Ram v State [2015] FJCA 131; AAU0087.2010 (2 October 2015)

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

CRIMINAL APPEAL NO. AAU 0087 OF 2010
[High Court Crim. Case No. HAC 061 of 2009S]

BETWEEN:

ANESH RAM
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Fernando JA
Goundar JA

Counsel : Mr. M. Yunus for the Appellant
Mr. S. Vodokisolomone for the Respondent

Date of Hearing : 17 September 2015
Date of Judgment : 2 October 2015

JUDGMENT

Calanchini P
I have read the draft judgment of Goundar JA and agree with his reasoning and conclusions.

Fernando JA
I agree with the findings of Goundar JA and that the appeal against conviction should be allowed.

Goundar JA
[1] The appellant renews his application for an extension of time for leave to appeal his conviction and sentence for murder before the Full Court after it was refused by a single justice of appeal. The jurisdiction to determine a renewed application for leave is provided by section 35(3) of the Court of Appeal Act Cap. 12.

Procedural and Factual Background
[2] On 16 June 2008, a teenager discovered a decomposed body in a creek close to a playground in Narere. The police was informed. The body was retrieved from the creek. On 18 June 2008, Irene Lata identified the body to be of her 16-year old daughter (the victim), who had been missing for two weeks. Post mortem examination revealed that the victim died due to manual strangulation or throttling. The prosecution evidence was that the victim worked as a prostitute and was in a de-facto relationship with the appellant who at the time was 28 years old. However, at the time of her death, the appellant had ended his relationship with the victim but was in contact with her. Both lived in the same suburb.

[3] On 7 July 2008, an 18-year old girl, Ema Tauyavu gave a police statement implicating the appellant and six other men of rape and murder of the victim. Ema's account was that on 8 June 2008, the appellant organised a drinking party near a creek (where the victim's body was discovered), and invited her and the victim. At around 8pm, six other men joined them. While they were all drinking, the appellant struck the victim in the back of her neck with a beer bottle. The victim fell down. While victim was lying unconscious on the ground, the appellant had sex with her. After having sex, the appellant left.

[4] Ema stated the men who were present at the scene took turns to have sex with the victim while she was unconscious. Shortly after, the appellant returned to the scene with a cane knife inside a sack. He removed the knife and forced Ema to cut off the victim's breasts. Ema said the victim was her best friend. She cut off the victim's nipples using the cane knife. The appellant took the nipples. He then asked Ema to cut off the victim's right hand. When Ema refused, the appellant threatened to kill her. Ema said she took the knife and cut the victim's hand but the hand was not completely severed. Ema said all the other men were three footsteps away drinking when these things happened. She left when other men left, leaving the victim behind with the appellant. After the victim's decomposed body was discovered, Ema was forced by one of her friends to report the incident to the police. All seven men were arrested, interviewed under caution and charged with murder and rape.

[5] The trial commenced in the High Court at Suva on 6 September 2010. All accused including the appellant were represented by different counsel. One co-accused was acquitted on both charges while five co-accused were acquitted on the murder charge at the no case to answer stage. At the end of the trial, the five co-accused were found not guilty on the remaining charge of rape while the appellant was found guilty of murder but not guilty of rape. On 13 October 2010, he was sentenced to life imprisonment with a non-parole period of 20 years.

[6] On 10 November 2010, the appellant filed a Notice of Appeal against conviction and sentence. The appeal was filed by a new counsel. The appeal was advanced on the following grounds:

(i) that the learned trial Judge erred in law and fact in referring this matter to the assessors for determination when under all the circumstances of the case it was unsafe and unsatisfactory to do so.

(ii) that the learned trial Judge erred in law and in fact in not adequately directing/misdirecting the assessors on law regarding the accomplice evidence and evidence given in exchange for immunity from prosecution.

(iii) that the learned trial Judge erred in and in fact in not adequately directing the assessors to disregard all the media reports including TV coverage that existed before the trial and during the trial of the appellant.

(iv) that the learned trial Judge erred in law and in fact in not adequately directing that the prosecution evidence before the Court demonstrated that there were serious doubts in the prosecution case and as such the benefit of doubt ought to have been given to the appellant.

[7] On 21 September 2012, after hearing, a single justice of appeal refused leave on all grounds by giving detailed reasons. The appellant was present with his counsel during the hearing and when the written ruling refusing leave was delivered.

[8] The learned single justice of appeal described the first ground as 'patently nebulous' and lacking in particulars and that the ground was unarguable because it was open to the assessors to find the appellant guilty on the circumstantial evidence. In respect to the second ground of appeal, the learned single justice of appeal concluded that the prosecution witness, Ema was not an accomplice to warrant an accomplice direction on her evidence. In respect to the third ground of appeal, the learned judge agreed that there was no specific direction given on the media coverage but the trial judge's direction that the assessors' decisions must be based exclusively upon the evidence heard in Court and upon nothing else was sufficient to dispel any prejudice arising from media coverage of the case. In respect of the fourth ground of appeal, the learned single justice of appeal stated that the trial judge had not crossed any boundaries of unfairness in his summing up and that the assessors were quite clearly reminded of the appellant's alibi.

[9] In respect to the sentence appeal, the learned single justice of appeal concluded that the sentence appeal was unarguable and the minimum term of 20 years was justified.

[10] Almost eight months after leave was refused, the appellant gave notice of his desire to have the Full Court to determine his application for leave. That Notice is dated 6 May 2013, and was filed in person by the appellant. Subsequently, legal aid was approved and the legal aid counsel has filed the following grounds of appeal:

Appeal Against Conviction
Ground A - The Learned Trial Judge erred in law and in fact when he directed the assessors about the elements of the offence of murder by giving examples which were similar to the facts of the case against the appellant resulting in a substantial prejudice of the appellant.

Ground B - The Learned Trial Judge erred in law and in fact when he failed to properly guide the assessors on how to approach and weigh the fresh evidence of uncharged acts.

Ground C - The Learned Trial Judge erred in law and in fact when he did not direct and/or guide the assessors on the cross examination of the prosecution witness by the appellant resulting in a substantial miscarriage of justice.

Ground D - The Learned Trial Judge erred in law and in fact when he did not direct himself and the assessors that prosecution witness Ema Tauyavu, would have implicated the Appellant to save herself.

Ground E - The Learned Trial Judge erred in law and in fact when he failed to properly direct his mind to the alibi evidence raised by the appellant.

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

Ground G - The Learned Trial Judge erred in law and in fact when he did not direct and/or guide the assessors on how to approach the evidence contained in the caution interview of the appellant, which was part of the prosecution evidence.

Ground H - The Learned Trial Judge erred in law and in fact when he failed to direct or guide the assessors to consider whether Ema Tauyavu's act of cutting the hand and nipple of the deceased was done under imminent threat of life.

Appeal Against Sentence
Ground A - The Learned Trial Judge erred in law by fixing a non-parole period pursuant to section 18(1) of the Sentencing and Penalties Decree 2009.

Ground 1- Use of unfair example to explain elements of murder
[11] In crafting his arguments on the first ground of appeal, counsel for the appellant submits that the trial judge's use of an example to explain the elements of murder to the assessors fitted the prosecution case and was prejudicial to the appellant. The gist of the appellant's complaint is that the trial judge's directions lacked fairness and objectivity required in a summing up.

[12] In Tamaibeka & Katonivualiku v The State, unreported Cr. App. No. AAU0015 of 1997S; 8 January 1999, this Court said at p 27:

"In considering the effect of the summing up it is necessary to look at it overall to judge whether it was a fair and objective presentation of the case for the prosecution and the case for the defence."

[13] Later at p 29, the Court observed:

"A judge is entitled to comment robustly on either the case for the prosecution or the case for the defence in the course of a summing up. It is appropriate that he puts to the assessors clearly any defects he sees in either case. But that must be done in a way that is fair, objective and balanced. If it is not, the independent judgment of the assessors may be prejudiced. If all the issues are put in a manner favourable to one party and unfavourable to the other, the assessors may feel bound to follow the view expressed by the Judge.

[14] The impeached directions are at paragraphs 12-15 of the summing up:

12. An "unlawful act" is simply an act not justified in law. For example, A and B are boyfriend and girlfriend. They lived together as man and wife for 12 months. A became jealous of B, because she goes out with other men, behind his back. A organized a party, got B drunk, and later strangled her to death, by pressing both his hands on her neck. The "act of strangling B" is an unlawful act", because it's not justified in law. It is an unlawful application of force to the person of another, and it is an "assault", which is "an unlawful act".

13. The "unlawful act" must "cause the death of the deceased". This is the second element of murder. Continuing from the above example, when A strangled B on the neck, he caused B to stop breathing, resulting in her death. In other words, A, by throttling B, deprived her body of oxygen (air), thereby resulting in her death. The "unlawful act" of throttling, was the substantial and major cause of B's death. Without throttling, B's body wouldn't be deprived of oxygen, and she would still be alive. The throttling was the substantial cause of death.

14. The third element of murder is outlined in paragraphs 11(iii) (a), (b) and (c). This concerned the accused's mental state at the time he was committing the unlawful act. Referring to the above example, what was A's mental state at the time, he was throttling B to death? Did A intend to kill B? Did A intend to cause B serious harm? Did A know that death or serious harm would be caused on B, but nevertheless went on to strangle her?

15. As a matter of common sense, no one can look into a person's brain, to ascertain his intentions, at the time he was doing the unlawful act. Nevertheless, the person's intention could be inferred from his physical actions, spoken words, and the surrounding circumstances. You must put yourselves in the shoes of the accused, and from his physical actions, spoken words, and the surrounding circumstances, you should be able to ascertain his intentions, at the time he was doing the unlawful act. Referring to the example mentioned above, A was jealous of B, because she was going with other men behind his back. A therefore wanted to get back at B. The act of "throttling B to death" obviously showed that he intended to cause B's death, or cause her serious harm. That was sufficient to constitute the third element of murder.

[15] The trial judge's directions on the elements of murder are correct. Also, there is nothing wrong to use examples to explain the elements of an offence to lay assessors. At trial, there was no direct evidence that the appellant had strangled the victim to death. The only incriminating evidence against the appellant was Ema's testimony, who said that after she had cut off the victim's nipples and right hand under duress, she left the victim alone with the appellant. The prosecution case was that the appellant manually strangled the victim to death and disposed her body in the creek when Ema and others left because he was jealous of the victim seeing other men.

[16] After looking at the overall summing up, there were some obvious deficiencies in the prosecution case. Firstly, the entire prosecution case against the appellant was based on the evidence of Ema, who the defence alleged was an accomplice. Secondly, there was no evidence that the victim was alive after she was assaulted with a bottle, gang raped and parts of her body cut off. Thirdly, there was no evidence to link the appellant to the unlawful act of strangulation that caused the victim's death.

[17] While I accept that strangulation or throttling is a form of an assault and is an unlawful act, the trial judge's use of an example of a jealous husband throttling his wife after planning it, in my judgment lacked objectivity and fairness required for a fair trial. The directions on the example could have been perceived by the assessors as bolstering the prosecution case and not highlighting the deficiencies in the evidence led by the prosecution. The trial judge was required to give a balanced view of the example to explain the elements of murder. The choice and the manner in which the trial judge used the example to explain the elements of murder gave an impression that the appellant was guilty of murder. In this regard, the summing up was unfair to the appellant. This ground succeeds.

Ground 2- Evidence of uncharged acts
[18] At trial, the prosecution led evidence of assaults on the victim by the deceased when they were domiciling together. The appellant did not dispute the assaults. In fact in his caution interview and in his evidence, he admitted assaulting the deceased on a few occasions because the victim had assaulted his mother. Although the victim had reported the assaults to the police, there was no evidence that the appellant was ever charged with the assaults.

[19] Clearly, the evidence of assaults on the victim by the appellant was relevant evidence. The relationship evidence was led by the prosecution to show a volatile relationship giving the appellant a motive to kill the victim. The defence, on the other hand, offered an explanation for the assaults to rebut the prosecution's inference of motive. In any event, the defence did not object to the admissibility of this evidence at the trial. In my judgment, the evidence of uncharged domestic assaults on the victim by the appellant was relevant and was properly led. Once admitted it was a matter for the assessors to consider whether the evidence showed motive on behalf of the appellant to kill the victim. This ground has not been made out.

Ground 3 – Failure to direct on cross-examination of the prosecution witnesses
[20] The appellant submits that in his summary of the evidence to the assessors, the trial judge failed to highlight the evidence elicited on cross-examination of the prosecution witnesses that was favourable to the defence case. Apart from making this bold assertion, the appellant does not point to the evidence that was favourable to the defence case and was not highlighted by the trial judge in his summing up. This ground is too vague and cannot succeed.

Ground 4 – Witness with an interest
[21] At trial, the appellant's counsel fervently contended that Ema was an accomplice and her evidence should be subject of an accomplice direction. However, counsel for the appellant on appeal has taken a slightly different view from counsel who represented the appellant at the trial. Mr Yunus submits that although Ema might not have been an accomplice, an accomplice warning should have been given on her evidence in any event, because her evidence may have been tainted by an improper motive, namely, an assurance from the police that she would not be charged if she gave evidence. Under cross-examination, Ema admitted that an assurance to that effect was made to her by the police although the prosecution had not granted her a formal written immunity. Despite the admissions made by Ema, the trial judge gave the following directions at paragraphs 35-37:

35. Throughout the trial, the defence had been trying to persuade you that Ema is an accomplice of the accuseds in this trial. If they are correct on this issue, then the law requires the trial judge to issue the standard accomplice warning to you, that is, it is dangerous to convict an accused on the basis of an accomplice's evidence unless it is corroborated by independent evidence, although you are entitled to rely on it, if you are convinced it is the truth.

36. As a matter of law, an accomplice is a person who voluntarily participates in the actual crime charged, either as principals or as parties assisting or aiding and abetting someone in committing the crime charged. In this case, Ema said she cut Zoya Bibi's nipples and hands, at the crime scene, on 8th June 2008. She said, Anesh Ram forced her to do it and threatened to kill her, if she didn't do as she was told. She said, she refused and resisted at first, but was frightened of Anesh, and as a result, did the act under duress. Ms. Vaniqi for accused No. 1 and 2 and Ms. Vukikimoala for accused No. 3, appeared to downplay the above evidence that, Ema did the above acts under duress. They appeared to say that because Ema cut Zoya's nipples and hands on 8th June 2008, that in itself, made her an accomplice in the murder and rape of Zoya Bibi.

37. It would appear from the above that Ema did not voluntarily cut Zoya's nipples and hands. She was threatened she would lose her life if she didn't do so. In any event, at the time, Ema did not have the intent to kill or aid and abet Zoya's rape. On any view of the evidence, it could not be said that Ema was a voluntary participant in the murder of Zoya Bibi, and thus, in law, it could not be said that she was an accomplice of Anesh Ram, in the alleged murder of Zoya Bibi. As a result, an accomplice warning is not necessary in this case, because Ema is not an accomplice.

[22] Clearly, the last statement is a misdirection. Almost sixty years ago, the House of Lords in the case of Davis v DPP [1954] 38 Cr App R 11 not only explained who an accomplice is, but said at p 35:

"But there are other cases within this field in which there is evidence on which a reasonable jury could find that a witness was a "participant". In such a case the issue of "accomplice vel non" is for the jury's decision: and a judge should direct them that if they consider on the evidence, that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated: though it is competent for them to do so if, after that warning, they still think fit to do so".

[23] In Mudaliar v The State, unreported Cr App No AAU0032 of 2006; 23 March 2007, this Court referred to the case of Davis and said at para [36]:

"Whether a particular witness is an accomplice is a matter for the assessors and they should be directed accordingly; Davis v DPP at p35."

[24] There is no doubt that Ema was a crucial witness for the prosecution. She was the source of all the incriminating evidence against the appellant. Although Ema gave evidence of motive and opportunity for the appellant to kill the victim, her evidence also raised questions about her involvement in the alleged killing. The victim was in her company when the appellant approached them and invited them to join him at night time for a drinking session at an isolated location. She accepted the invitation and voluntarily accompanied the appellant and the victim for drinks despite her evidence that the appellant had earlier made death threats to her and the victim.

[25] Ema admitted cutting off the victim's nipples and left hand under duress, but instead of going to the police, she changed her home, and only went to the police after being forced by a friend after the discovery of the victim's body. She admitted she was intoxicated and high on drugs when she cut off the victim's nipples and right hand, yet, she was able to identify the knife she had used in the dark, and was given to her by the appellant and later seized by the police from the appellant's home.

[26] Ema admitted that prostitutes are very territorial and the victim who was very beautiful operated from the same location as her and that the victim was a liability for her. After the alleged incident involving the appellant, instead of implicating the appellant, she admitted lying to one of her friends that she had killed a girl by the name, Monika.

[27] All these aspects of Ema's evidence placed her in the category of cases where the trial judge should have left the question of whether the witness was an accomplice to the assessors to decide by giving full accomplice warning and pointing out to the assessors the evidence which may be capable of corroborating the witness. This ground succeeds.

Ground 5 – Failure to give alibi directions
[28] Before the trial commenced, the appellant applied for leave from the trial judge to file a formal notice of alibi. The prosecution opposed leave saying the notice was given on the eve of the trial. The trial judge refused the appellant to file a formal notice of alibi but allowed him to lead evidence of his alibi as contained in his caution interview. In his caution interview, the appellant first said he was at his home when the alleged incident arose. When the police verified the appellant's alibi with his mother, the mother was unable to confirm the appellant's alibi. Upon further questioning, the appellant said he was at his neighbour's home drinking kava when the alleged incident arose and he lied about the initial alibi to protect his mother. There was a witness called by another co-accused who confirmed that the appellant was with him drinking kava at the time of the alleged incident.

[29] When an accused relies on alibi as his defence, in addition to the general direction of the burden of proof, the jury (in Fiji the assessors) should be directed that the prosecution must disprove the alibi and that even if they conclude that the alibi was false, that does not by itself entitle them to convict the accused (R v Anderson [1991] Crim. LR 361, CA; R v Baillie [1995] 2 Cr App R 31; R v Lesley [2006] EWCA Crim 2000; [1996] 1 Cr App R 39; R v Harron [1996] 2 Cr App R 457). In the present case, the appellant had admitted that initially he had given a false alibi to protect his mother but the summing up contains no directions on alibi at all. This ground succeeds.

Ground 6 – Directions on circumstantial evidence
[30] In the present case, there was no direct evidence that the victim was manually strangled by the appellant. Even Ema who gave detailed account of the alleged incident, made no mention of the appellant strangling the victim. To overcome this deficiency in evidence, the prosecution relied on circumstantial evidence. At paragraph 42 of the summing up, the trial judge invited the assessors to draw an inference based on Ema's testimony that the appellant strangled the victim when Ema and others had left the scene. The trial judge then repeats Ema's testimony at paragraph 49 of the summing up from which such an inference could be drawn.

[31] The use of circumstantial evidence by the prosecution to prove guilt of an accused does not require the trial judge to give special directions (Waisu v The State, unreported Cr App No. AAU0041 of 2007S; 12 March 2008 at para. 8). What is required of the trial judge is to make it plain to the assessors that if they are relying on the circumstantial evidence to infer guilt then they must not convict unless they are satisfied of the guilt beyond reasonable doubt (Boila v The State, unreported Cr App No. CAV005 of 2006; 25 February 2008). In the present case, the summing up lacks this essential direction on the circumstantial evidence relied upon by the prosecution to prove guilt. This ground succeeds.

Ground 7 – Lack of directions on the caution interview
[32] At trial, the appellant's caution interview was tendered in evidence with his consent. The caution interview contained exculpatory statements. He made no admissions. His interview contained his alibi, which he relied on as his defence at the trial. I find the appellant's submission that the trial judge should have given directions equivalent to the directions on the use of a confession made under caution to be misconceived. No such direction is required for exculpatory statements made under caution. This ground fails.

Ground 8 – Lack of duress directions on Ema's evidence
[33] Duress or compulsion is a statutory defence in Fiji. Compulsion was defined by section 16 of the Penal Code, Cap. 17 (now repealed) as follows:

"A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence.

[34] Clearly, duress or compulsion only applies to an accused to exonerate him or her from criminal responsibility. Duress direction is not required for a witness who is not charged with any offence. I find the appellant's submission that the trial judge should have given full duress direction on Ema's evidence to be misconceived. This ground fails.

Result
[35] Since the appellant has succeeded on grounds 1, 4, 5 and 6, I am obliged to consider the effect of the errors made by the trial judge in his summing up on the appellant's conviction. In my judgment, the combination of misdirections on the law or inadequate directions on the real issues had caused the trial to miscarry. Clearly, the proviso cannot be applied to this case. I am also obliged to consider whether there should be an order for a new trial. The unlawful act alleged by the prosecution was strangulation. There was no evidence to link the appellant to the alleged unlawful act. Given the deficiencies in the prosecution case, it is not in the interests of justice to order a new trial. I would grant leave, allow the appeal, quash the conviction and enter a verdict of acquittal. It is not necessary to deal with the sentence appeal.

The Orders of the Court are:
Leave granted.
Appeal allowed.
Conviction quashed.
Acquittal entered.

Hon. Mr. Justice W. Calanchini
PRESIDENT

Hon. Mr. Justice A. Fernando
JUSTICE OF APPEAL

Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent