Mohammed v State [2013] FJCA 12; AAU0002.2010 (15 February 2013)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: AAU0002 of 2010

BETWEEN:

SHEIK MOHAMMED
Appellant

AND:

THE STATE
Respondent

Coram: Goundar JA
Temo JA
Kumararatnum JA

Hearing: 7th February 2013
Counsel: Mr. A. Kohli for the Appellant
Ms. N. Tikoisuva for State

Date of Judgment: 15th February 2013

JUDGMENT OF THE COURT

GOUNDAR JA:

Background

[1] The appellant was tried in the High Court at Labasa on the following charge:

COUNT 1

Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUG: Contrary to Section 5(a) of the Illicit Drugs Control Act No. 9 of 2004.

Particulars of Offence

SHEIK MOHAMMED s/o HUSSEIN on the 6th day of June 2008 at Natua, Seaqaqa in the Northern Division without lawful authority possessed 4,833.7 grams of Cannabis Sativa, an Illicit Drug.

[2] A second charge of unlawful transportation of illicit drug was withdrawn by the State before the commencement of the trial.

[3] On 15 October 2009, the appellant was convicted and sentenced to 10 years' imprisonment.

[4] The main evidence against the appellant was his confession made to the police under caution. The trial judge admitted the confession in evidence after holding a voir dire. At the trial, it was not in dispute that 4,833.7 grams of Cannabis Sativa was found concealed in a vehicle registered under the name of Masha Bi. Masha Bi was the appellant's sister. In his caution interview, the appellant admitted that he had bought the vehicle from his sister but had not filed for transfer of ownership at the Land Transport Authority. The appellant gave a detailed account of how he organized the concealment and transportation of the charged illicit drug from Viti Levu to Labasa, Vanua Levu. He intended to sell the drug in Labasa.

[5] On 13 November 2009, the appellant filed his Notice of Appeal, to appeal against conviction and sentence on the following grounds:

1. That the Learned Trial Judge erred in law when he failed to hold that the appellant's confession taken or obtained through assault, threat, trick and/or that the confession was obtained without consent in breach of his rights under section 27(3)(d) of the 1997 Constitution and further failed to allow the Appellant a right to reply to the submission of the State.
   
2. That the Learned Judge erred in law when he failed to hold that there was no independent evidence to support the confession and when the Police Officers admitted that the Appellant was telling lies to them.
   
3. That the Learned Judge erred in law when he allowed the statement of the accomplice Aiyaz Ali taken before he was charged and after he was charged with the same offence as the Appellant to be tendered in evidence and handed to the assessors despite the objection from the Appellant's counsel.
   
4. That the Learned Judge erred in law when he ordered the assessors to return the above two statements of the accomplice Aiyaz Ali after the assessors were in possession of the same for 34 days.
   
5. That the Learned Judge erred in law in that:
   
   • (a) He allowed the prosecutor to make an application to declare Mashi Bi as a hostile witness in front of the assessors.
     
   • (b) That the Learned Judge declared Mashi Bi as hostile witness without allowing the defence the right to make the submission.
     
   • (c) Erred in law regarding the procedure in declaring a witness hostile.
     
6. That the Learned Judge erred in the principal (sic) of sentencing when he sentenced the Appellant to 10 years imprisonment on the request of the learned prosecutor without taking into consideration all the mitigating factors.
   

[6] Section 21(1)(b) of the Court of Appeal required the appellant to obtain leave to appeal on the grounds that raised a question of fact alone or a question of mixed law and fact. Section 21(1)(c) of the Act required the appellant to obtain leave to appeal his sentence.

[7] On 2 July 2010, the application for leave pursuant to section 21(1) was heard by Byrne Acting P. Mr. Kohli represented the appellant at this hearing. On 14 July 2010, Byrne Acting P delivered a written ruling granting leave on ground five only.

[8] In his ruling Byrne Acting P noted at paragraph (7) that although six grounds of appeal were filed the applicant relied on only one ground namely Ground 4 (sic) at the leave hearing.

[9] It is obvious that Byrne Acting P was referring to Ground 5 in paragraph 7 of his ruling and the reference to Ground 4 was a typographical error. Byrne Acting P said at paragraph [15]:

"I am satisfied that leave to appeal on this ground should be granted to the applicant and accordingly I grant his application."

[10] After leave was granted by Byrne Acting P, counsel for the appellant, Mr. Kohli filed written submissions for hearing of the appeal. The submissions are dated 26 October 2010. The submissions address Grounds 3 and 4, which were not argued at the leave hearing and for which leave were not granted.

[11] At the hearing of the appeal, the Court invited Mr. Kohli to explain his submissions regarding the Grounds for which leave were not obtained by him before Byrne Acting P. Mr Kohli withdrew his submissions on those grounds and relied on his submissions on Ground 5 only.

Hostile witness

[12] The witness concerned is Masha Bi. It was upon the prosecutor's application that Masha Bi was declared hostile and the prosecutor was allowed to cross-examine her on her previous inconsistent statement made to the police.

[13] The appellant's contention is that the learned trial judge failed to follow the procedure for declaring a witness hostile, that was laid down by this Court in Armogam v. State (2003) FJCA 32; AAU0032.2002 (30 May 2003), and that the witness was declared hostile without giving the defence an opportunity to make submissions.

[14] In Armogam, the trial judge declared three State witnesses hostile without holding a voir dire and without calling the defence to make submissions. On appeal, the Court of Appeal stated that a voir dire would have allowed the judge to consider the application properly and would have given the defence the opportunity to make submissions on whether the application should be granted.

[15] Another matter that was of concern to the Court in Armogam was that the only ground on which the trial judge made his decision was that part of the evidence the witness had given did not accord with part of his statement to the police. It was stated in Armogam that a witness is considered hostile only when in the opinion of the Judge, he bears a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth.

[16] Further at page 5 of the judgment, the Court said:

"If prosecuting counsel has in his possession a statement by a witness for the prosecution which is in direct contradiction to the evidence given by that witness, it is his duty at once to show the statement to the Judge and ask leave to cross-examine the witness as a hostile witness: R v Fraser (1956) 40 Cr. App. R. 160."

[17] Although the Court in Armogam took the view that the correct procedure to declare a witness hostile was by holding a voir dire, the judgment did not suggest that the procedure was mandatory. The Court said at page 5:

"While it is unusual to hear evidence on the question of whether a witness should be declared hostile, the procedure to be adopted is essentially for the trial judge. Earlier practice, which tended to discourage voir dire evidence on hostility issues, should no longer be regarded as inhibiting that course if the judge considers it would assist the exercise of the court's discretion: R v O'Brien [2000] NZCA 122; [2001] 2 NZLR 145 CA at 155."

[18] It is clear that Armogam's case is not an authority for the proposition that a trial judge must hold a voir dire whenever faced with an application to declare a witness hostile. The ratio decendi in Armogam's case could be derived from the following conclusion reached by the Court:

"What is of concern is the procedure that was followed in each case, where there was no opportunity for the defence to make submissions before the judge made his ruling, and there is no record of the reasons for that ruling." (underlining mine)

[19] In the present case, Masha Bi gave a signed statement to the police that she was the registered owner of the vehicle (CU899) which was used to transport the alleged illicit drug from Viti Levu to Labasa. In her statement she told the police that she had sold the vehicle CU899 to her brother, the appellant before the alleged offence. On the basis of the statement that Masha Bi gave to the police, the prosecution subpoenaed her as a State witness.

[20] After the trial had commenced, on 17 September 2009, in the absence of the assessors, the prosecutor advised the trial judge of their difficulty in locating Masha Bi.

[21] It appears that by the time the trial commenced, Masha Bi had changed her residential address. The prosecutor also told the trial judge that the evidence of Masha Bi was relevant to their case in that the appellant had control of the vehicle after it was sold to him. The trial continued with other witnesses while attempts were made to locate Masha Bi.

[22] Later on the same day, and in the absence of the assessors, the prosecutor applied for a short adjournment to locate Masha Bi. The prosecutor told the Court that the Immigration Department had grounds to believe that Masha Bi was trying to flee the country. The trial judge adjourned the case to 21 September 2009.

[23] On 21 September 2009, the prosecutor informed the trial judge in the absence of the assessors that the police was unable to locate Masha Bi. The prosecutor applied for Masha Bi's statement to be tendered under section 192 of the Criminal Procedure Code.

[24] Section 192(A) of the CPC allowed an accused to admit any fact or any element of an offence for the purpose of a trial. Clearly, the provision did not allow the trial judge to admit an out-of-court statement of a witness who was evading subpoena from the State. The learned trial judge quite rightly refused the prosecutor's application. After the learned trial judge gave his ruling on admissibility, the case was stood down for 15 minutes for the prosecutor to consider his next step.

[25] When the case was recalled, the prosecutor told the learned trial judge that Masha Bi had contacted him and that she was willing to give evidence. The prosecutor applied for an adjournment for a few days to facilitate Masha Bi's travel from Viti Levu to Labasa.

[26] The case was adjourned to 13 October 2009 for continuation of trial.

[27] On 13 October 2009, Masha Bi took the stand as a State witness. She said that the appellant was her biological brother. She was shown vehicle registration records from Land Transport Authority. She accepted she was the owner of the vehicle CU899. She said she never sold the vehicle to the appellant. At this point the prosecutor asked her whether she had given a statement to the police. She agreed she had given a statement to the police but she could not recall the date. The learned trial judge then allowed Masha Bi to see her statement.

[28] After the statement was shown to Masha Bi, the following exchanged took place between her and the prosecutor:

"Masha Bi: My signature is there. But I never told them I sold the truck to somebody. I told Police I gave it to Mohammed K and this what I told Police and they copied what Sheik Mohammed had said in his statement.

Mr. Muloilagi: Someone speaking to you?

PW15: No.

Mr. Muloilagi: Who told you to say this?

Masha Bi: Nobody.

Mr. Muloilagi: Here to protect brother?

Masha Bi: No. I am telling truth.

Court: You wrote this statement?

Masha Bi: No.

Mr. Muloilagi: You understand that the Police officer was based in Suva?

Masha Bi: Do not know where stationed but he came to my house. 10 officers came to my house in the pm.

Mr. Muloilagi: Know that those investigators were based at Seaqaqa?

Bi: Not aware of that. I was owner. They took statement from my brother and they took statement after him.

Mr. Muloilagi: You telling court how police should do their work?

Bi: They took statement 3 times. I was scared. This times

they wrote same statement and told me to sign.

Mr. Muloilagi: You coached to say this in Court this morning?

Bi: Not a small girl.

Mr. Muloilagi: This statement taken right after they found you

were owner of the truck?

Bi: All the things mention about my family are correct but not when it says I sold the truck to him.

Mr. Muloilagi: I put to you that you are lying to this Court?

Bi: I swore on Koran.

Mr. Muloilagi: Tender the statement of 17 June 2008 to the Court."

[29] At this point, Counsel for the appellant objected to the admissibility of Masha Bi's statement. The court record reads:

"Mr. Singh: I object to statement going in. Do not know if he wants her hostile – if he is declaring hostile then the procedure is set out in the Armorgan v. State AAU32/2002. He should ask the Court to declare her hostile, or set basis for tendering evidence as inconsistent.

Court: Asking her to be hostile?

Mr. Muloilagi: Not at the moment.

Court: You have not laid grounds clearly to show the inconsistency.

Mr. Muloilagi: You told names of family?

Bi: Yes.

Mr. Muloilagi: But you did not say that you sold the truck?

Bi: Police officers told me to write it.

Mr. Muloilagi: Tell Court part you do not agree.

Court: Put particular sentences to him.

Mr. Muloilagi: You told Police "I sold the truck to him for $12,000 and $2,000 deposit?

Court: Did you say that?

Bi: No.

Mr. Muloilagi: Why refer to brother's statement?

Bi: Not taking his side saying that police told me that Sheikh Mohammed said that and you should say the same. They did not believe me when I said that I gave it to them on contract.

Mr. Muloilagi: You agree fact that you work at Samabula earning $154 a week. Family information bought truck in 2007 (agreed). Bought for $12,000 and Mohammed Iqbal arranged it all (Yes) Parked it at his house, because you had no place. Gave it to Nazim Shah.

Bi: I did not tell Police I sold the truck to them.

Mr. Muloilagi: I refer you to statement of 23 September 2009 after police looking for you to give evidence.

Bi: Yes.

Mr. Muloilagi: That your signature?

Bi: Yes.

Mr. Muloilagi: You gave this statement?

Bi: No.

Mr. Muloilagi: You mention family members.

Bi: Yes.

Mr. Muloilagi: 1st statement 12/6/08?

Bi: Second time – police came to Suva – took statement.

Mr. Muloilagi: Truck was taken 6 June 2008 gave 1st statement on 17 June 2008?

Bi: Taken forcefully from me. Bench warrant against me and I came here to cancel Bench warrant – stating I was here. On the day I came it was pm but next am went to Muloilagi and he told me to give statement.

Mr. Muloilagi: This is the statement. "I was scolded by the Police – 10 policemen and witnesses. Others said lock her up" Your lies are overflowing to second statement?

Bi: Police wrote statement and told me to sign it.

Mr. Muloilagi: In 2nd statement has mother's name and siblings names (agree).

Bi: Names asked me and I told them.

Mr. Muloilagi: You then told them you sold the truck to Sheikh Mohammed?

Bi: They wrote that statement.

Mr. Muloilagi: You signed and police signed?

Bi: Signed because many officers said to lock me up.

Mr. Muloilagi: Application to turn the witness hostile.

Court: Grant that application."

[30] After the application was allowed, the prosecutor cross-examined Masha Bi on the statement she had given to the police. Under cross-examination Masha Bi maintained that she had not sold the vehicle to the appellant.

[31] Clearly, the circumstances of this case are different from that of Armogam's case. In Armogam, counsel for the accused had not been given any opportunity to raise his objection to the prosecution's application to declare the witnesses hostile. In this case, counsel for the appellant was heard on his objection. Mr. Singh, in fact cited the case of Armogam when raising his objection. Unfortunately, Mr. Singh did not insist on the requirement for a voir dire to consider the State's application and his objection.

[32] As I have said it earlier, Armogam's case is not an authority for the proposition that a voir dire is essential whenever a trial judge is faced with an application to declare a witness hostile. Whether to hold a voir dire or not will always depend on the circumstances of each case. If there is a possibility of the assessors hearing prejudicial evidence that is eventually going to be excluded, then the risk of injustice from occurring is averted by holding a voir dire in the absence of the assessors to determine the admissibility of evidence.

[33] In the present case, the prosecutor had informed the trial judge in the absence of the assessors regarding their predicament in locating Masha Bi. It was not in dispute that Masha Bi was a biological sister of the appellant. One would have thought that Masha Bi was aware of her brother's trial. She accepted that she gave a statement to the police. She must have known that she was a State witness. Numerous adjournments were granted during the trial by the learned judge to allow the State to locate this witness.

[34] After Masha Bi was located and called to give evidence, she retracted from her statement that she had made to the police regarding the ownership of the vehicle in which the alleged illicit drug was found. From what transpired at the trial, it is safe to conclude that there was no need to refresh the memory of this witness from her police statement. The prosecution relied on Masha Bi's statement to prove that the appellant had effective control of the vehicle in which the illicit drug was found. The inconsistency between Masha Bi's evidence and her statement to the police was therefore on a material issue. The disappearance of Masha Bi before the commencement of trial, her relationship with the appellant and her retraction of evidence on a material issue were all relevant to the trial judge's determination of declaring her a hostile witness.

[35] There cannot be any criticism of the trial judge's decision to declare Masha Bi a hostile witness. It was clear that this witness was not going to tell the truth and that she was hostile towards the State for prosecuting her brother. She switched sides so that her evidence favoured the defence.

[36] More recently, in Ramuwai v State [2012] FJCA 21, AAU0081.07 & AAU0081.08 (23 March 2012), this Court, after considering the English cases said at paragraph 126:

"The law is that a witness is not "adverse" or "hostile" unless he has changed sides....For one thing "the hostile animus" must relate to departing from or changing his previous statement to favour a defendant or defendants."

[37] The trial judge had already heard about Masha Bi's disappearance in the absence of the assessors. After Mr. Singh's objection, the trial judge in his discretion allowed the prosecutor to question Masha Bi regarding her previous inconsistent statement in the presence of the assessors. I cannot see any criticism of the trial judge's exercise of discretion to allow the prosecutor to question the witness regarding her police statement in the presence of the assessors in the circumstances of this case.

[38] As the English Court of Appeal held in R v. Khan, Dad and Afsar [2003] Crim. L.R. 428, that a voir dire before a decision on whether to allow the Crown to cross-examine would only be appropriate in exceptional circumstances because a jury might see a witness apparently giving evidence in one frame of mind and then see a complete turn-around after events which had taken place in their absence. The English Court of Appeal further observed that it was difficult to see how a judge could assess in advance of any evidence what a witness would do when confronted with his statement.

[39] I endorse the above passage to be applicable in the circumstances of this case. After having heard Mr. Singh's objection, it was only appropriate that Masha Bi be questioned about her police statement in the presence of the assessors. In any event, the appellant was not prejudiced by the trial judge's decision to allow the prosecutor to cross-examine his own witness. In his summing up, the trial judge directed the assessors to approach Masha Bi's evidence with utmost scrutiny as she was declared a hostile witness. The assessors were told not to substitute her evidence with the contents of her police statement. No criticism can be made to these directions of the trial judge to the assessors.

[40] For these reasons, I conclude that the ground of appeal has not been made out and the appeal against conviction should be dismissed.

Temo JA: I concur.

Kumararatnum JA: I concur.

Result

Appeal dismissed.

....................................
Justice Daniel Goundar
Judge of Appeal

....................................
Justice Salesi Temo
Judge of Appeal

....................................................
Justice Prabaharan Kumararatnum

Judge of Appeal
Solicitors:
Office of Kohli & Singh for Appellant
Office of the Director of Public Prosecutions for State