Vulaca v State - Dissenting Judgment [2011] FJCA 40; 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

DISSENTING JUDGMENT OF INOKE JA

Introduction

[1] I have read the joint judgment of my senior brothers Mr Justice Goundar and Mr Justice Temo and I agree with their criticisms of the drafting of the grounds of appeal in this appeal. I also agree with the dismissal of this appeal on all grounds except for the ground of inadequacy of the learned trial Judge’s direction on joint enterprise. I am also of the view that the verdict in this case was perverse and should not be allowed to stand.

[2] It is with the greatest of respect that I have to differ with my learned senior brothers on the outcome of this appeal. But I feel compelled to do so because I think there has been a serious miscarriage of justice by the inconsistent verdicts that two co-defendants (the first and second appellants) were guilty of murder by joint enterprise whilst the other five co-defendants were not. The inconsistency showed that the assessors had misunderstood the learned trial judge’s directions on the law.

The Evidence

[3] I take the evidence against the first and second appellants as stated in my learned brothers’ joint judgment in paragraphs 6 to 10. The evidence against the third appellant is in paragraph 11.

[4] I will first deal with the appeal by the first and second appellants.

The Ground of Appeal: Adequacy of the summing up/direction on joint enterprise

[5] I must say straight away that the death of an accused person whilst in police custody cannot be condoned under any circumstances. And when that happens, and usually under highly publicised and emotionally charged circumstances as this case was, a concerted effort is made to find, convict and punish someone for the death in custody. But, as in all cases, such well-intentioned efforts must be made and the quest pursued fairly and justly in accordance with the law.

[6] One of the extraordinary features of this case was the fact that the verdict was “split”, that is to say, that not all of accuseds were found guilty by joint enterprise. That fact alone would not have been sufficient for the appellants to succeed. In the “normal case” where all accuseds are found guilty of an offence by joint enterprise, such a direction as in this case would have been wholly sufficient and could not be faulted. Indeed, as it was the prosecution case, this was a case of simply “all in or all out” with no room for anything in-between and I can fully understand why the directions in the summing up were on that basis.

[7] With the benefit of more time for reflection and consideration, I have, with the greatest of respect, come to the conclusion that a combination of the split verdict and the paucity of the evidence against the appellants showed up a fundamental flaw in an otherwise faultless summing up. I will first deal with the evidence against the two appellants.

The paucity of evidence

[8] The assessors by a majority found, and the learned trial judge upheld their verdict, that five of the accused joint enterprisers were not guilty but two of them, the first and second appellants in this appeal, were guilty of the charge of murder by joint enterprise. For that to be correct at law, the evidence must be such that those two appellants committed all of the elements of the offence. That is to say, more precisely, the prosecution proved beyond reasonable doubt that one or both of them struck a blow which led to the fatality. Was that the case here?

[9] I will first refer to the learned trial Judge’s sentencing remarks at page 2 (page 10 of Vol 1 of the Record) with regards to the evidence against the first and second appellants which were:

“The evidence against you was that of secondary offenders, that is, that you were part of a joint enterprise to assault (the victim). There was no evidence that either of you inflicted any of the assaults yourselves. It is impossible in these circumstances to apportion responsibility to either offender. (My underlining)

[10] I have to agree with the learned trial Judge’s assessment of that evidence. It is quite impossible, in my opinion, as a matter of law, to hold that the circumstantial evidence against the first and the second appellants was such that the only reasonable inference was that they, either singularly or co-jointly, committed all of the elements of the offence, in particular, the actus reus element of the offence of murder. Being present at the “station” and a passing presence in the “crimes office” could not have been sufficient evidence to support an inference that one or both of them struck a blow, let alone the blow or blows that led to the victim’s death.

[11] Mere presence, though not sufficient, may be capable of constituting encouragement. But to amount to encouragement to commit an offence, there must be proof of actual encouragement and awareness of that fact: see Blackstone’s Criminal Practice 2011, para A5.13. There must be active participation with knowledge: Wilcox v Jeffery [1951] 1 All E R 464. Mere passive acquiescence is sufficient only where the alleged aider and abettor has the power to control the offender and is actually present when the offence is committed: per Slade J in National Coal Board v Gamble [1959] 1 QB 11, 25. The evidence in this case fell far short of such proof.

[12] Putting it in another way, if the two appellants were the only ones charged in this case, it would not have been permissible to convict them on the evidence because the actus reus element of murder could not be proved against them.

[13] That leads to the inevitable conclusion that one or more of the five accuseds that were acquitted, struck the blow or blows that led to the victim’s death. In other words, the primary offender or offenders have been acquitted.

[14] There can be no conviction for aiding, abetting, counseling or procuring an offence unless the actus reus of the substantive offence is shown to have occurred: Archibold’s Criminal Pleading, Evidence and Practice 2011, para 18-30. The rationale for the rule was explained in R v Kenning [2008] EWCA Crim 1534; [2009] QB 221, 226 as follows:

“18 The course of conduct to which the would-be aiders and abettors agree will ex-hypothesi, involve their performing acts that are no more than accessory to the offence intended to be committed by the primary offender. If they do all those acts, they will not amount to an offence unless the primary offender commits the primary offence. There can be no certainty that he will do so. Thus, even if the aiders and abettors do all that they agree to do, their course of conduct will not necessarily amount to the commission of an offence. This result is not surprising. It would be odd if it was an offence to conspire to aid and abet, although no offence to attempt so to do.

[15] It is true that a co-defendant in a joint enterprise could be convicted of murder even though the principal offender was acquitted of murder but convicted of the lesser charge of manslaughter, as was held in Hui Chi-Ming v The Queen [1921] 1 AC 34 (PC). But that case can be distinguished from the present case for three reasons. Firstly, all co-defendants in that case were convicted of manslaughter, except for one at the direction of the judge. Secondly, there was ample evidence to support the charge of murder against the co-defendant. And thirdly, the co-defendant was tried separately from the principal offender and it was inevitable that two juries will on occasion return verdicts which appear to be inconsistent with one another.

The inconsistent verdicts

[16] In Mackenzie v R [1996] HCA 35; (1996) 190 CLR 348; (1996) 141 ALR 70; (1996) 71 ALJR 91 (3 December 1996), Gaudron, Gummow and Kirby JJ, in a joint judgment, stated several general propositions of law on inconsistent verdicts. I set them out in full for completeness:

“From a review of the cases, a number of general propositions can be stated:

1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence[24] or of being, in respect of the same property and occasion, both the thief and the receiver[25]. There are other like cases[26]. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.

2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately. Thus in R v Rowley[27] the appellant was convicted after a plea of guilty. The principals in the offence were later acquitted after a trial. The appellant gained an order quashing his conviction. Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of "differences in the evidence presented at the two trials" or "the different views which the juries separately take of the witnesses"[28].

3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone[29] is often cited as expressing the test[30]:

"He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."

4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense[31]. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted[32]. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury[33]. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt[34]. Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries[35]. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation[36]. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman[37], in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:

"[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."

We agree with these practical and sensible remarks.

5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty[38]. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law[39]. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside[40]. It is impossible to state hard and fast rules. "It all depends upon the facts of the case".

6. The obligation to establish inconsistency of verdicts rests upon the person making the submission[41]. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case.

[17] Applying these principles to the present case I think the verdicts in this case are inconsistent, both on the face of the record and on the evidence. The verdict against the two appellants is an affront to logic and commonsense and must be set aside.

The summing up and directions

[18] It is obvious to me that the assessors misunderstood the trial judge's directions on the law on joint enterprise and a serious injustice has resulted. I think the directions to the assessors should have included a statement to the effect that if they found only some of the accuseds were guilty of murder by joint enterprise, they must be satisfied that the only inference that could be drawn from the evidence against those accuseds was that they committed all of the elements of the offence either jointly or severally. In this respect, I think the summing up and direction on joint enterprise is inadequate.

[19] From the passage of the summing up cited by my learned brothers at paragraph 37 of their judgment, it is implicit that the assessors were directed to find beyond reasonable doubt that at least one of the persons found guilty of murder by joint enterprise threw the fatal blow. I do not think the assessors understood or appreciated the point.

[20] The summing up and directions could not be overly criticised because, as I have alerted to earlier and the learned trial judge observed, that "the prosecution case was run on the basis that all of the accuseds were part of a common intention to bring (the victim) to the police station to assault him prior to his interrogation". The first and second appellants were part of the group that went to the victim's home and brought him to the station. They were the only two officers that took the victim to the hospital. They were singled out at the trial to be "closely linked" to the victim. I think the assessors literally followed the learned trial Judge's above observation and direction that:

"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 (the victim) to the station to assault him?
   

[21] It was a quest to convict someone and the appellants were the ones.

[22] For the above reasons, it is my respectful opinion that the verdict against the first and second appellants is perverse and must be set aside. I would allow their appeals.

The appeal by the third appellant

[23] The evidence against the third appellant, in my respectful opinion, is very weak.

[24] Further, for the reasons and the conclusions that I have reached in respect of the first and second appellants, the appeal by the third appellant should also succeed.

Conclusions

[25] I would allow the appeals and set aside the judgement of the High Court and quash the convictions. As to whether they should be re-tried, that should be left for full argument at a later time. In the interim, the appellants should be released from custody forthwith because I think a strong case could be made for acquittal rather than re-trial because of the likelihood of serious prejudice against them.

Hon. Justice Sosefo Inoke
Judge of Appeal

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