Khan v State [2013] FJCA 20; AAU0069.2007 (13 March 2013)

IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. AAU 0069 of 2007

BETWEEN:

MOHAMMED HAROON KHAN
Appellant

AND:

THE STATE
Respondent

Coram: Basnayake JA
Lecamwasam JA
Madigan JA

Counsel: Appellant in person
Ms M Fong with Mr M Korovou for the Respondent

Date of Hearing: 12 February 2013
Date of Judgment: 13 March 2013

JUDGMENT

Basnayake J.A

[1] I agree with the reasoning and the conclusion arrived at by Lecamwasam J.A.

Lecamwasam J.A

[2] This is an appeal against the conviction for murder entered by a High Court Judge at Labasa on the 28th June 2007. The trial judge sat with three assessors who expressed the unanimous opinion that the appellant was guilty of murder. The trial judge concurred with this opinion, convicted the appellant for murder and passed the mandatory sentence of life imprisonment.
[3] The basic facts may be shortly stated:

The deceased being a taxi driver, on the 4th of July 2002 as usual left home in the morning and was again seen by his wife, Nasiben Bi around 9am when she went to the bank. At that time there had been two people in the taxi and the front seat had been occupied by a Fijian. That was the last time she saw her husband alive. As he did not return home on that day, she along with the sons searched for the deceased and finally they came to know that the taxi belonging to him had been abandoned at Tuatua. Thereafter on the 6th of July she made a complaint to the Police. Acting on the complaint Police took prompt action and finally after investigation, the Accused was arrested on the 11th of July 2002. Thereafter having recorded the statement of the Accused, they took him to the scene of the alleged crime where they were able to discover the body of the deceased.

The prosecution is of the stand that the appellant had hired the taxi driven by the deceased to Yalava and on the way had exited the taxi to urinate, upon returning to the taxi the appellant punched, kicked and kneed the deceased and as the deceased was lying motionless the accused had relieved him of money, dragged the body of the deceased to a nearby shrub jungle and had driven the taxi back and left it at Tuatua. The story of the prosecution is woven around these facts that had unfolded the events that had taken place from the time the taxi gone missing and abandoning of the taxi at Tuatua.

However, the accused comes out with a total denial. What the accused alleges is that when he reached Yalava feeder road and walked further, he had seen a car and when he was approaching the said car, two men were fighting and one of them got hold of the accused and pushed him to the car and got him to sit down. Later on their compulsion and as they had drawn a knife, he had had to drive up to the Savusavu junction to drop the two men off. Thereafter he had left the car at Tuatua and gone home. According to him the distance he had to drive was about 33km.

Having heard all the evidence and determined upon the usual trial within a trial the admissibility of statements made by the accused and having considered the opinions of the assessors, which in this case were unanimous; the learned trial judge convicted the appellant on the count of murder. It is against that decision that this appeal lies. According to the amended ground of the appeal dated 23rd March 2010 there are nine grounds of appeal including two subheadings, "skeletal" submissions filed on behalf of the appellant too contain almost the same grounds but of course with different numbering and sometimes overlapping. Therefore I shall consider those grounds of appeal together as a whole without referring to any specific number. However these grounds of appeal were competently argued before us at the hearing before the Court of Appeal by the appellant himself in the English language.

[4] The accused's main objection is about the charge statement and caution interview. He alleges that the Police assaulted, kicked, punched and even gave him chillies to eat and got his signature to a written statement. In short not voluntary and was the result of oppressive treatment. When he was initially arrested at home, he was beaten with a coconut branch, pushed into the Police van and on their way to the Police Station the police had threatened him. Eight or nine police officers had allegedly assaulted the accused at different times and even kicked him on the stomach with boots. He says that he was not afforded his constitutional rights. I am mindful of the observation of Lord Hutton in R vs Mushtaq (2005) All ER 885 at 893 then:

"If in any proceedings where the prosecution proposes to give in evidence a confession made by the accused, it is represented to court that the confession was or may have been made in consequence of oppressive treatment of the accused or in consequence of any threat or inducement, the court shall not allow the confession to be given in evidence by the prosecution except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) (a) was not obtained by oppressive treatment of the accused; and (b) was not made inconsequence of any threat or inducement of a sort likely, in the circumtances existing at the time to render unreliable any confession which might be made by the accused in consequence thereof".

[5] I find that the learned High Court judge had dealt with this aspect in detail. On a comparison of the evidence before the High Court it is evident that there had been no injuries on the accused. Had there been injuries Dr Kiran Gaitiweed would and should have seen the injuries when the accused was produced before the Doctor within a short time after the caution interview was over. At 1718 the caution interview was over and the accused was produced to the Doctor at 6.05pm. In his evidence Doctor says that he examined the accused physically to see injuries or any possible internal injuries. He had removed the clothes and looked for marks or injuries on the body. He had examined the chest and abdomen and found no injuries. Therefore it is clear that the accused had no injuries at all. Had there been any acts of brutality on the part of the police, there should have been at least a scratch mark. Not only Dr Gaitiweed's evidence but also the notes of Dr Pomeri indicates that there was no clinical evidence of any injuries. Therefore the learned High Court Judge is correct in her conclusion as to the voluntariness of the charged statement and caution interview. If the accused was assaulted by the police in a manner as described by the accused, there ought to have been some mark of an injury either external or internal. On the evidence of Dr Gaitiweed we can safely exclude the infliction of any external injury. Had there been internal injuries Dr Pomeri notes ought to reveal such a situation.

[6] Although the accused alleges he sustained internal bleeding as a result of police assault and kicking we do not have any medical evidence to that effect. Internal bleeding is a serious medical situation where it is necessary to avail oneself of proper medical treatment. Absence of any medical evidence to that effect compels this court to reject the proposition of the appellant.

[7] It is well established law that the accused may be convicted of any crime upon his own confession alone. But as is pointed out by Ridley J in Sykes v R 8 Cr App 233 at page 236, the necessity seldom, if ever, arises, as the Court always examines the surrounding circumstances to ascertain if the confession is consistent with other facts which have been proved. In the present case there was evidence accepted by the learned trial Judge, and clearly by the assessors also, of several other circumstances suggesting strongly that the confession of the appellant was true. This may be set up briefly as under:

(a) Fingerprints of the accused found in the taxi and admitted by accused.

(b) Chain of events as unfolded by prosecution witnesses as to the presence of the accused in Labasa area in a taxi.

(c ) Evidence of Dr Chang as to the fight over fare.

(d) No injuries on the body of the accused.

(e) Recovery of the body of the deceased after the arrest of the accused and as pointed out by the accused.

[8] The facts detailed above are so clearly consistent with the statement made by the appellant that they to a very high degree amount to confirmation of that statement.

[9] The accused takes up the position that he was not informed of his rights to Counsel. Although he says so, in his evidence on page 301 he had stated "During the interview I was never told of my right to Counsel. They just read my rights. I do not know from where they read it ........"

[10] This statement of the accused himself is ample proof to confirm that the police had informed him of his rights by way of reading them over to the accused. This reading is sufficient to meet legal requirements. One cannot expect the police to go on repeating the rights of an accused. Once it is read over that meets the requirements under the law. Moreover in page 303.

Q. You were told of the right to counsel? Which part did you not understand?

A. I did not understand he did not interpret it in Hindi. They said it:

[11] Therefore it is crystal clear that the police have told him his rights to Counsel. According to the evidence before Court appellant is a person who is fluent in English; therefore there was no need to explain anything in Hindi.

[12] In his grounds of appeal he has taken up the position that the Judge has incorrectly relied on the caution interview where in fact, it was not tendered as an exhibit and he also takes up the position that the Judge has incorrectly assumed that the appellant was medically examined when his medical report was not proven in Court. Both these arguments cannot succeed since the caution interview had been marked as EX10 (page 287) and the medical report of the accused has been marked as Ex12. (Page 299) The accused had the opportunity to challenge the veracity of those in his cross examination.

[13] Another ground of appeal was that the appellant was prejudiced due to lack of representation. On a perusal of the case record it reveals that the accused was absent on eight occasions between the 7th of February 2005 and the 10th August 2005. Thereafter Mr R Singh had appeared for the accused on seven occasions and yet again the accused had not retained any lawyer on four occasions and appeared in person. Once again different lawyers had appeared for the accused from the 24th November 2006 to the 22nd May 2007. After the mistrial he was unrepresented on four occasions and even during the voir dire inquiry he had appeared in person. He was granted bail on the 27th August 2003 and the trial in High Court commenced on the 21st June 2007. Therefore the accused had more than sufficient time to prepare for the trial. He cannot now blame others for not retaining Counsel. Having had the opportunity he did not show any interest in retaining Counsel in Court. Even before the Court of Appeal he appeared in person. According to the accused himself his rights were read over by Police during the caution interview. So it was up to him to retain Counsel at the caution interview. The past conduct of the accused gives rise to the conclusion that the accused deliberately refrained from employing the services of a Counsel at the caution interview. Naturally that ground must also fail.

[14] Another point raised by the appellant is that the learned High Court Judge erred in law in not making sure that the appellant understood the language of the Court as proceedings were not translated into Hindi. This argument will of course not hold water as he was able to address the Court of Appeal very competently in fluent English. Apart from that under cross examination (page 303) he said "I can understand and talk English fluently". With this admission I do not think I should waste time of the Court on that issue.

[15] One of the positions taken up by the appellant throughout the case was that when he was walking along the Yalava feeder road he saw two men fighting beside the car and when he approached the place, one of them got hold of him and pushed him into the car and forced him to drive. When the appellant was under the care of Dr Agnes Chang at St Giles hospital he had been warded there for 20 days. According to Dr Chang she felt that the appellant had no mental illness. Appellant had told her "that there had been an altercation over the fare and they had a fight" (page 285). This is a very revealing statement because the appellant never divulged this to the Court but made every attempt to conceal it even under cross examination. Therefore it can be safely presumed that the true version of facts that occurred at the feeder road is the version attested to by Dr Chang and not the version the accused revealed to the Court. Dr Chang is a medical professional and as far as the appellant and the police are concerned she is an impartial and independent witness. There appears to be no necessity for her to fabricate something in a case of this nature. Therefore her evidence regarding the above statement of the appellant is highly relevant.

[16] ASP Rokobera told the Court that he came to Labasa on the 6th of July to examine a vehicle where the owner of the vehicle had been missing since the 4th of July. Having concluded his duty he had returned to Suva. Again on the 12th July he flew back to Labasa with pathologist Dr Loata and others as a body believed to be that of the owner of the vehicle was found at Yalava Road, Tabia. By this time the accused has been arrested by police and the body had been recovered as a result of the caution interview in which the accused revealed the whereabouts of the body. The important element is the recovery of the body subsequent to the arrest of the accused. The accused in his evidence at pages 310 & 311:

Q: The several other witnesses who saw DN554 from Wailevu, Seaqaqa, Savusavu, Seaqaqa then Tuatua?

A: Yes.

Q: They were called because you gave all this information to the police in your interview?

A: Yes, I did give my evidence but police only said 'you have done it'

[17] By his own admission the accused has given all these informations to the police in the course of his caution interview.

[18] The appellant cited R v Lawrence (1982) AC at 519 and the observation of Lord Hailsham LC thus:

"A direction to a jury should be custom built to make the jury understand their tasks in relation to a particular case, (we would add – or the assessors in relation to a particular accused). Of course it must include references to the burden of proof and the respective roles of the jury (assessors) and Judge. But it must also include a succinct but accurate summary of the issues of fact as which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences the jury (assessors) are entitled to draw from their particular conclusions about the primary facts". "In short, what is called for is an orderly, objective and balanced analysis".

[19] This is exactly what the learned High Court judge has done. She had given an orderly, objective and balanced analysis.

[20] The appellant in his submission states that the judge erred:

"(a) In law in failing to direct the assessors on the elements of the offence of murder and thus the elements that the prosecution must prove before the appellant could be convicted;

(b) In law in failing to direct the assessors on what weight to be given to the caution interview;

(c ) In law, in failing to direct the assessors on the issue of circumstantial evidence;

(d) In law, in failing to direct the assessors on the defence of duress put by the appellant;

(e) In law and in fact in failing to direct the assessors on the contents of the post mortem report and what they meant".

[21] As submitted by the State in Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466:

".....the only law which it was necessary for them (juries) to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are".

[22] In the light of the above judgment the learned High Court judge had addressed the assessors on the important aspects that would assist them to decide the real issues. I find that though at times not very elaborate yet the learned judge has dealt with important ingredients of the offence and other related things in a concise and lucid manner.

[23] In relation to ground (b) the learned High Court Judge had discussed about the caution interview and left the decision in the hands of the assessors by saying "what weight you put on these confessions is a matter for you". So the questions of weight was for them. We find no materiality in this ground.

[24] Although the learned judge not used the term "circumstantial", she had directed the assessors on the chain of events alluding in some extent to circumstantial evidence. The appellant appeal against the High Court judgment on this ground too, had the learned High Court judge addressed the issue of circumstantial evidence specially, it would definitely have strengthened the prosecution stand and would have a detrimental effect on the accused. The
prosecution has unfolded the chain of events pertaining to the movements of the accused on the 4th of July from Labasa to Tuatua, where he was alleged to have left the taxi. In the light of the above chain of events, it is inconceivable to conclude that panel of assessors had come to the decision without considering the circumstantial evidence based on the above chain of events. Hence this ground also must fail.

[25] The accused states that learned High Court judge failed to direct the assessors on the defence of duress. This ground cannot succeed simply for the reason of the accused denying the occurrence of the whole incident. The accused cannot plead a defence over a penal offence which he denies he committed. Therefore defence of duress has no relevancy in this case.

[26] Post mortem report was marked through Dr Gupta and the learned High Court Judge in page 17 explained to the assessors the relevancy of the post mortem report and as pointed out in RPS v Queen [2000] HCA 3; (2000) 199 CLR 620,637:

"it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions, it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes".

[27] I find the learned High Court had fulfilled all those requirements as envisaged in the judgment.

[28] Finally the appellant laments over the fact that the High Court Judge failed to adequately present the case of the accused to the assessors, we cannot overlook the fact that the High Court judge had to deal with 18 witnesses of the prosecution as against the evidence of only one witness of the defence ie. the evidence of the accused. Hence inevitably that she had to devote more space to the prosecution. However she had dealt with the case of the defence case very
coherently and satisfactorily in pages 17, 18 & 19 and therefore no prejudice has been caused to the accused.

[29] In view of the above reasoning there is no merit in any of the grounds of appeal submitted on behalf of the appellant and the appeal is therefore dismissed.

Madigan J.A

[30] I have read the judgment of my brother Lecamwasam J.A and would agree with his conclusion that the appeal must be dismissed.

[31] On the ground that the caution interview should never have been admitted, it has long been accepted that an appellate Court will not lightly interfere with the exercise of judicial discretion in a Court below. In this case the trial judge was well aware of the matters she had to consider relating to voluntariness and oppression and in the light of those considerations she admitted the interview into evidence. This was an exercise of her judicial discretion and she being the best person to judge the situation after hearing the evidence then this Court would not interfere unless shown that that discretion was exercised in error or that there were matters that the Judge was prevented from being aware of. The appellant places no such matters before us and this ground of appeal must fail.

[32] The rest of the appellant's arguments were nebulous, evasive or frivolous. He even made submissions to this Court that totally contradicted his sworn evidence at trial (in relation to his driving of the vehicle).

[33] There is no merit in this appeal whatsoever.

Order of Court

Appeal dismissed.

Hon. Justice Eric Basnayake
Justice of Appeal

Hon. Justice Susantha Lecamwasam
Justice of Appeal

Hon. Justice Paul Madigan
Justice of Appeal