Vulaca v State - Majority Judgment [2011] FJCA 39; AAU0038.2008 (29 August 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

Criminal Appeal No: AAU0038/08

BETWEEN:

1. LOLE VULACA
2. RUSIATE KOROVUSERE
3. PITA MATAI
Appellants

AND:

THE STATE
Respondent

Coram: Hon. Justice Daniel Goundar
Hon. Justice Sosefo Inoke
Hon. Justice Salesi Temo

Hearing Dates: 18 March & 8 June 2010

Counsel: Mr. I. Khan and Mr. K. Maraiwai for Appellants
Ms S. Puamau & Ms N. Wickramasekera for State

Date of Judgment: 29 August 2011

MAJORITY JUDGMENT OF GOUNDAR JA & TEMO JA

Background

[1] Following a trial in the High Court, the first and the second appellants were convicted of murder on the majority opinions of assessors and were sentenced to imprisonment for life. The third appellant was convicted of accessory after the fact to murder on the unanimous opinions of assessors and was sentenced to 2 years imprisonment.

[2] All three appellants were police officers at the time of the offences. On the charge of murder, five other police officers, who were jointly charged with the first and the second appellants, were acquitted.

[3] The appellants thereupon appealed against both conviction and sentence.

Evidence

[4] The State's case rested entirely on circumstantial evidence. The charges arose from the death of Tevita Malasebe, a thirty year old man who was arrested from his home in Newtown on the midnight of 4 June 2007 by police officers on allegation of a robbery. The deceased's mother accompanied by her two other sons later went to the Valelevu Police Station where the deceased was taken. There was no evidence that the deceased had resisted arrest or had injuries to his body before he was taken into custody.

[5] In the early hours of 5 June 2007, the deceased was found unconscious inside the Crime Office at the station with visible injuries to his body. He was transported to the Colonial War Memorial Hospital in a police vehicle. He was pronounced dead upon arrival at the hospital. Post mortem examination revealed that the deceased died of shock and internal hemorrhage, due to multiple bruises as a complication of multiple blunt impacts. The pathologist gave evidence that the injuries found on the deceased were suggestive of blunt trauma leading to systematic shock.

[6] The evidence against the first appellant was that he led the team of police officers who raided the deceased's home, after a briefing at the station. He assured the deceased's mother that the deceased would not be assaulted at the station. At the station, he was seen escorting the deceased to the Crime Office.

[7] There was some evidence that the appellant was present at the station throughout the night. The following morning he was one of the two police officers who transported the deceased to the hospital. He was identified by the nurse who received the deceased at the hospital. He told the nurse that he was instructed to bring the deceased to the hospital on the way to court. The identity of the deceased was withdrawn from the nurse. She had to call the station to ascertain the deceased's name.

[8] In his caution interview, to which there was no objection at the trial, the first appellant stated that when he returned to the station, he handed over the deceased and went and slept in a police vehicle for a while, and then went home.

[9] The evidence against the second appellant was that he was one of the police officers involved in the arrest of the deceased. The deceased's mother identified him as one of the officers who was present at the station at about 1am when she went to visit her son. The following morning, the second appellant was seen cleaning the Crime Office of the faeces and urine on the floor, wearing hand gloves. He was the second officer who had accompanied the first appellant to the hospital with the deceased. Evidence was led that he lied to the hospital staff about the identity of the deceased saying they found him lying somewhere.

[10] In his caution interview, the second appellant said that after the arrest of the deceased, he remained at the station for 30 minutes, after which he reported off duty and went home.

[11] The evidence against the third appellant was that he instructed the deceased to be locked up in the cell when he arrived at the station on 4 June 2007. He also instructed the deceased to be interviewed the next day. When he returned to the station the next day, he instructed the deceased to be taken to the hospital. The prosecution relied upon circumstantial evidence to prove that the third appellant knew that the deceased was assaulted at the station and that he assisted the perpetrators to escape detection by ordering the removal of the body from the crime scene.

[12] The third appellant's defence was that he did know that a crime had been committed and that he did not assist the perpetrators to escape investigation.

[13] At the trial, the appellants and their co-accused elected to remain silent.

Grounds of Appeal

[14] The original grounds of appeal filed on 2 May 2008 were later substituted with amended grounds of appeal. The legal submissions were confined to the following amended grounds of appeal:

(A) That the learned trial judge erred in law and in fact in not adequately directing/misdirecting the assessors on law regarding the charge of murder.

(B) That the learned trial judge erred in law and in fact in not adequately directing/misdirecting the assessors on law regarding accessory after the fact to the murder.

(C) That the learned trial judge erred in law and in fact in not adequately directing/misdirecting on the law on circumstantial evidence.

(D) That the learned trial judge erred in law and in fact in not adequately directing/misdirecting on the law on joint enterprise.

(E) That the learned trial judge erred in law and in fact in not adequately directing/misdirecting that the prosecution evidence before the court proved beyond reasonable doubts that there were serious doubts in the prosecution case and as such the benefit of doubt ought to have been given to the appellants.

(F) That the learned trial judge erred in law and in fact in not directing the assessors that if they are not satisfied beyond reasonable doubt on the charge of murder (that the appellants had no intent) then they could also consider the charge of manslaughter; and by failing to direct the assessors on the charge of manslaughter, there was a substantial miscarriage of justice.

(G) That the learned trial judge erred in law and in fact in not adequately directing the assessors the significance of prosecution witnesses conflicting evidence during the trial.

(H) That the defence counsel erred in conducting the trial to the extent that such errors affected the outcome of the trial and contributed to a miscarriage of justice.

(I) That the learned trial judge erred in law and in fact in not taking into account that the appellants did not and were not able to make free choice in exercise of their legal rights to give evidence in trial proper because their counsel assured them that the appellants need not do so and that the appellants must not give evidence in trial proper. The decision and/or advice to the appellants by their counsel and appellants' acceptance of such decision of their counsel and advice deprived the appellants of having their evidence heard and considered in trial proper.

(J) That the appellants' trial counsel in advising the appellants to remain silent and which advice were accepted by the appellants amounted to the incompetence of the appellants' trial counsel.

(K) That the appellants' appeals against sentence being manifestly harsh and excessive and wrong in principle in all the circumstances of the case.

(L) That the learned trial judge erred in law and in fact in taking irrelevant matters into consideration when sentencing the appellants and not taking into relevant consideration.

[15] Before we deal with the grounds of appeal, we must express our disapproval that grounds should be drawn with such vagueness as we find in the present case. Appellate courts have always stressed that particulars must be given in the grounds of appeal. If misdirection is complained of, it must be stated whether the alleged misdirection is one of law or fact, and its nature must also be stated. If omission is complained of, it must be stated what is alleged to have been omitted. It is not only placing an unnecessary burden on the Court to ask it to search through the summing up and the transcript of the evidence to find out what there may be to be complained of, but it is also unfair to the prosecution, who are entitled to know what they have to respond to. We hope that it will not again be necessary to point out a similar inadequacy in grounds of appeal.

Inadequate/misdirection on the charge of murder

[16] Under this ground, two errors are alleged. The first error alleged is that the learned trial judge did not make it clear to the assessors that there was no evidence of intention or malice aforethought. The second error alleged is that the learned trial judge failed to define malice aforethought in accordance with section 202 of the Penal Code.

[17] Malice aforethought is the mens rea for murder. Section 202 of the Penal Code (now repealed) defines malice aforethought as follows:

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

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

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

[18] There are three limbs to the definition. The first limb is an intention to kill. The second limb is an intention to cause grievous harm. The third limb is knowledge that death or grievous harm will occur but that knowledge is accompanied by indifference as to whether death or grievous harm is caused or not, or by wish that it may not be caused.

[19] Proof of any one of the limbs will suffice to convict for murder. The State relied upon the nature and the extent of injuries found on the body of the deceased to prove either the second or the third limb of malice aforethought.

[20] The learned trial judge directed the assessors on the malice aforethought as follows:

"The third element of the offence of murder is malice aforethought. The term is misleading because it suggests premeditation. That is not what malice aforethought means. The term is defined by our Penal Code to mean either –

1) an intention to cause death or grievous harm to another person; or

2) knowing that the act done by the accused will probably cause death or grievous harm, even if the accused is indifferent or doesn't care whether death or grievous harm will be caused or not."

[21] Later, the learned trial judge said:

"Of course no one can really say what is in a person's mind. Only that person can know for sure. However, we all know that a person's conduct or behavior can be evidence of a person's intention. For this reason, it is open to you to deduce or infer what was in the accuseds' minds in the circumstances, from the conduct of each. In this case you must ask yourselves whether, the injuries on Malasebe were inflicted either with intention to cause death or serious harm, or with indifference or recklessness as to the serious harm caused."

[22] We find no error in the direction of the learned trial judge on malice aforethought. Clearly, the direction is in accordance with the law on malice aforethought as defined by the Penal Code. This ground fails.

Inadequate/misdirection on accessory after the fact
[23] This ground alleges that the learned trial judge did not fairly direct the assessors that the charge of accessory after the fact required knowledge that an offence was committed and that mere presence at the crime scene is not indicative of that knowledge.

[24] In her summing up, the learned trial judge first directed the assessors on the elements of accessory after the fact:

"In relation to the 8th Accused, Pita Matai, the prosecution does not allege that he was a party to murder. The 8th Accused is charged under section 388 of the Penal Code. That section says that a person who assists another, who is to his knowledge, guilty of an offence, in order to enable him to escape punishment, is an accessory after the fact to the offence. The elements of the offence are:

1. The Accused

2. Assisted another

3. Who to his knowledge had committed an offence

4. In order to assist him/her to escape punishment."

[25] In relating the elements to the issue of knowledge, the learned trial judge said:

"In this case the defence disputes all of these elements. The defence says that Pita Matai did not assist anyone to escape punishment, nor did he know that an offence had been committed. So you must consider the evidence in relation to each element of offence carefully. What I have said about circumstantial evidence applies also to the prosecution case against the 8th Accused. However, for the purpose of this offence, you must be satisfied beyond reasonable doubt that the 8th Accused gave active assistance to those whom he knew had committed an offence before you can find him guilty on Count 2."

[26] In our judgment, the direction of the learned trial judge is correct and adequate. The assessors were clearly directed on all the essential elements of accessory after the fact to murder and that there was no need for a direction to the effect that mere presence at the scene was indicative of guilty knowledge.

[27] The prosecution case was that the third appellant directed the removal of the deceased's body from the Crime Office because he knew the suspect had died at the hands of his junior police officers and the purpose of the removal of the body was to prevent detection of a crime. The third appellant accepted that he gave the direction to remove the suspect but he did not know that the suspect had died in the Crime Office. In these circumstances, no issue arose as to whether the third appellant was an innocent bystander at the crime scene requiring a direction to that effect. This ground fails.

Inadequate/misdirection on circumstantial evidence
[28] The first error alleged is that the learned trial judge failed to direct the assessors that before they convict on circumstantial evidence, they must be satisfied not only that the circumstances are consistent with the appellants having committed the offence but also that the facts proved are such as to be inconsistent with any other conclusion.

[29] The second error alleged is that the learned trial judge failed to direct the assessors on facts that were favourable to the appellants in terms of showing they were innocent.

[30] As stated earlier, the case against the appellants was entirely based on circumstantial evidence. In her summing up, the learned trial judge acknowledged the need to direct the assessors on circumstantial evidence and did so direct the assessors as follows:

"A case of circumstantial evidence relies on a variety of sources of evidence. One example of how it works is this. One day you find your house broken into. The items stolen are clearly identifiable by you because you have put your initial on your DVD and TV screen. The day after the burglary, your DVD and TV screen with your initials are found inside your neighbour's house. His son is seen to be spending a lot of money at Traps Bar. His fingerprints are found on your kitchen door. On the basis of all this evidence, you are entitled to draw a reasonable inference that your neighbour's son committed the burglary in your house, because there is no other reasonable inference that you can draw from the evidence which is consistent with the son's innocence. However, if for instance you did not initial the stolen items and cannot be sure that these items in your neighbour's house is yours, and if there are no fingerprints found then the evidence of the neighbour's son's spending would not be sufficient for you to draw an inference of his guilt. This is because there are other possible reasonable hypotheses and for his sudden wealth.

Therefore, with circumstantial evidence you must look at all the evidence together and ask yourselves whether the only reasonable inference you can draw from the evidence is the guilt of the accused. You must ask yourselves whether there can be any other explanation for the evidence which is also consistent with the accused's innocence. That is the law on circumstantial evidence."

[31] In Senijieli Boila v The State Criminal Appeal No. CAV005 of 2006S (25 February 2008) the Supreme Court observed that no special directions are required of a trial judge in directing on the use of circumstantial evidence. The Supreme Court said at paragraph 5:

"What is required is a clear direction that the tribunal of fact must be satisfied of the guilt of the accused beyond reasonable doubt (McGreevy v Director of Public Prosecutions [1973] 1 WLR 276, applied Kalisoqo v R Criminal Appeal No. 52 of 1984). See also R v Hart [1986] 2 NZLR 408. The adequacy of a particular direction will necessarily depend on the circumstances of the case."

[32] Towards the end of the summing up, the learned trial judge reminded the assessors of the use they can make of the circumstantial evidence:

"Remember that in considering circumstantial evidence you must be satisfied beyond reasonable doubt that the only reasonable inference available to you is the guilt of the Accused before you can find them guilty. If you find that there are other reasonable inferences you can draw which are consistent with the Accused's innocence or if you have a reasonable doubt about it, then you should find each not guilty."

[33] We have considered the learned trial judge's direction on circumstantial evidence. The assessors were clearly directed that they can only convict on circumstantial evidence if the only reasonable inference they can draw from the evidence was the guilt of the appellants and that there was no other explanation for the evidence that was consistent with the appellants' innocence. We find no error in the learned trial judge's direction on circumstantial evidence.

[34] Under this ground a complaint is also made against the learned trial judge's decision to allow first time dock identification of the second appellant by the deceased's mother.

[35] The decision to allow the dock identification was within the discretion of the trial judge. The circumstances under which the deceased's mother identified the second appellant were not fleeting. The witness had seen the second appellant on two occasions under good lightening conditions, first at the station and then at the hospital. We agree with the learned trial judge's conclusion that the inherent dangers of identifying one accused in the dock was diminished in the present case because there were eight men in the dock. No error has been shown in the learned trial judge's exercise of discretion to allow dock identification of the second appellant by the deceased's mother. This ground fails.

Inadequate/misdirection on joint enterprise

[36] The first complaint made under this ground is that the learned trial judge failed to direct in accordance with the definition of joint enterprise as defined by the Penal Code. The second complaint made is that the learned trial judge failed to direct on the pieces of evidence which the defence rebutted or contradicted to cast doubt on joint enterprise.

[37] The learned trial judge in her summing up gave detailed directions on joint enterprise as defined by the Penal Code. Those directions were as follows:

"In law, the person who actually delivers the fatal blow in a murder case, is not the only person who is guilty of the murder. Anyone who aids or abets the principal offender, anyone who counsels or procures or advises the principal offender is also guilty of murder. Furthermore, when two or more persons get together and form a common intention to do something unlawful together and in the course of doing that unlawful act, another offence is committed which is a probable consequence of the planned offence, then each of those who are part of the plan is also guilty of the resulting offence, even if he or she did not do the act which actually constitutes the offence.

Let me give you an example. If a group of men plan to commit a robbery carrying firearms, and in the course of the robbery the security guard guarding the premises gets shot by one robber, all the robbers are guilty of his murder even if they did nothing to actively contribute to the murder. So the robber standing guard outside and who never enters the premises is guilty of murder as well as the robber who actually fired the shot. This is because when you commit an armed robbery, it is a probable consequence of that common intention that someone will get shot and be seriously injured or killed. This is the doctrine of joint enterprise.

In this case the prosecution says that all accused persons were part of a common intention to bring Tevita Malasebe to the Valelevu Police Station to assault him prior to his interrogation. The prosecution's case is that all the accused either actively assisted in this plan or did nothing to stop the assault which, as police officers, they had a duty to do in law, and that the death of the deceased as a result of the assault was a probable consequence of that planned assault for which each Accused 1 to 7 must be responsible for. In considering whether or not there was a joint enterprise involving each accused in this case, ask yourselves:

1) Was there a joint common intention to bring Malasebe to the station to assault him?

2) Was each of the accused in the dock party to that common intention?

3) Was the death of Malasebe as a result of the assault, a probable consequence of the assault?

In considering these questions, you may look at all the circumstances of the case as led in the evidence."

[38] After directing on the pieces of evidence that the prosecution relied upon to prove joint enterprise, the learned trial judge directed on the defence position on the issue:

"The defence position is, as I have described it, that the Accused were not at the scene, were not part of any joint enterprise and that all the evidence relied upon by the prosecution was done openly and not with any intent to hide evidence."

[39] The assessors were clearly directed that they had to be satisfied that the death of the deceased was a probable consequence of a planned assault on him in which the first and the second appellants participated. In our judgment the direction on joint enterprise was adequate and was a correct statement of law. This ground fails.

Inadequate directions on serious doubts arising from the prosecution case

[40] Under this ground the main complaint made is regarding the inconsistencies in the evidence of the witnesses for the prosecution.

[41] Of course, in any trial, there would be inconsistencies in the evidence for various reasons. It is only when a witness has given a previous inconsistent statement on a material issue before the court; the trial judge is obliged to give special direction on the credibility of that witness and to approach his or her evidence with caution. We have considered the inconsistencies highlighted to us by the appellants and found none to be material affecting the guilty verdict in this case. This ground fails.

Failure to direct on manslaughter

[42] The complaint is that the learned trial judge failed to direct the assessors on the alternative verdict of manslaughter on the charge of murder.

[43] Manslaughter is considered a lesser offence of murder. If there is an evidential foundation for any possible verdict of manslaughter then the trial judge is obliged to direct the assessors accordingly (Vidali Yaba v The State Criminal Appeal No. CAV0003 of 2006 (25 February 2008)). In the present case no evidential foundation existed for a possible verdict of manslaughter. In relation to the first and the second appellants, the only possible verdict that was available on the evidence was either guilty of murder or not guilty of any offence. This ground fails.

Inadequacy of trial counsel

[44] We deal with the remaining grounds as one complaint. The complaint is that the trial counsel incorrectly advised the appellants to remain silent and not to call any evidence.

[45] There exist an assumption that legal practitioners, representing a person at trial will exhibit competence in their knowledge of the relevant law, awareness of applicable procedures and judgment in the forensic decisions that have to be made (Nudd v The Queen [2006] HCA 9 (9 March 2006)). An appellate court will only interfere with a conviction on the ground that counsel had not conducted the case properly if it is satisfied that the manner in which it was conducted in court amounted to flagrant incompetence or in any other way it was such that there had been a miscarriage of justice (Lasarusa Rakula v The State Criminal Appeal No.AAU0018 of 2004S (26 November 2004)). It will not regard the fact that counsel has taken a course of conduct which later appeared to have been mistaken or unwise as a significant ground of appeal (Ensor v R [1989] 89 Cr App R 139).

[46] The right to remain silent was one of the fundamental rights that were available to the appellants. The appellants also had a right to give evidence. Counsel was obliged to advise the appellants of their rights and he did so in accordance with his professional obligation. There is no suggestion that counsel failed in his duty in that regard. At the trial, all eight accused persons elected to remain silent. Five of them were acquitted.

[47] Clearly, the appellants competently and intelligently elected to remain silent on the advice of counsel, and it is a course that the appellants now regret after the conviction. In our judgment, the appellants' decisions to remain silent cannot be attributed to the conduct of counsel to give rise to a miscarriage of justice. This ground of appeal fails.

Appeal against sentence

[48] Although the appellants have appealed against their sentences, they have not advanced any submissions on the grounds. The sentence for murder is fixed by law, and therefore, no appeal can lie against the sentence (see, s. 21 (1) (c) of the Court of Appeal Act). The sentence of 2 years imprisonment for accessory after the fact for murder imposed on the third appellant was within the range and no error has been shown in the sentence. The grounds of appeal against sentence fail.

Result

[49] The appeals are dismissed.

Hon. Justice Daniel Goundar
Judge of Appeal

on. HonHon. Justice Salesi Temo
Judge of Appeal

Solicitors:
Messrs. Iqbal Khan & Associates for Appellants
Office of the Director of Public Prosecutions for State