Dayal v State [2015] FJCA 113; AAU00109.2014 (19 June 2015)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU 00109 OF 2014
[High Court Criminal Case No. HAC 364 of 2011]

BETWEEN:

BIMLESH PRAKASH DAYAL
Appellant

AND:

THE STATE
Respondent

Coram : Hon. Mr. Justice Daniel Goundar
Counsel : Mr. A. Singh for the Appellant
Mr. S. Vodokisolomone for the Respondent

Date of Hearing : 11 June 2015
Date of Ruling : 19 June 2015

RULING

[1] This is an application for an extension of time for leave to appeal against conviction and sentence. The appeal is late by 1 year and 4 months. At trial, the appellant was represented by a private counsel of his choice. The appellant says that following his conviction and sentence, he instructed his counsel to appeal. That instruction was not followed by his trial counsel. When he enquired regarding the status of his appeal from the Registry, he learnt that no appeal had been filed. By the time he gave fresh instructions to his current counsel, the appeal was out of time.

[2] The real question is whether the appeal is arguable?

[3] The grounds of appeal are:-

Ground 1 – The learned Trial judge erred in law and fact by directing the Assessors that there are only three elements in a charge of murder, that the prosecution had to prove, such direction was erroneous caused a grave miscarriage of justice.

Ground 2 – The learned Trial Judge erred in law and fact and when misdirected the Assessors and he attempted to define reasonable doubt by stating, "remember it must be reasonable doubt not fanciful", this attempt cause the trial to miscarry, causing a grave miscarriage of justice.

Ground 3 – The appellant was arrested whilst attempting to kill himself in the circumstances the Learned Trial Judge should have held a preliminary hearing to decide on his fitness to plead, as such evidence should have alerted the Learned Trial Judge to a psychiatrist illness needing a fitness to plead issue resolved, this he should have done despite the defence counsel failure to raise this before the trial, thereby, the Learned Trial cause the trial to miscarry, causing a miscarriage of justice.

Ground 4 – The learned Trial judge erred in law and fact when he failed to direct the Assessors on the defence of insanity and the effects of influence of insane decision on the Appellant at the time these offence were alleged to have been committed as such the Learned Trial Judge allowed the trial to miscarry, causing a grave miscarriage of justice.

Ground 5 – The Learned Trial judge erred in law when he failed to consider temporary insanity or diminished responsibility as a defence to charge of murder when the evidence disclosed that the Appellant was in fact mutilating himself as such the Assessors could not assume that he was of sound mind at the time, the learned Trial Judge over looked these issues causing a mistrial and therefore a grave miscarriage of justice.

Ground 6 – The learned Trial Judge erred in law and fact when he erroneously directed the jury on the following points:-

(a) In paragraph 15, he told the Assessors "their grisly discoveries" referring to the discovery of dead bodies such comment was highly prejudicial and unwarranted.

(b) He told the assessors that witness Roselyn should never have been called and thus took away the defence of good character from the Assessors, as Roselyn's evidence was evidence of prior good character and also relevant to the issue of provocation.

(c) He allowed here say evidence to be given in court and included the same in his summing up in paragraphs 18 to 20 inclusive.

(d) He allowed here say evidence to be given in court and included the same in his summing up in paragraphs 18 to 20 inclusive.

(e) He told the Assessors to discard forensic evidence that was vital in a murder cases, when witnesses had died and did not live to tell their tale.

(f) He told the Assessors that the evidence of the psychiatrist does not help you, when he knew or ought to have known that mental state of the Appellant was a live and relevant issue to a charge of murder and the psychiatrist evidence, was highly relevant.

(g) He told the Assessors that "I had found that there was sufficient evidence from the prosecution to establish a case that put him to his defence" this was an unnecessary comment and highly prejudicial to the Assessors and defeated the requirements of a fair trial and as a safeguard the election issue of case to answer should have been done in the absence of the Assessors.

Ground 7 - The learned Trial Judge erred in law and fact when he completely omitted to give directions on the Defence of provocation, when there was sufficient evidence and it was the duty of the Learned Trial Judge to put all defences to the Assessors and he should have given the following direction in law:-

(a) The wrongful act or insult must be of such a nature to be capable of provoking an ordinary hypothetical person (of the accused's age) with powers of self-control within the range of limits or what is ordinary for persons of that age, to do what the accused did.

(b) The acts or words complained of, or a combination of both, must be viewed in their entirety for the purpose of assessing whether the accused actually lost self control and whether the extent of the reaction was reasonably proportioned.

(c) The context and extent of the provocative conduct must be assessed from the viewpoint of the particular accused, and the attributes or characteristics of the accused, including but not limited to age, sex, race, physical features, personal relationship and past history, and mental instability or weakness may be relevant to assess the context, implications and gravity of the provocative conduct.

(d) Except as to age, and judged according to contemporary conditions and attitudes, the effect of the wrongful act or insult, the extent of the power of self control required by the law is that possessed by the hypothetical ordinary person unaffected by the personal characteristics and attitudes of the particular accused.

(e) The question is whether the Assessors is satisfied beyond reasonable doubt of the absence of provocation, that is to say, the killing (or other relevant act) was unprovoked.

Ground 8 – The Learned Trial Judge erred in law and fact by omitting to give direction on provocation depriving the Assessors of the opportunity to consider provocation, this was a fatal flaw as a consequence the conviction cannot stand and must be quashed.

Ground 9 – That the learned Trial Judge erred in law and fact directed on self defence and was inadequate and lacked clarity causing a mistrial and miscarriage of justice and the judge should have directed as follows:-

(a) The offence is proved if the state has established that the accused had no belief that it was necessary in self defence (to commit the acts) or that there were no reasonable grounds for such a belief.

(b) Where an issue arises as to whether the force was proportionate the trial judge should direct the Assessors that the state must establish that the force in fact used by the accused was out of all proportion to any a attack which the accused could treasonably have believed was threatened by the victim.

(c) The Assessors should also be reminded that a person defending himself or herself cannot weight precisely the exact action which should be taken to avoid the threat which he or she reasonably believed they faced at the time.

(d) The Assessors must consider the whole of the circumstances, the degree of force used being only part of the whole picture.

Ground 10 – The learned trial Judge erred in law and fact failed to give all the required essential directions in law to the Assessors for a fair trial, he failed to explain the presumption of innocence, Actus Reus and Mens Rea, thus causing a miscarriage of justice.

Appeal Against Sentence

1. In fixing the minimum term the learned trial judge failed to give Appellant appropriate discount having regards to his mental health and diminished responsibility in the circumstances of the case.
   
2. The Learned Trial Judge erred in law and fact when he failed to consider all the factors in mitigation as required by law and as such his sentencing exercise miscarried resulting in a manifestly excessive non-parole period.
   

[4] Both parties have filed helpful submissions. Counsel for the State in his written submissions concedes that grounds 7 and 8 are arguable. The State does not object to an extension of time.

[5] The appellant was convicted of the most serious offence under the Crimes Decree 2009. He is serving a sentence of life imprisonment with a non-parole period of 20 years. He wants to exercise his right of appeal. The concession made by the State is fair. All that the appellant has to show at this stage is that his appeal is arguable.

[6] Without considering the merits of the appeal, I grant an extension of time and leave to appeal against conviction and non-parole period. Upon receipt of the full court record, the appellant may perfect his grounds of appeal and the arguments in support of the grounds for the Full Court's consideration.

Result
Extension of time granted.
Leave to appeal against conviction and non parole period granted.

....................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Anil J Singh Lawyers for Appellant
Office of the Director of Public Prosecutions for State