehicle situation, these would be expected given that multiple injuries grave and minor from such falls would be the norm. This may account for this items not appearing in the second report where the intent was only to list the head injury and to report that the aorta and the left pleural cavity was normal. If so lesser evidence of a fall from a moving vehicle might fall to be excluded.
[3] When it comes to the internal examinations of "Scalp, Skull and Brains" the words used in a full description are word for word the same in both reports.
[4] Under "Histology" both reports are word for word the same.
[5] In the first report the weight of the liver is 1880 grams while in the second report it is 1140 grams. In the first report the weight of the kidneys was 140 grams and 140 grams. In the second report they are 80 grams and 140 grams. I do not accept that anyone making notes of a post mortem could or would get these notes wrong. One can almost picture the organs on the scales at around the time that the photos of James Nair were being taken. There is no explanation of the many things in the medical report that are word for word the same in both reports. Against that background the weights of the organs would seem to be an attempt to support the story that medical notes of two examinations were unbelievably intertwined. Perhaps the pathologist realised that he had gone too far because neither in chief or in cross examination did he refer to the weights of organs. Perhaps he was hoping it would not be noticed.
[6] Was Dr Ponnu Swamy Goundar a competent forensic pathologist? On time of death he was clearly wrong in both reports. His answers concerning appropriate tests for time of death as well as his knowledge of this important matter were exposed by Mr M Raza. The learned Judge had reservation as to his competence. In his ruling on no case he said:
"I am of the opinion that the acceptance of the [pathologist's evidence of cause of death] in the light of the apparent inconsistencies in the evidence of the pathologist on the estimated time of death is a matter for the assessors to decide."
Was it right to leave it to the assessors? Although the learned judge mentions the pathologist's admission of error on time of death, in general terms the summing up is that of a judge who trusts the bona fides of both prosecutor and pathologist. It seems that the learned judge believed in the facade of incompetence as accounting for and verifying true and credible evidence brought forward at the last minute of the prosecution's case.
[7] The final matter under this head is the self serving post mortem book which was briefly produced in Court.
In antiquity it was always said:
"Beware of the Greeks hearing gifts".
In this case it was a matter of being beware of an incompetent and possibly insecure pathologist bearing alleged proof of his incompetence to establish that once his failures were accepted, he was bringing forward the truth.
Incompetence of the prosecutor leads to inevitable failure of her strategies
138. It seems that the prosecutor was ignorant of the law relating to the legal consequences of formal admissions signed by both Counsel. As we have noted above, on the eve of the trial on 9th June 2010, prosecution and defence counsel signed a document headed "AGREED FACTS".
The sixteenth fact so agreed reads:
"16. It is agreed that the cause of death ... was ruptured aorta as a consequence of a motor vehicle accident."
139. The legislative history in respect of admissions is that criminal trials in the United Kingdom in the mid 20th Century were protracted and lengthy. Almost everything had to be proved by direct oral testimony of the facts. There was in the criminal law of evidence a strict rule of hearsay to which there were some but very few exceptions. Written formal admissions by or on behalf of the accused were not evidence of anything against him at a criminal trial at common law.
140. This was changed by the Criminal Justice Act section 10 of 1967. As relevant, section 10 says:
"(1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant, and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.
(2) ...
(3) An admission under this section for the purpose of proceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial)
(4) An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter."
The same section as section 10 of the Criminal Justice Act 1967 is now in Fiji where at the present time it is section 135 of the Criminal Procedure Decree 2009.
141. As to the withdrawal of admissions the only relevant authority concerns withdrawal by an accused person. Blackstone 2009 at F1.2 refers to this at paragraph F1.2 at page 2312.
"Formal admissions made with the benefit of advice are an important and cogent part of the evidence in a trial. If it is sought to resile from them, leave to withdraw them is unlikely to be given under s.10(4) without cogent evidence from the accused and those advising him that the admissions were made by reason of mistake or misunderstanding (Kolton) [2000] Crim LR 761)."
142. There are no cases of prosecutors seeking to withdraw formal admissions. That is because when they make them they do not intend to change them later. It is also because they are aware that their duty is to conduct a fair trial in accordance with their role as ministers of justice.
143. But in any event the prosecutor in this case intended to mislead the Court and the defence. On 9th June 2010 she well knew that she intended to attempt to prove with evidence an inconsistent cause of death in pursuit of a murder conviction. But she intended admission number 16. She did not make a mistake in agreeing this admission. Nor was there any misunderstanding in her agreeing to make it. There is no evidence at all of either mistake or misunderstanding let alone cogent evidence thereof.
144. In fact the Record shows that at no time during the trial did the prosecutor seek to withdraw admission number 16.
The prosecutor was ignorant of the consequences for the trial if she made a relevant admission. The provision of sub section(1) is very clear. The relevant words are:
"the admission by any party of any fact under this section shall be as against that party be conclusive evidence in these proceedings of the fact admitted."
(emphasis added)
145. Since the learned judge and defence counsel Mr Raza also were unaware of the conclusive nature of this decisive fact, the evidence of a hypothesis of murder based on cause of death sworn to by Dr Ponnu Swamy Goundar was given by him. It should not have been. If a fact is conclusive the prosecutor cannot adduce inconsistent evidence to undermine it. In the absence of any evidence of murder, a no case submission on murder must have been upheld. On manslaughter the no case submission would fall to be argued. However as pointed out above since the arrest and taking of James Nair for interrogation were lawful and the evidence is that James Nair decided at grave risk to himself to jump to escape police interrogation and other consequences there never was any case on manslaughter. In addition, since there was no evidence that any one of the four accused had joined an unlawful joint enterprise, manslaughter must have fallen on a no case submission. The four accused must have been acquitted and released and should have succeeded on costs given the prosecutor's behaviour. Instead there was a miscarriage of justice with four convictions for murder, and sentences of life imprisonment with a recommendation of serving 11 years before being eligible to be considered for parole. By the time this judgment is delivered the four accused will have spent nearly 9 months in jail as convicted murderers. The damage to their reputation as gainfully employed persons of good character in their community and in the wider community is very substantial.
146. I propose allowing the appeals of these four men. This is not a case where the proviso can possibly apply since there has been a very substantial miscarriage of justice. The lack of relevant evidence is also decisive.
147. Nor could a retrial begin to be appropriate where there never was any evidence of murder and where the evidence on manslaughter was such that the Director of Public Prosecutions applying the proper criteria should have declined to prosecute. In respect of murder I am referring both to the conclusive admission and to the fact the pathologist's second evidence on cause of death was incredible, inadmissible and entitled to no weight at all. Even if the pathologists hypothesis was able to be given weight, there is still no evidence on actus reus of murder and joint enterprise and that applies to all four accused. It would not be fair to allow the prosecution to search for new evidence, but in my judgment there is no possible new evidence to be found that could possibly build a case where none ever existed. I propose no order of retrial.
148. Then there is the question of costs. Since section 32(1) of the Court of Appeal Act provides for no costs orders in criminal appellate proceedings there can be no order for costs in respect of this appeal.
149. On the other hand in respect of costs at first instances there is a limited and rarely used power in section 150 of the Criminal Procedure Code. It provides that if the prosecutor either had no reasonable grounds for bringing the proceedings or had unreasonably prolonged the proceedings an order can be made for reasonable costs in favour of an acquitted accused person.
150. While Mr Guy Reynolds Q.C. submits that costs should be awarded in respect of the High Court trial, he does not adequately or convincingly address the issue of whether in criminal cases the Court of Appeal has jurisdiction to award costs in respect of the trial at first instance.
151. In the Court of Appeal Rules, there is Rule 7:
"Application of practice and procedure in England
7. Where no other provision is made by these Rules, or by any other enactment, the jurisdiction, power and authority of the Court of Appeal and the judges thereof shall be exercised –
(a) ...
(b) in criminal proceedings, according generally to the course of the practice and procedure for the time being observed by and before Her Majesty's Court of Criminal Appeal in England."
152. However "practice and procedure" in my judgment cannot include a power to award costs. Nonetheless it is worth looking at the English legislation to see the position there on costs.
153. In England the Criminal Appeal Act 1968 section 24(1), as relevant states:
" Costs, etc.
24.(1) The Court of Appeal may, when they allow an appeal against conviction ... make an order for costs in favour of the appellant.
(2) An order for costs under this section is for the payment ... of such sums as appear to the Court of Appeal reasonably sufficient to compensate the appellant for any expenses properly incurred by him in the case, that is to say – (a) in the prosecution of his appeal, including any proceedings preliminary or incidental thereto; or
(b) in carrying on his defence at assizes or quarter sessions, or before the examining justices who committed him for trial; ..."
154. The English legislation intends defendants costs orders in the Court of Appeal. The legislation avoids a power to simply award costs in the Court below and refrains from endowing the Court of Appeal with the jurisdiction on costs given to the Courts below. Instead it is a direct jurisdiction in the Court of Appeal to award the successful criminal appellant his costs of defending the charges at lower tier hearings.
155. The legislature in Fiji could have followed the English legislation in which case, instead of section 32(1) of the Fiji Court of Appeal Act, the enacted provision would be in pari materia with section 24 of the English Act. Instead the legal policy of the legislature in Fiji clearly expressed in section 32(1), is that there will be no power in the Court of Appeal to award a successful defendant either his costs of the appeal or his costs in the Court below. There is no jurisdiction in this Court to award defendants costs in the Court below, whether under section 150 of the Criminal Procedure Code, or under any other provision.
156. For the reasons stated above this prosecution should not have been brought on manslaughter or continued on murder. However, if there is no jurisdiction to award costs, that is an end of the matter. I propose that there be no orders in respect of costs.
157. The executive may consider that it should take a new look at the post mortem system in order to restore institutional integrity.
158. I conclude by acknowledging the assistance given to this Court by Ms N Ratakele on behalf of the State and by Mr G O'L Reynolds QC for the four appellants. This has been a difficult appeal and their submissions have been dispassionate, objective, and very helpful to the Court. I am grateful also to the DPP who only recently took up her post for indicating that there will not be an appeal by the State to the Supreme Court, which means that this Court need not make arrangements for bail pending appeal.
Daniel Goundar JA
159. I agree the appeals should be allowed for the reasons given by William Marshall JA. I would adopt the orders proposed by William Marshall JA and add the following reasons.
160. In my opinion, the convictions of the appellants are unsafe having regard to the evidence led by the prosecution at the trial. The prosecution led no evidence of an unlawful act by the appellants that caused the death of the deceased, which are essential ingredients of the offence of murder. In this regard, the learned trial judge erred in law in allowing the case to continue after the close of the prosecution case. The appellants were entitled to be acquitted after the close of the case for the prosecution, there being no evidence that they committed any offence. In my mind a miscarriage of justice has occurred in this case.
161. While I am sceptical about the conduct of the trial prosecutor Ms Cokanasiga, and the evidence of expert witness, Doctor Ponnu Swamy Goundar who at the trial appeared to have tailored his testimony to suit the prosecution's theory of how the deceased may have died, I make no adverse finding of professional misconduct against them. At this stage, I do not have the full facts to make an adverse finding. In any event, I am not inclined to make such finding without affording Ms Cokanasiga and Doctor Goundar an opportunity to be heard.
162. It is an essential component of due process that a person is accorded an opportunity to be heard before an adverse finding is made against him or her. Due process applies to all levels of judicial proceedings. In my view, both Ms Cokanasiga and Doctor Goundar are entitled to those safeguards which are the cornerstone of our legal system.
163. The appellants seek an order for costs against the prosecution.
164. An order for costs in criminal cases can only be made if expressly permitted by the Statute. Criminal appeals to the Court of Appeals are brought under the Court of Appeal Act. The Court of Appeal is created by the Court of Appeal Act and the powers of the court are derived from that Act. Section 32(1) of the Court of Appeal Act expressly precludes awards of costs to either party in a criminal appeal.
165. A costs order, of course, can be made by the High Court or the Magistrates' Court under section 150 of the Criminal Procedure Decree. When there is an appeal against refusal of costs in favour of an acquitted defendant against the prosecution at the trial court, the Court of Appeal upon concluding the trial court made an error in refusing to award costs, can award costs which the appellant defendant would have been entitled to at the trial court. The costs awarded are for the proceeding in the trial court and not for the proceeding in the Court of Appeal.
166. In the present case, section 32(1) of the Court of Appeal Act expressly precludes awards of costs to the appellants even in the case where their convictions are being quashed.
Paul Madigan JA
167. I agree that the appeal should be allowed for the reasons given. The convictions of all four accused should be overturned and the sentences quashed.
168. It is quite obvious from the facts of the case as set out in William Marshall JA's judgment in paragraphs 20 to 28 inclusive 36 and 37, that there was absolutely not one iota of evidence to support a charge of manslaughter, let alone murder.
169. I refuse to be drawn into speculation as to what might have been going through the victim's mind at the time of his "captivity" or as to why he would have jumped from the tray.
170. There being no unlawful act in evidence, nor any real circumstances which would even suggest an act, the learned trial Judge should never have allowed the case to proceed at the end of the prosecution case.
171. The provenance of the "re-thought" spurious post mortem report is dishonourable. It does no credit to the Pathologist who was "persuaded" to change his reasons for the cause of death, and discount falling from a moving vehicle as a possible cause of death. The new cause of death being from multiple fractures of the skull could not possibly have been missed at the original autopsy.
172. I must allow the criticism of the conduct of the prosecution to a large degree, but the responsibility cannot be allowed to rest on her shoulders alone. Fault can be laid at the doors of the defence counsel, the pathologist, the judge and the then DPP.
173. This case can be seen perhaps as the nadir of the exercise of a DPP's discretion to prosecute, but then it should not cast an indelible stain on the integrity of the DPP's Office. We see hundreds of cases pass through the Courts every year which are confidently, ably professionally and fairly prosecuted by the men and women of the Office of the DPP.
William Marshall JA
Orders of the Court
174. The orders of this Court are:
(1) The appeals of Zafir Tarik Ali, Taimur Ali, Zahir Ali and Chandlesh Ganesh against conviction for murder be allowed.
(2) Zafir Tarik Ali, Taimur Ali, Tahir Ali and Chandlesh are acquitted of the charge of murder.
(3) The convictions and sentences for murder of Zafir Tarik Ali, Taimur Ali, Zahir Ali and Chandlesh Ganesh delivered on 7th July 2010 and 9th July 2010 in the High Court by the Honourable Mr Justice Priyantha Fernando be set aside and quashed.
.....................................................
Hon. Justice William Marshall
Justice of Appeal
................................................
Hon. Justice Daniel Goundar
Justice of Appeal
...................................................
Hon. Justice Paul Madigan
Justice of Appeal
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