Nadim v State [2015] FJCA 130; AAU0080.2011 (2 October 2015)

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

CRIMINAL APPEAL NO. AAU 0080 OF 2011
[High Court Criminal Case No. HAC 0016 of 2010]

BETWEEN:

1. MOHAMMED NADIM
2. RAVINESH VIKASH PADIYACHI
Appellants

AND:

THE STATE
Respondent

Coram : Calanchini P
Prematilaka JA
Madigan JA

Counsel : Mr. S. Sharma for the Appellants
Mr. M. Delaney for the Respondent

Date of Hearing : 16 September 2015
Date of Judgment : 02 October 2015

JUDGMENT

Calanchini P

[1] I have read the draft judgment of Prematilaka JA and agree that the appeal should be dismissed.

Prematilaka JA

[2] This appeal arises from the conviction of the Appellants on two counts of murder. The Amended Information dated 28 July 2011 alleged that both Appellants had murdered Ramkrishan Amirthanlingam alias Ram and Rajamanickam Venkatachalam alias Guna on 14 December 2009 and thereby committed two offences of murder punishable under section 199 read with section 200 of the Penal Code [Cap.17). After trial, they were convicted on both counts and sentenced to life imprisonment with a non parole period of 20 years.

Preliminary observations

[3] Both Appellants filed notices of application for leave to appeal dated 29 August 2011 against the convictions and the 06 grounds of appeal initially urged were later expanded to 10 grounds by the supplementary notices of leave to file additional grounds of appeal dated 22 March 2013. Hon. Justice S. Chandra granted leave to appeal on three out of the ten grounds urged on behalf of the Appellants on 14 March 2014. His Lordship had determined that there were no merits in respect of the other grounds which should therefore, be deemed to have been refused under section 35(3) of the Court of Appeal Act. The Appellants however, had not taken steps under Rule 41 (2) of the Court of Appeal Rules against the refusal of 07 grounds. Later, the Legal Aid Commission had filed an ‘Amended Application on behalf of the Appellants in support of the Appeal against conviction’ dated 17 July 2015 setting out seven grounds of appeal which included the three grounds allowed by court in its ruling on 14 March 2014. The other grounds were not among those urged and disallowed at the leave stage. This ‘Amended Application’ does not mention under what prevision of law or rules it had been tendered. It may perhaps, be considered a supplementary notice under section 37(1) of the Court of Appeal Rules.

[4] In the written submissions filed by the Legal Aid Commission dated 20 July 2015 on behalf of the Appellants the fifth, sixth and seventh grounds have been abandoned. The sixth ground is one of the grounds allowed in the ruling in the leave to appeal application. Submissions have been made only on the first to fourth grounds. Therefore when the appeal came up for hearing the Appellants were left with two grounds in respect of which leave had been obtained and two fresh grounds which could not be considered under section 35(2) of the Court of Appeal Act in as much as they had not been considered and refused at the leave stage. Therefore the Court decided to act under section 17 of the Court of Appeal Act in respect of the two fresh grounds of appeal. The State too concurred with the Court considering the said four grounds of appeal at this stage.

Grounds of Appeal

[5] The four grounds we are called upon to make a determination are as follows.

(i) Ground One

‘The Learned Trial Judge erred in law and in fact when he did not properly direct the assessors on how to approach the previous inconsistent statements of some witnesses.’

(ii) Ground Two

‘The Learned Trial Judge erred in law and in fact when he did not properly direct the assessors in respect of circumstantial evidence.’

(iii) Ground Three

‘The Learned Trial Judge erred in law and in fact when he did not direct the assessors to disregard the evidence of larceny after the prosecution amended the information hence causing substantial miscarriage of justice and prejudice to the Appellants.’

(iv) Ground Four

‘The Learned Trial Judge erred in law and in fact when he forced the Appellants’ Counsel to continue representations despite informing the Court of his intention to withdraw.’

Summary of facts

[6] The deceased had been engaged in a business involving scrap metal. The 01st Appellant had been the manager of their business while the 02nd Appellant had been employed as a labourer by the 01st Appellant. The 01st Appellant was living with the victims at their house at No.33, Willow Street, Nakasi. The deceased had been seen last in the evening on 13 December 2009. The deceased were seen drinking alcohol in the living room while the Appellants were seen consuming grog at the back of the house. Since then the deceased were never seen alive. Their bodies had been found by a labourer digging a toilet pit, packed in two suitcases in the unoccupied back garden of the house belonging to the 02nd Appellant’s father at Benai, Ba on 16 January 2010. The bodies were fully recovered on 17 January 2010. There had been several cut injuries on the neck and face of the deceased caused by a sharp weapon; two cut injuries had caused the deaths. The medical evidence revealed that the deaths would have occurred three to five weeks prior to the post mortem examination. I shall consider the other evidence under the relevant grounds of appeal.

[7] The assessors decided that the Appellants were guilty of having committed the murder of Ramkrishan Amirthanlingam alias Ram and Rajamanickam Venkatachalam alias Guna unanimously and by a majority respectively. The High Court Judge had agreed with both opinions and convicted the Appellants on both counts of murder. I shall now proceed to consider the grounds of appeal.

Grounds of Appeal

[8] Ground One –

‘The Learned Trial Judge erred in law and in fact when he did not properly direct the assessors on how to approach the previous inconsistent statements of some witnesses.’

[9] The Learned Counsel for the Appellants has drawn the attention of court to three instances of the alleged inconsistencies. They are as follows.

Cross-examination

(i) “Mr. Valenitabua: In your statement to the Police you never said anything about Ravi refusing to give you permission to tie the dog at first.

Mr. Ronish: Yes it is not in my statement but Ravi told me this.”

(See page 803 of Volume 3 of the Record of the High Court)

(ii) “Mr. Valenitabua: You also didn’t tell the Police that Ravi told that Ram and Guna ran away from the house.

Mr. Ronish: Yes my Lord I didn’t tell the Police but when myself and my Mummy was there Ravi told us this.

“Mr. Valenitabua: You also didn’t tell the Police that rug was missing and the house being disturbed.

Mr. Ronish: Nobody asked me my Lord...

(See page 803 of Volume 3 of the Record of the High Court)

(iii) “Mr. Valenitabua: You gave the statement to the police on the 17th January 2010?

Mr. Moshim: Yes my Lord.

“Mr. Valenitabua: And you stated that at about 1.30 p.m. ‘I returned from grazing the cattle and I went near the pit and I saw that the pit was empty and the spade was beside the pit’, can you explain that to the court?

Mr. Moshim: Sir from this side I noticed the pit and when I was returning on the horse back I didn’t notice the pit as I was on the horse back.”

(See page 825 of Volume 3 of the Record of the High Court)

Re-examination

“Ms Puamau: Just one final question Mr. Moshim, your statement that you gave to the Police can you explain how that statement was taken, what was the process for taking your statement with the Police Officer?

Mr. Moshim: Sir the Police Officer came to my house and he asked me how this accident took place and I told him the whole story.

Ms. Puamau: So you were recounting things and then he was writing?

Mr. Moshim ; Yes my Lord.”

(See page 827 & 828 of Volume 3 of the Record of the High Court)

[10] The complaint of the Appellants is that the High Court Judge has failed to direct the assessors on the alleged inconsistencies in accordance with the guidelines stated by the Supreme Court in Swadesh Kumar Singh v The State [2006] FJSC15 which had been confirmed by the Supreme Court in Praveen Ram v. The State Petition No. CAV0001 of 2011: 09 May 2012. The following passage from Praveen Ram’s case has been cited in support of the above argument.

“It is pertinent to note in this connection that in Swadesh Kumar Singh v The State [2006] FJSC 15 at paragraph 51, this Court emphasised that "where a witness has made a statement on oath directly inconsistent with evidence he or she gives in court and particularly when that evidence implicates the accused person, the assessors should be informed of the importance of statements made on oath. They should also be told that they should be cautious before they accept a witness's sworn evidence that conflicts with a sworn statement the witness previously made. Having said that, this Court also went on to lay down following guidelines for trial judges

“The judge should remind the assessors of the explanations given by the witness for the earlier sworn statement and instruct them that the evidence in court should be regarded as unreliable unless the assessors are satisfied in two particular respects. Firstly, the explanations are genuine. Secondly, that, despite the witness previously being prepared to swear to the contrary of the version the witness now puts forward, he or she is now telling the truth.”

[11] The Supreme Court in Swadesh Kumar’s case was dealing with a situation where a witness has made a previous statement on oath directly inconsistent with the evidence given in court. However, Praveen Ram’s case the Supreme Court considered the implications arising from inconsistencies between the testimony of a witness in court with his previous statement to the police. The fact that the Supreme Court in Praveen Ram’s case quoted with approval the above passage from Swadesh Kumar’s case implies that the Supreme Court thought that the same principles of law and guidelines should apply to inconsistencies between out of court statements and testimony in court irrespective of whether the previous statements have been sworn or unsworn. Chief Justice Lord Parker’s comments in Regina v Golder [1960] 1 WLR 1169; 45 Cr.App.R.5; [1960] 3 All E.R.457 support this proposition. The remarks of Lord Goff of Chieveley in Regina v Governor of Pentonville Prison, ex p. Alves [1993] AC 284 cited by the Supreme Court in Praveen Ram’s case is also a case on unsworn inconsistent previous statements.

[12] The three instances highlighted by the Counsel for the Appellants as inconsistencies in Ronish Singh’s evidence seem to be actually omissions in the police statements rather than inconsistencies with it. Only Moshim’s statement to the police could be regarded as being inconsistent with his evidence. However, none of the above cases deal with omissions in the previous statements.

[13] Generally speaking, I see no reason as to why similar principles of law and guidelines should not be adopted in respect of omissions as well. Because, be they inconsistencies or omissions both go to the credibility of the witnesses (see R. v O’Neill [1969] Crim. L. R. 260). But, the weight to be attached to any inconsistency or omission depends on the facts and circumstances of each case. No hard and fast rule could be laid down in that regard. The broad guideline is that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance (see Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] AIR 753, 1983 SCR (3) 280).

[14] At this stage, it is pertinent to consider the High Court Judge’s directions on law challenged by the Appellants as not being in compliance with the guidelines in the cases of Swadesh Kumar and Praveen Ram. They are as follows:

“You may have observed that when some witnesses gave evidence there were some inconsistencies between the evidence before this Court and the statement given to the police. What you should take into consideration is only the evidence given by the witness in Court and not any other previous statement given by the witness. However, you should also take into consideration the fact that such inconsistencies between the evidence before Court and statement to police can affect the credibility of the witness.”

[15] It is well settled that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be discredited or disregarded. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witnesses. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of incidents, minor discrepancies are bound to occur in the statements of witnesses.

[16] The Indian Supreme Court in an enlightening judgment arising from a conviction for rape held in Bharwada Bhoginbhai Hirjibhai v State of Gujarat (supra)

“Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all-important "probabilities-factor" echoes in favour of the version narrated by the witnesses. The reasons are: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; ........ (3) The powers of observation differ from person to person. What one may notice, another may not. ...... It is unrealistic to expect a witness to be a human tape recorder;”

[17] It is clear that the High Court Judge’s above direction is certainly not a repetitive narration of the quoted passage found in Swadesh Kumar’s case. Those words are not there verbatim in the High Court Judge’s direction.

[18] However, the High Court Judge has at paragraph 54 summed up to the assessors very clearly on all three instances of alleged inconsistencies which are in fact omissions highlighted on behalf of the Appellants and also referred to Moshim’s evidence at paragraph 59 & 60 which form the gravamen of the Appellants’ complaint. Later in the summing up he had directed them as quoted above on the law on inconsistencies.

[19] Should the High Court Judge necessarily have followed Swadesh Kumar guidelines strictly in this case? I think not, inter alia for the following reasons. The highlighted omissions in Ronish’s and the inconsistency in Moshim’s evidence are not directly inconsistent with their overall evidence in court and taken separately and in isolation, they do not implicate the Appellants with the charges either. Most importantly those do not go to the root and shake the very foundation of Ronish’s and Moshim’s evidence. In addition, their police statements had not been made under oath. Further Ronish’s discrepancies are omissions not inconsistencies. The said omissions and even the sole inconsistency do not damage the basic fabric of the evidence of the two witnesses. They are not material omissions or inconsistencies.

[20] I would have been surprised if such discrepancies had not been there in a case of this nature. That would have made me somewhat uncomfortable as to the truthfulness of the witnesses. Therefore in the circumstances of the instant case I hold that the impugned direction is adequate and in any event the omissions and the inconstancies pointed out by the Appellants are not strong enough to impeach the credibility of the witnesses concerned and upset the verdict against the Appellants.

[21] Ground two –

‘The Learned Trial Judge erred in law and in fact when he did not properly direct the assessors in respect of circumstantial evidence.’

[22] The main complaint of the Appellants is that the High Court Judge has failed to direct the assessors on the lines approved by the Court of Appeal in Lole Vulaca and two others v. The State Criminal Appeal No.AAU0038/08: 29th August 2011 [2011 FJCA39] in that the Court of Appeal found no error in the summing up of the trial judge where he had said inter alia

“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.”

[23] It is necessary to examine how the High Court Judge had directed the assessors in the instant case. He stated inter alia as follows:

“It is not sufficient that the proved circumstances are merely consistent with the Accused persons having committed the crime. To find him guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the Accused persons committed the crime.”

“I have explained to you what circumstantial evidence is. It is up to you to draw the proper inferences from the evidence placed before you.”

[24] The Supreme Court decision in Senijieli Boila v The State (Criminal Appeal No. CAV005 of 2006S: 25th February 2008) is also relevant in this regard. The Court observed on the use of circumstantial evidence that

“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. Hart [1986] 2 NZLR 408. The adequacy of a particular direction will necessarily depend on the circumstances of the case.”

[25] There is merit in the Appellants’ complaint that the High Court Judge has not said in the summing up that if there are other reasonable inferences the assessors can draw consistent with the accused’s innocence or if they have a reasonable doubt about it, then they should find them not guilty. In other respects the direction of the High Court Judge as quoted above is blameless. He has been almost spot-on with the first limb but had not touched on the second limb of the direction sanctioned by the Court of Appeal in Lole Vulaca’s case. However as the Supreme Court remarked in Senijieli Boila’s case what is required is a clear direction that assessors must be satisfied of the guilt of the accused beyond reasonable doubt and in my view the impugned direction satisfies this requirement in no uncertain terms and as accurately as it could be. Thus, there being no ideal stereotyped direction in evaluating circumstantial evidence, the adequacy of any given direction will necessarily depend on the circumstances of the case as stated in Senijieli Boila’s case.

[26] I shall now consider the circumstantial evidence led against the Appellants to determine whether in the absence of a specific statement based on the second limb approved by the Court of Appeal in Lole Vulaca’s case, the impugned direction could be considered adequate or not.

Circumstantial evidence against the Appellants

[27] The High Court Judge has adverted to several items of the circumstantial evidence in the summing up including the following:

(i) The deceased were last seen on the 13 December 2009 evening with the two Appellants.

(ii) On the 14 December the 01st Appellant had told a witness that the deceased had gone to the West.

(iii) On the 15 December 2009 the Appellants were seen at the vacant residence of the 02nd Appellant’s father at Benai, Ba.

(iv) Two witnesses had seen a pit dug in the backyard of the said house on the same day.

(v) On the same day the vehicle Toyota Hilux belonging to the company run by the deceased had been seen parked on the said property at Benai, Ba with the front of the vehicle facing the front of the property and the back tray of it facing the rear of the property.

(vi) The 01st Accused had been seen using the said vehicle after the disappearance of the deceased.

(vii) The bodies of the deceased were found buried on the backyard of the same premises at Benai, Ba on the 16 January 2010.

(viii) Some blood like stains found at the house at Nakasi where the deceased were last seen in the company of the Appellants were tested positive for blood.

(ix) Blood like stains found in the back tray of the vehicle were also tested positive for blood.

(x) The 02nd Appellant had told the investigating officer in his Plain Statement made on the 22 December 2009 that the deceased had gone to the West as they were stressed and he himself had gone to West on the 15 December 2009 but not with the deceased. He had not told that he had gone to Benai Ba.

(xi) In his Plain Statement made on the 30 December 2009 the 01st Appellant had told that the 02nd Appellant had taken him to the West and that they also had gone to the house at Benai, Ba.

(xii) The 01st Appellant had also told in the said statement that he had stolen a mobile phone of Guna, one of the deceased.

(xiii) On the 30 December 2009 the 01st Appellant had handed over two mobile phones stating that he had stolen them on the 14th morning.

(xiv) The vehicle Toyota Hilux belonging to the company run by the deceased had been under the control of the 02nd Appellant when seized by the Merchant Finance Company for non-payment of the loan.

(xv) On the 30 December 2009 the 02nd Appellant had handed over a pair of sun glasses belonging to Ram, the other deceased. Prior to that the 02nd Appellant had been seen wearing it.

(xvi) The 01st Appellant had confessed to stealing two pairs of shoes seized by the investigators.

(xvii) On the 16 January 2010 the bodies of the deceased were found packed in two suitcases in the unoccupied back garden of the house belonging to the 02nd Appellant’s father at Benai, Ba. The bodies were fully recovered on the 17 January 2010.

[28] I am of the view that on the facts and circumstances of this case the High Court Judge has adequately directed the assessors on how they should approach the circumstantial evidence. In any event, I am convinced that given the above incriminating circumstances even with a direction to the effect ‘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’ the assessors would not have arrived at a different finding.

[29] In any event Lole Vulaca’s case has not considered the case of McGreevy v. D.P.P [1972] 57 Cr.App.R. 424, P.C. where it was held that where the prosecution case is based on circumstantial evidence, there is no rule which requires the judge as a matter of law, to give a further direction that the jury must not convict unless they are sure that the facts proved are not only consistent with guilt of the accused, but also such as to be inconsistent with any other reasonable conclusion. Therefore the direction approved in Lole Vulaca’s case is not a sine qua non in every circumstantial evidence case. In my view, the direction approved in Lole Vulaca’s case should be read subject to the rulings in McGreevy and Senijieli Boila’s case. Evaluated in that light, I cannot find fault with the impugned direction of the High Court Judge in the present case.

[30] Although the above analysis is enough to settle the arguments based on ground two, I feel that it would be useful in the circumstances of this case to consider the effect of silence on the part of the Appellants in the teeth of such incriminating evidence. The High Court Judge at the close of the prosecution case had explained all options available to the Appellants and they had decided to remain silent. Then the Judge had informed the assessors that it is the Appellants’ right to be silent and warned that they should not draw any adverse inference from the Appellants’ choice to remain silent.

Is the right to silence absolute?
[31] Lord Sankey in the House of Lords in Woolmington v DPP [1935] 25 Cr.App.R. 72; [1935] UKHL 1 made his famous "Golden thread" speech on the burden of proof in criminal cases which has been considered over the years as the preferred direction to the jury:

"Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to... the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner... the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

The Privy Council approved Woolmington in McGreevy v. D.P.P (supra)

[32] However the judge may, in his discretion, comment on the defendant's failure to give evidence (see R v Rhodes [1899] 1 Q.B. 77 & R. v Voisin [1918] 1 K.B. 531) but such adverse comment should be balanced by pointing out to the jury that the defendant is not obliged to give evidence (see Waugh v R. [1950] A.C. 203. P.C.) and no comment should be made which conveys to the jury that failure to give evidence is inconsistent with innocence or that the only reasonable inference to be drawn, is that the defendant is guilty[1]. Nevertheless in R. v Mutch [1973] 1 All E.R. 178, C.A., it was held that in some rare exceptional cases the judge may go a little further and make the comment that an inference can be drawn from uncontested or clearly established facts which point so strongly to guilt as to call for an explanation: if no explanation is given when the circumstances are such that an innocent man would be expected either to give an explanation or deny the basic facts, this is a factor which can be taken into consideration. Reviewing previous authorities in R. v. Sparrow [1973] 1 W.L.R 488, C.A., it was stated that what is said must depend on the facts of the particular case and that in some cases a stronger comment is called for than in others. The judge must exercise his discretion to ensure that the trial is fair and his discretion is not to be fettered by laying down rules for its exercise. He should not, however, seek to bolster up a weak case by strong comments, and he must be careful to avoid telling or implying to the jury that absence from the witness-box is to be equated with guilt.

[33] Admittedly, mere suspicious circumstances cannot establish guilt. Thus, proof of any number of suspicious circumstances does not relieve the prosecution of proving the case beyond reasonable doubt. But when telling evidence of a mass of circumstances remains unexplained by an accused when it is within his power to explain by himself or others such damning facts taken cumulatively might be sufficient to rebut the presumption of innocence, although each fact, when taken separately, may be a circumstance only of suspicion.

[34] Pollock CB in R v Exall [1866] EngR 22; (1866) 4 F & F 922 at 929 compared circumstantial evidence to a rope comprised of several cords. He went on to say:

"One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence - there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion: but the whole taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of."

[35] Therefore, in my view, in this case the High Court Judge could have legitimately commented on the Appellants' failure to offer an explanation in the light of the mass of highly incriminating circumstantial evidence against them with an accompanying direction as required by law; if he had chosen to do so without being subject to any strictures. Yet, the Judge had decided not to comment on their silence being fair by the Appellants.

[36] Ground Three

'The Learned Trial Judge erred in law and in fact when he did not direct the assessors to disregard the evidence of larceny after the prosecution amended the information hence causing substantial miscarriage of justice and prejudice to the Appellants.'

[37] It is common ground that the Appellants were originally indicted on three counts; two counts of murder and one count of larceny alleging that the appellants had stolen various items such as a mobile phone, laptop, clothes and shoes from the deceased. However for some inexplicable reason the prosecution had filed the amended information just prior to the close of the prosecution case leaving only the two counts of murder.

[38] The complaint of the Appellant is that the High Court Judge had not directed the assessors to disregard the evidence of larceny adduced against the Appellants and as a result the assessors would have made up their minds to decide that the Appellants were guilty of murders because they were last seen with the deceased and later found to have been in possession of several items belonging to victims. Thus, the Appellants argue that the High Court Judge's failure to direct the assessors to disregard the evidence relating to the count of larceny after the prosecution withdrew or abandoned that count has resulted in substantial miscarriage of justice and prejudice to them which could be remedied only by a retrial.

[39] The impugned items of evidence referred to in the summing up are set out in paragraphs 27 (xii), (xiii), (xv) and (xvi) above. They are sought to be impeached on the ground that the probative value of such evidence outweighs the prejudice to the Appellants. The cases of Peniasi Senikarawa v The State (Criminal appeal No.AAU0005 of 2004S: 24th March 2006), and The State v Patrick Nayacalagilagi and others HAC 165 of 2007, [2009] FJHC 73 and Makin v Attorney General for New South Wales [1894] AC 57 have been cited to us in support of this argument.

[40] In Peniasi's case (supra) the trial judge had admitted evidence of incidents and acts not specified in the charges while those incidents had taken place and the acts had been committed on different occasions unconnected to the charges against the appellant. However in the instant case the items of evidence challenged by the Appellants are all connected with the two counts of murder even if the charge of larceny had never been there. Therefore, such evidence could not be termed as evidence of uncharged acts or propensity evidence. They are relevant to the charges of murder as well as larceny. Such evidence could have been adduced independently on charges of murder or larceny or on both. Therefore the admissibility of the impugned evidence does not depend on the test whether probative value outweighs the prejudicial value as propounded in R v. Boardman [1975] AC 421 and Pfennig v R [1995] HCA 7; [1995] 127 ALR 99; [1995] 69 AJLR 147 as quoted in Peniasi's case. Thus, the direction required in respect of 'uncharged acts or propensity evidence' would not have been necessary in the context of the present case.

[41] In R v. Boardman [1975] AC 421, [1974] 3 All ER 887, (1975) 60 Cr App R 165, [1974] 3 WLR 673, the defendant appealed the admission of similar fact evidence against him. The headmaster was charged with buggery with S and inciting H to commit buggery on him. The judge directed the jury that the evidence of S on the count concerning him was admissible as corroborative evidence in relation to the count on H. It was held that contrary to the general rule, evidence of criminal acts on the part of the accused other than those with which he was charged became admissible because of their striking similarity to other acts being investigated and because of their resulting probative force; that it was for the judge to decide whether the prejudice to the accused was outweighed by the probative force of the evidence.

[42] The facts of the case currently before this Court are completely different to those of Boardman (supra) which deals with the admissibility of similar facts and therefore not applicable to the instant case. In any event much water has flown under the bridge since Boardman as seen from the following decisions.

[43] In DPP v P [1990] 93 Cr App R 267 Lord Mackay of Clashfern LC having considered Boardman came out with a simple test of admissibility in the following terms.

"From all that was said by the House in Reg v Boardman I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime."

[44] Lord Denning MR in Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] Ch 119, 127 clearly expressed the correct approach on similar facts:

"The admissibility of evidence as to 'similar facts' has been much considered in the criminal law ... The criminal courts have been very careful not to admit such evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused."

[45] Lord Steyn pointed out in R v Randall [2003] UKHL 69; [2004] 1 WLR 56, at para 26:

"It is no answer to admitting [similar fact] evidence that it is evidence of the propensity of the accused to commit certain crimes. On the contrary, that is often the very reason for admitting such evidence. While these rules are not applicable in this case their rationale illustrates that propensity to commit certain crimes may sometimes be relevant to the fact in issue."

[46] Lord Hobhouse of Woodborough in R v Z [2000] UKHL 68; [2000] 2 AC 483, 508:

"Similar facts are admissible because they are relevant to the proof of the defendant's guilt. The evidence relating to one incident taken in isolation may be unconvincing. It may depend upon a straight conflict of evidence between two people. It may leave open seemingly plausible explanations. The guilt of the defendant may not be proved beyond reasonable doubt. But, when evidence is given of a number of similar incidents, the position may be changed. The evidence of the defendant's guilt may become overwhelming. The fact that a number of witnesses come forward and without collusion give a similar account of the defendant's behaviour may give credit to the evidence of each of them and discredit the denials of the defendant. Evidence of system may negative a defence of accident. This is the simple truth upon which similar fact evidence is admitted: it has probative value and is not merely prejudicial."

[47] In Pfennig v R [1995] HCA 7; [1995] 127 ALR 99; [1995] 69 AJLR 147 Dieter Pfennig was charged with the murder of Michael John Finlay Black, aged ten years, at or near Murray Bridge on or about 18 January 1989. Black was last seen on that day at Sturt Reserve on the Murray River. His body was never found. The prosecution case was based upon circumstantial evidence including the proof of circumstances involving the accused's abduction and rape of another young boy about a year later at Port Noarlunga, offences to which the accused pleaded guilty. The trial judge admitted the evidence of the later offence. The accused was convicted and an appeal against conviction to the Court of Criminal Appeal was dismissed. He appealed to the High Court by special leave but the appeal too was dismissed. Thus, clearly Pfennig is also a case of similar facts evidence and its decision has little bearing on the matter before this Court.

[48] In Makin v Attorney General for New South Wales [1894] AC 57 the appellants were convicted of murdering an infant that they had received for adoption. They complained, unsuccessfully, that evidence had been admitted of the discovery, buried in their garden, of the bodies of five other children. In explaining why this evidence was admissible, Lord Herschell LC said, at p 65:

"It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other."

[49 ] Thus, it appears that Makin (supra) lends little help to the Appellants in their challenge to the impugned items of evidence. In my view those pieces of evidence have been led not only to show the commission of larceny but also the murders themselves. With or without the charge of larceny that evidence is admissible in relation to the two counts of murder.

[50] Thus, I hold that Peniasi and other decisions in the above case are not applicable to the facts of the instant case, for they deal with 'similar facts' evidence or 'propensity evidence' or evidence on uncharged offences. In the present case the assailed items of evidence are evidence of the double murder allegedly committed by the Appellants.

[51] In the case of The State v Patrick Nayacalagilagi and others (supra) the High Court was dealing with the evidence of the accused having assaulted other persons other than the complainants and them having forced the victims to perform unnatural offences. The appellants had not been charged with those offences. Therefore Patrick's case too has dealt with similar fact evidence on uncharged acts and some propensity evidence.

[52] The case before this Court is not on the admissibility of such evidence for which different rules and directions would apply. Thus, I hold that the test of weighing of probative value against the prejudicial value as advocated in Patrick's case does not apply to the impugned items of evidence challenged by the Appellants.

[53] Even if one assumes for the sake of argument, without conceding that the items of evidence the Appellants complain against are 'similar facts' evidence or 'propensity evidence' on the uncharged offence of larceny, I am firmly of the view that the evidence concerned collectively has a far greater probative value than the prejudicial value and for that reason alone, I venture to say that the said evidence has been properly admitted.

Under what rules of admissibility and relevancy could the impugned evidence have been adduced?

[54] Taylor[2] defines 'res gestae' as including everything that may be fairly considered "an incident of the event under consideration". It can be broadly defined as matters incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without a knowledge of which the main fact might not be properly understood. They are the events themselves speaking through the instinctive words and acts of the participants; the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it and serve to illustrate its character.

[55] Lord Wilberforce in Ratten v R [1971] A.C. 378; 56 Cr.A.R.18; [1971] 3 A.E.R.801; [1971] 3 W.L.R.930 said that the term res gestae may be used in at least three different ways:

(i) When a situation of fact (e.g. a killing) is being considered, the question may arise, when does the situation begin and when does it end. It may be arbitrary and artificial to confine the evidence to the firing of the gun or the insertion of the knife without knowing in a broader sense, what was happening.

(ii) The evidence may be concerned with spoken words as such (apart from the truth of what they convey). The words are then themselves the res gestae or part of res gestae, i.e. are the relevant facts or part of them.

(iii) A hearsay statement is made either by the victims of an assault or by a bystander indicating directly or indirectly the identity of the attacker. The admissibility of the statement is then said to depend on whether it was made as part of the res gestae.

[56] The admissibility and relevance of res gestae may be gathered from a large body of legal literature and judicial decisions and it could be summarised and condensed into three different situations.

(i) The facts which though not in issue are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.

(ii) Facts which are (a) occasion (b) cause or (c) effect, immediate or otherwise, of relevant facts or facts in issue and facts which constitute the state of things under which they happened and facts which afford an opportunity for their occurrence or transaction, are relevant.

(iii) (a) Facts showing or constituting motive for any fact in issue or relevant fact, (b) facts showing or constituting preparation for any fact in issue or relevant fact and (c) facts showing or constituting previous or subsequent conduct influencing or being influenced by any fact in issue or relevant fact, are relevant.

[57] On a careful consideration, I have no doubt that the items of evidence challenged by the Appellants as being only relevant to the charge of larceny and therefore should have been disregarded in respect of murder charges, are quite admissible and relevant under the principles applicable to the doctrine of res gestae. The impugned evidence has been properly admitted. Therefore there need not have been a direction by the High Court Judge to disregard them to the assessors. No substantial miscarriage of justice and prejudice has come upon the Appellants.

[58] It would not be complete, if I do not place on record that there was no application by the defence for a mistrial after the prosecution abandoned the charge of larceny and closed its case. Neither was there any request to the trial judge to direct the jury on the lines now suggested on behalf of the Appellants with regard to the items of evidence being objected to by them. It looks as if the defence had not considered the impugned evidence to be so prejudicial to the Appellants as to have required a direction by the judge to the assessors to ignore. The argument couched in ground three put forward by the Appellants seems to be an afterthought.

[59] Ground Four

'The Learned Trial Judge erred in law and in fact when he forced the Appellants' Counsel to continue representations despite informing the Court of his intention to withdraw.'

[60] The counsel for the Appellants entirely relied on the decision in R v. Cunningham [2010] 1 SCR 331; 2010 SCC 10 and has quoted extensively from the said judgment to buttress his argument.

[61] The sequence of events relating to this ground could be summarised as follows:

(i) On 31 August 2010 both Appellants had pleaded not guilty and trial had been fixed for 27 June 2011. Mr. I. Khan had appeared for the 01st Appellant and Ms. Vaniqi from Legal Aid Office had appeared for the 02nd Appellant. Pre Trial conference had been fixed for 06 May 2011.

(ii) Mr. Khan had filed an application to withdraw on 21 April 2011 and when it was supported on 26 April 2011, Mr. Chaudhry had appeared for the 02nd Appellant and informed court that Mr. Khan had gone abroad for medical treatments. The court had allowed Mr. Khan to withdraw from the case and the 01st Appellant had been granted time to retain another counsel.

(iii) On 05 May 2011 Mr. Naidu had appeared for both Appellants on the instructions of Mr. Chaudhry.

(iv) On 01 June 2011 Mr. Chaudhry had appeared for both Appellants and both parties had informed court that they were considering the agreed facts and moved for time.

(v) At the Pre Trial conference held on 06 June 2011 Mr. Chaudhry had appeared for both Appellants and moved for further time to obtain some documents from the State. The court had fixed the Pre Trial conference on 17 June 2011.

(vi) On 17 June 2011 Mr. S. Valenitabua of Gordon & Chaudhry Lawyers made an oral application to withdraw citing non-payment of legal fees by the Appellants.

(vii) A formal affidavit of an employee of the said firm had been filed in court on the 20 June 2011 in support of the said oral application indicating that the Appellants have defaulted in the payment of legal fees by the 10 June 2011 in terms of the agreement which had been signed on the 06 June 2011.

(viii) The application to withdraw had been supported on 21 June 2011 by Mr. S. Valenitabua who had stated to court that the withdrawal being sought was based solely on the non-payment of legal fees and Mr. Chaudhry had gone abroad expecting the appellants to pay the legal fees.

(ix) On 21 June 2011 the 02nd Appellant had submitted a letter to court stating that his legal representative wanted to withdraw from the case and seeking time to pay the legal fees. The 01st Accused had also informed court that he will have to retain a private counsel. Both have indicated their financial difficulties.

[62] The High Court Judge had mentioned in the Ruling dated 23 June 2011 that the withdrawal was rather belated and not being sought on the basis of conflict of interest between the Counsel and the Appellants or for ethical reasons. Even the undertaking to pay the fees had been obtained at the last minute having appeared for the Appellants for several days. He had stated that the trial was to commence on 27 June 2011 and the Appellants would not have sufficient time to obtain legal representation of another counsel if the withdrawal was allowed in which case the trial would have had to be postponed for them to get legal representation as they were charged with the most serious offence of murder. The Judge had also remarked that considering the trial roll of the High Court, in the case of an adjournment the case would have to be re-fixed for trail only in August/September 2012. Until then the Appellants would have to live with the serious charges in the indictment including murder hanging over their heads and the long wait could affect the state witnesses as well. He had also indicated that the time of court allocated to this trial would be wasted as there was adequate time to fix another trial to fill in the time slot.

[63] He has cited R v. Cunningham (supra) and the Practice Direction No.1 of 2011 dated 06 April 2011 in support his decision to refuse the application for withdrawal.

[64] It is pertinent to consider the relevant sections of the Practice Direction No.1 of 2011 dated 06 April 2011 issued by His Lordship the Chief Justice. It sets out some instances in which a counsel may be obliged to withdraw from a case. Instructions being withdrawn by the client, inability to represent the client satisfactorily, conflict of interest vis-à-vis the client or client and court, physical incapacity, hospitalisation are some examples. This is not an exhaustive list. However when a counsel needs to withdraw he should as a matter of courtesy and good practice appear personally and seek leave of court to withdraw on the mention or hearing date but preferably well before the next court date, particularly if that date is a trial date. Leave may not be easily granted at the commencement or during a trial and the court is unlikely to permit withdrawal inter alia where, though for valid reasons, the application is made at the last minute causing postponement of trial, waste of court time, counsel's fee is whole or in part has not been paid etc.

[65] Allowing or disallowing a withdrawal involves a consideration whether or not counsel may be able to continue to serve his or her client's best interests if he or she were ordered to continue and if leave were declined (see Ram Sharan v. Kanyawati [1969] 15 Fiji LR 220 at p. 223; Lockhart-Smith v United Republic [1965] E.A. 211 at p.265).

[66] It is clear from the chronology of events that Mr. Khan's application to withdraw had been made well in advance and supported by a valid reason and the court had quite correctly permitted the withdrawal. However the same cannot be said of the application made by or on behalf of Mr. Chaudhry. Even as late as 01st and 06th June 2011 Mr. Chaudhry had appeared for both Appellants and moved for time to consider agreed facts and collect some documents from the State which suggest that he was fully involved in the case and getting ready for trial on the 27 June 2011 and Pre Trial conference fixed in his presence on the 17 June 2011. He gave no indication whatsoever that he was not ready to represent the Appellants at the trial.

[67] The reason adduced for the last minute withdrawal was the non-payment of fees. It appears that the agreement on fees itself had been signed belatedly on the 06 June 2011. The matter of fees should have been attended to well before the counsel got entrenched in the proceedings of the case before court to a point of no return. Lack of due diligence appears to have taken place down the line at some point of time. The failure on the part of the Appellants to settle the agreed fees was not an acceptable ground for the court to allow the counsel to effect a last minute withdrawal.

[68] Therefore, I cannot find fault with the refusal of the High Court Judge to permit the withdrawal of counsel on the basis that non-payment of fees is not an acceptable ground and the application itself had been belatedly made. The undue waste of time of court and the long postponement of the trial that could have most likely resulted from the withdrawal are also valid reasons to justify the refusal which is in compliance with the Practice Direction No.1 of 2011 dated 06 April 2011 issued by His Lordship the Chief Justice.

[69] I shall now consider R v. Cunningham (supra) where the Supreme Court of Canada said inter alia that:

"The court's exercise of discretion to decide counsel's application for withdrawal should be guided by the following principles. If counsel seeks thdraw faaw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, the court should allow the withdrawal. If timing issue court is t is entitled to enquire into counsel's reas reasons. In either the case of ethical reasons or non-payment of fthe court must accept counsel's answer at face value and not enquire further so as to avoidavoid trenching on potential issues of solr-client privilege. If withdraw sought for an r an etan ethical reason, the court must grant withdrawal; if it is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel's request if it determines, after weighing all the relevant factors, that allowing withdrawal would cause serious harm to the administration of justice."

"The reasons in favour of courts exercising this jurisdiction are numerous. An acc who becomes unable able to pay his lawyer, may be prejudiced if he is abandoned by counsel in the midst of criminal proceedings. Proceedings may need to journed to allow the accused to obtain new counsel. T60; This delay rejudice tice the accused, who is stigmatized by the unresocriminal charges and who may be in custody awaiting trial. It may alejudice the the the Crown's case. Additional delay affects complainants, witnewitnesses and jurors involved in the matter, and society's interest in the expedient administration of jus Wthese types of inof interests are engaged, they may outweigh counsel's interest in withdrawhdrawing from a matter in which he or she is not being paid."

[70] I am of the view that the High Court Judge has correctly applied not only the Practice Direction No.1 of 2011 dated 06 April 2011 but also the principles enunciated in Cunningham's case. Therefore I see no reason to disturb his decision on the application of counsel to withdraw.

[71] Before parting with this appeal I must mention that there is not even an allegation that counsel who appeared for the Appellants had done anything short of his best in the conduct of the defence due to the dispute relating to the non-payment of professional fees. Thus, there is no question of the Appellants complaining of not having had a fair trial due to the refusal of their counsel's application to withdraw. In terms of section 23 (1) (a) of the Court of Appeal Act, an appeal could be allowed inter alia on any ground constituting a miscarriage of justice. The appellants have not elevated their complaint set out in ground four to that level either.

[72] I have given anxious consideration to all the grounds of appeal raised by the Appellants as they are facing life imprisonment with a non parole period of 20 years. I am convinced that on the evidence placed at the trial any reasonable assessors would have found the Appellants guilty on counts of murder and I am firmly of the view that their verdict is reasonable and could be supported having regard to the evidence. Therefore, for the reasons set out above in detail, I am unable to bring myself to agree with any of the grounds urged to overturn the conviction.

[73] Therefore, I would dismiss the appeal.

[74] Madigan JA

I have had the opportunity to read in draft the judgment of Prematilaka JA. There is nothing useful I might add to his judgment and I would dismiss the appeal for the reasons he propounds therein.

Hon. Justice W. Calanchini
PRESIDENT, COURT OF APPEAL

Hon. Justice C. Prematilaka
JUSTICE OF APPEAL

Hon. Justice P. Madigan
JUSTICE OF APPEAL

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^[1] Archbold Pleading, Evidence & Practice in Criminal Cases 39^th Edition p. 600.

^[2] Taylor, Law of Evidence, 11^th Ed., S.583, p.402