Niume v State [2015] FJCA 132; AAU0106.2011 (2 October 2015)

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

CRIMINAL APPEAL NO. AAU 0106 OF 2011
[High Court Crim. Case No. HAC 0010 of 2010]

BETWEEN:

EPARAMA NIUME
JOVECI NAIKA
Appellants

AND:

THE STATE
Respondent

Coram : Basnayake JA
Fernando JA
Goundar JA

Counsel : Mr. J. Savou for the 1st Appellant
2nd Appellant in Person
Mr. L. J. Burney & Mr. E. Samisoni for the Respondent

Date of Hearing : 16 September 2015
Date of Judgment : 2 October 2015

JUDGMENT

Basnayake JA
I agree the appeals should be dismissed for the reasons given by Goundar JA.

Fernando JA
I agree with the findings of Goundar JA and that the appeals should be dismissed.

Goundar JA
[1] The appellants were charged and tried on two counts of murder contrary to sections 199 and 200 of the Penal Code, Cap. 17. The assessors were of a unanimous opinion that the appellants were guilty of both murders. The trial judge convicted the appellants, and on 6 October 2011, they were sentenced to life imprisonment. Eparama Niume (the 1st appellant) was ordered to serve a non parole period of 25 years' imprisonment, for being the principal offender. Joveci Naika (the 2nd appellant) was ordered to serve a non-parole period of 14 years' imprisonment because of his youth at the time of the offending. A third accused, Apenisa Lino was convicted for accessory after the fact for murder and sentenced to 9 months' imprisonment. He has not appealed.

[2] Both appellants filed timely applications for leave to appeal their convictions for double murder. On 14 August 2013, Calanchini P granted the 2nd appellant leave to appeal against conviction on two grounds relating to joint enterprise, while the 1st appellant's application for leave was referred to the Full Court.

[3] On 23 July 2015, counsel for the 1st appellant filed an amended Notice of Appeal containing the following one ground of appeal:

"The trial miscarried as a result of the failure of the trial Judge to declare a mistrial following the co-accused's (Joveci Naika) incriminating evidence against the Appellant."

Facts
[4] The victims, Ashok Chand and Mohini Lata were in a de-facto relationship. They lived together and operated a small soap manufacturing business at Valelevu. They employed the 2nd appellant and another accused, Soroveli Qetaki as workers. Initially, Soroveli was jointly charged with the appellants, but later the charges were withdrawn, and he was granted immunity from prosecution by the State. At the time of the alleged incident, he was about 19 years old and had been working for the victims for about two months.

[5] Soroveli's evidence implicated both appellants. He said he agreed with the 2nd appellant to rob the victims because he knew the location of the safe where the victims kept cash. The building used to manufacture soap was a two-story structure. The bottom floor was used for office and manufacturing. The top floor was used for residence. There was an internal stairs leading from the bottom floor to the residence. Soroveli said the 2nd appellant had arranged to meet the 1st appellant to discuss the plan to rob the victims. They met at a shopping centre. Soroveli knew the 1st appellant by the name "Mana". Soroveli also knew that the 1st and 2nd appellants were cousins.

[6] On 19 December 2009, Soroveli came to work. The 2nd appellant also turned up for work, but Ashok sacked him in the morning for being a slow worker. It appears that the 2nd appellant remained in the premises after being sacked. Shortly before Ashok returned to his office after doing his routine runs in the afternoon, the 1st appellant sneaked inside the premises and hid inside the staff toilet near the soap section together with the 2nd appellant. Ashok entered the premises and went straight to his office. Mohini was upstairs in her room. While Ashok was in his office, Soroveli went and informed him that the 2nd appellant was still working with him despite being sacked earlier in the morning. Without responding, Ashok got up and walked towards the soap section. As Ashok came close to the toilet, the 1st appellant grabbed him by the collar and stabbed him multiple times. The stabbing occurred outside the toilet. At that point, Soroveli did not know the whereabouts of the 2nd appellant. Ashok was on the floor in a pool of blood and grasping for breath.

[7] Shortly after Mohini came down the stairs, Soroveli heard the 1st appellant telling the 2nd appellant to grab hold of Mohini. Soroveli saw the 2nd appellant come out of the toilet and grabbed Mohini and brought her to where Soroveli was standing. The 2nd appellant took Mohini inside the toilet and made her sit on the toilet pan. The 2nd appellant stood beside the 1st appellant when he stabbed Mohini inside the toilet. After stabbing Mohini, all three went upstairs to find the safe but they could not locate it. They fled the scene when they could not find the safe. Later in the evening when Soroveli was at his home, the 2nd appellant came and gave him a pair of sliver bangles which Soroveli later exchanged with his grandmother for cigarettes.

[8] One evening during the Christmas break, the 1st appellant approached Soroveli with a plan to steal the victims' vehicle from Valelevu premises. They went back to the premises but were unsuccessful with their plan. However, on a second attempt, they managed to steal the vehicle and they were seen by police officers while riding in the vehicle.

[9] In cross-examination, Soroveli admitted that he conspired or planned with the appellants to assault Ashok Chand and that plan included stealing from the safe. Soreveli said on 19 December 2009, he heard Ashok chasing the 2nd appellant, after which he heard the 2nd appellant speaking to the 1st appellant on mobile. He heard the 2nd appellant refer to the 1st appellant by his name "Mana". Soroveli said he was 'about arms length' away when the 2nd appellant made the call but he did not know the nature of the conversation. Shortly after making the call, the 2nd appellant went out and returned with the 1st appellant when the alleged incidents occurred.

[10] At trial, the 1st appellant elected to remain silent. The 2nd appellant elected to give evidence. He was about to turn 18 years when the alleged incident arose. His evidence was that he had been working for the victims for a week when he received his first pay. He said he was unhappy that he had received a low pay. He shared his concern with Soroveli. They agreed to arrange someone to rob the victims' safe where they kept cash. The 2nd appellant arranged the 1st appellant and three of them met one evening and made a plan to rob the victims.

[11] In accordance with the plan, on 19 December 2009, the 2nd appellant and Soroveli came to work. They remained in the premises until the 1st appellant arrived in a taxi. The 2nd appellant went and fetched the 1st appellant. They entered the premises and hid inside the toilet. They knew the victims were inside the premises. The 1st appellant told the 2nd appellant to pick up something to use as a weapon. The 2nd appellant grabbed hold of a metal rod handed to him by the 1st appellant. When he heard Ashok come down the stairs, the 2nd appellant said he dropped the iron rod he had been holding and told the 1st appellant not to harm Ashok. As Ashok came closer to the toilet, the 1st appellant jumped outside and the 2nd appellant heard Ashok yelled a few times and then he stopped.

[12] The 2nd appellant said he heard Mohini ran down the stairs and called out for help. At that point the 2nd appellant came out of the toilet and saw the 1st appellant holding Mohini and trying to strike her with a piece of metal and a kitchen knife. The 2nd appellant said he saw Ashok lying in a pool of blood outside the toilet. The 2nd appellant said he intervened to stop the 1st appellant from hurting Mohini but the 1st appellant swung the knife at him injuring his left eye lid.

[13] The 2nd appellant said when this incident happened, Soroveli was outside guarding the premises with the main entrance door being locked from inside. The only mode of communication between them was through mobile phones. The 2nd appellant said he called Soroveli because he knew the location of the safe. When 2nd appellant went to open the door for Soreveli, Mohini was alive. When he returned with Soroveli, the 1st appellant told him Mohini was in the toilet alive. They went upstairs but could not locate the safe. They found $600.00 cash in the room, which they shared among themselves. They also took Ashok's mobile phone and laptop. They came downstairs and sat down. They stayed behind for a while and listened to the music on the phone and sang. After a while, they left the premises around 3 pm because that is the time they finish work on Saturdays.

[14] On 5 January 2010, the police discovered the bodies of the victims inside their Valelevu premises. Both bodies were inside a toilet. Although the bodies were heavily decomposed, injuries to the bodies were visible. Post mortem examination revealed Ashok was stabbed 17 times while Mohini was stabbed 13 times on the chest. The examination also revealed that a metal object was inserted into the vagina of the female body. Both victims died of haemothorax (blood in the pleural cavity) consistent with multiple stab injuries to the chests.

Appellant Nuime's appeal
[15] The sole basis upon which the 1st appellant challenges his convictions is that his trial miscarried when his co-accused gave evidence implicating him to the alleged offences. No authority has been cited to support this argument.

[16] Counsel for the State submits that the 1st appellant's sole ground of appeal is wholly misconceived. I agree. It is well established law that, while a statement made in the absence of the accused person by one of his co-accused cannot be evidence against him, if a co-accused goes into the witness box and gives evidence in the course of a joint trial, then what he says becomes evidence for all the purposes of the case including the purpose of being evidence against his co-accused (Leonard Rudd (1948) 32 Cr App R 138, 140; Ram Asre v Reginam [1965] 11 FLR 214, 218).

[17] At trial, the appellants were represented by different counsel. Neither was there an application made for a separate trial, nor was the trial judge asked to rule on a mistrial when the 2nd appellant gave incriminating evidence against the 1st appellant. Nevertheless, the trial judge properly warned the assessors to consider the 2nd appellant's evidence with caution because he may have an interest of his own purpose of saving himself.

[18] The prosecution case against the 1st appellant was based on his confession made under caution and ruled admissible, and Soroveli's evidence that the 1st appellant repeatedly stabbed the victims. The 1st appellant takes no issue with the evidence led against him by the prosecution. Given the 1st appellant's misconceived ground of appeal, I conclude that his appeal is frivolous and should be dismissed.

Appellant Naika's appeal
[19] The 2nd appellant challenges his convictions on two grounds associated with the principle of joint enterprise. His first ground is that he had no knowledge of the weapon that was used by his co-accused to kill the victims. His second ground is that he had withdrawn from the joint enterprise.

Secondary liability for murder
[20] In Fiji, secondary liability for murder is governed by statute. At the time of the offending, the relevant provision was section 22 of the Penal Code, Cap. 17 (repealed). Now it is section 46 of the Crimes Decree 2009 for offences committed after February 2010. Both provisions are in identical terms. Section 22 of the Penal Code, Cap. 17 stated:

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

[21] At trial, the 2nd appellant did not dispute that he was part of a joint enterprise to rob the victims. He maintained that stance on appeal as well. His dispute relates to the second limb of section 22, that is, whether murder was a probable consequence of carrying out the planned robbery. At the time of the offending, murder was defined by section 199(1) of the Penal Code, Cap. 17 (now repealed) as follows:

"199.-(1) Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder..."

[22] Section 202 of the Penal Code, Cap. 17 defined malice aforethought as follows:

Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:

(a) an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not;

(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.

[23] The test for secondary liability for murder under section 22 is whether each participant contemplated the probability of death or infliction of serious harm on the deceased in the execution of the planned unlawful purpose (Kumar & Ors. v. R [1987] SPLR 131, 134). The contemplation does not need to be express. It may be implied. As the Privy Council in Chan Wing-Siu v The Queen [1985] AC 165, 175 said:

"It [the principle] turns on contemplation or, putting the same idea in other words, authorization, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight."

[24] The trial judge's directions on joint enterprise are at paragraphs 25-28 of the summing-up:

"25. The law also says that where two or more persons form a common intention, to do something unlawful together, and while doing something to further that purpose, an offence is committed of such a nature that its commission was a probable consequence of that purpose, each of those who had formed the common intention and had furthered that intention, is deemed to have committed the offence.

26. Let me give you an example. When several men decide to break into a house armed with dangerous weapons, and they are disturbed by a policeman who is killed because of the man uses his weapon, each of the accused is guilty of the murder of the policeman even if only person used the weapon. This is because when several people decide to commit burglary with dangerous weapons, the fact that the weapons might be used, and someone is killed as a result, is a probable consequence of the common intention to commit burglary with weapons. However, if the use of weapons was not contemplated by the others, and they did not know that the main offender was carrying a weapon, then there is no joint enterprise, and the secondary parties cannot be guilty of the murder.

27. The question of whether there was such a common intention in this case, shared by each of the accused, and whether the deaths of Ashok Chand and Mohini Lata were probable consequence of that common intention, is a matter for you to decide, on the basis of the evidence in this case. In this case the 2nd accused giving evidence said that the 1st accused told him pick something as a weapon. As he couldn't find anything, 1st accused had given him an iron rod as a weapon. Further he admitted that he agreed to assist the 1st accused in the robbery as Apenisa who was expected to join the 1st accused Eparama did not come. There must be evidence either direct or circumstantial of common intention. Sometimes, however the common intention would occur on the spur of the moment.

28. In this case the prosecution says that the 2nd accused acted in joint enterprise with the 1st accused in committing the murders of the two deceased persons. There is no dispute that they had a common intention to commit robbery. Therefore you must consider whether the 2nd accused could have had the knowledge that a probable consequence of grievous hurt or death could result in carrying out their joint enterprise."

[25] The 2nd appellant takes no issue regarding the directions on joint enterprise as it relates to him. His complaint relates to lack of evidence to attach secondary liability for murder on the basis that he had no knowledge of the weapon (knife) used by the 1st appellant to inflict the fatal injuries on the victims. This contention has some force if we are to apply the English test for secondary liability for murder as enunciated by the House of Lords in R v Rahman [2008] EWHC 124; [2008] 4 ALL ER 351. In Rahman, the test for secondary liability for murder in England and Wales was summarized by Lord Brown at [68] as follows:

"If B realizes (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A's act is to be regarded as fundamentally different from anything foreseen by B." (The italicised words are designed to reflect the English qualification)."

[26] Counsel for the State submits that the English test for secondary liability for murder, which is known as "fundamentally different" test in common law and has no application in Fiji because of the difference in the statutory provision for secondary liability for murder under section 22 of the Penal Code, Cap. 17. Mr Burney refers to a judgment by the New Zealand Supreme Court in Edmonds v R, unreported SC 57/2011; 20 December 2011 that has carried out a comparative analysis of approach taken in New Zealand and other common law jurisdictions to the issue of secondary liability for murder. In New Zealand, the secondary liability for murder is attached pursuant to section 66(2) of the Crimes Act 1961(NZ), which correspond closely to section 22 of the Penal Code, Cap. 17.

[27] In the case of Edmonds, the New Zealand Supreme Court highlighted the problems associated with the English "fundamentally different" test and considered its applicability in New Zealand when the statutory provision for secondary liability for murder is different. The New Zealand Supreme Court rejected the English "fundamentally different" test for the following reasons at [47]:

"The approach of New Zealand courts to common purpose liability must be firmly based on the wording of s 66(2). That section recognises only one relevant level of risk, which is the probability of the offences in issue being committed. If the level of risk recognised by the secondary party is at that standard, it cannot matter that the actual level of risk was greater than was recognised. It follows that there can be no stand-alone legal requirement that common purpose liability depends on the party's knowledge that one or more members of his or her group were armed or, if so, with what weapons. As well, given the wording of s 66(2), there is no scope for a liability test which rests on concepts of fundamental difference associated with the level of danger recognised by the party. All that is necessary is that the level of appreciated risk meets the s 66(2) standard."

[28] While the English "fundamentally different" test was rejected in Edmonds, the New Zealand Supreme Court at [48] recognized that there would be circumstances in which knowledge of the weapon direction may be required as part of the trial judge's discussion of the evidence, in particular relation to:

(a) establishing the extent of the common purpose;

(b) deciding whether the party recognised that the commission of the offence was a probable consequence of the commission of the common purpose; and

(c) determining whether the offence committed by the principal was in the course of the implementing of the common purpose.

[29] But whether such a direction is practically required will depend very much on the particular circumstances of the case and the particular charge which the alleged party faces (Edmonds at [52]).

[30] In the present case, the trial judge's directions on secondary liability for murder under section 22 of the Penal Code, Cap. 17 are impeccable. After the assessors' expressed a unanimous opinion that the 2nd appellant was guilty of the double murder, the trial judge made his own findings and agreed with the assessors that the 2nd accused was liable for the double murder pursuant to section 22 of the Penal Code, Cap. 17. The trial judge's reasons are at paragraphs [5]-[8] of his judgment:

"5. Soroveli, the accomplice, gave evidence that the 2nd accused grabbed the deceased Mohini Lata. There was no dispute that the 2nd accused was physically present there to assist the 1st accused in committing the robbery.

6. Apart from Soroveli's evidence against the 2nd accused, the 2nd accused himself giving evidence admitted that he was involved in the planning of the robbery. The 2nd accused also admitted that he held the iron rod which was given to him by the 1st accused as a weapon. However he said that the iron rod fell from his hand when he heard Ashok (the deceased) coming towards the toilet. The 2nd accused also admitted that if the iron rod was used it would have caused serious injury.

7. It was day time, and both 1st and 2nd accused knew that both decease persons were inside the house. Therefore the 2nd accused could have had the knowledge, that it was a probable consequence that grievous hurt or death would result if the deceased persons confront them and if they used the weapon he carried. Common intention to cause grievous harm or death would occur on the spur of the moment. The 2nd accused did not try to escape, in his own evidence, from the scene. Further the 2nd accused had been listening to music with Soroveli in the bleach room for about 2 hours until 3.00pm even after he knew that Ashok was murdered. He himself admitted in evidence that he feared that the 1st accused would do harm to Mohini. Still he left to search of the safe with Soro leaving Mohini with 1st accused according to him.

8. In the circumstances I find that the prosecution has proved beyond reasonable doubt that the 2nd accused acted in joint enterprise with the 1st accused to commit murder of the deceased persons, Ashok Chand and Mohini Lata."

[31] The powers of this Court to intervene with a verdict of conviction are set out in section 23 (1) of the Court of Appeal Act, Cap. 12. Section 23 (1) provides:

"23.-(1) The Court of Appeal –

(a) on any such appeal against conviction shall allow the appeal if they think that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal."

[32] The appellant's complaint of lack of evidence on secondary liability for murder raises the question whether the trial court's verdict cannot be supported by the evidence. The main issue for the trial court was whether serious harm to the victims was within the 2nd appellant's contemplation when he ventured into committing robbery.

[33] There was evidence from which the trial court could have inferred that the 2nd appellant might have contemplated serious harm to the victims. There was evidence that the 2nd appellant initiated the plan to rob the victims. He arranged the 1st appellant to be part of the plan. He knew the victims were inside the premises when he went and fetched the 1st appellant from outside. He held on to a weapon (metal rod) rather than discarding it when it was given to him by the 1st appellant when they entered the premises. He was hiding with the 1st appellant when the 1st appellant stabbed Ashok on the chest. When Mohini ran to the scene, the 2nd appellant grabbed her and pulled her inside the toilet where she was stabbed by the 1st appellant. After the fatal stabbing, the 2nd appellant did not retract from his plan to rob and went upstairs to search for the safe. When he could not find the safe, he returned to the work section, listened to music and sang. He left the premises at a time when he generally finishes work on Saturdays to avoid raising suspicion.

[34] From all these evidence, the trial court was entitled to infer that serious harm was within the 2nd appellant's contemplation when he ventured to rob the victims. In my judgment, the guilty verdicts for double murder are supported by evidence and this ground of appeal must fail.

Withdrawal from joint enterprise
[35] I find it difficult to follow the submissions made by the 2nd appellant in respect to the issue of withdrawal from joint enterprise. The law on withdrawal from a joint enterprise is settled. Two conditions must be met before an accused can rely on the principle of withdrawal from a joint enterprise. Firstly, the withdrawal must be unequivocal, and secondly, it must be effectively communicated to other participants of a joint enterprise (Korovusere v State, unreported Criminal Appeal No. CAV0005 of 2011; 24 April 2013 at [28]). The 2nd appellant's own evidence was that after he saw Ashok lying on a pool of blood and Mohini confined in the toilet, he continued with the plan to steal. His defence was that he was only part of a plan to rob the victims and not to cause serious harm to them. In other words, if he was not part of a joint enterprise to cause serious harm to the victims, then the issue of withdrawal from that plan does not arise. This ground of appeal fails.

Result
[36] For the reasons given, I would dismiss both appeals.

The Orders of the Court are:

1. Leave to appeal granted to the 1st appellant.
2. Appeals dismissed.
   

Hon. Mr. Justice E. Basnayake
JUSTICE OF APPEAL

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 1st Appellant
2nd Appellant In Person
Office of the Director of Public Prosecutions for the Respondent