Khan v State [2015] FJCA 166; AAU69.2013 (1 December 2015)

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

CRIMINAL APPEAL NO. AAU69 of 2013
CRIMINAL APPEAL NO. AAU79 of 2013
[High Court Case No. HAC73/13 Ltk]

BETWEEN:

KARIM RAHMAT ALI KHAN
Appellant

AND :

THE STATE
Respondent

Coram : Goundar JA
Counsel : Mr. I. Khan for the Appellant
Ms P. Madanavosa for the Respondent

Date of Hearing : 26 October 2015
Date of Ruling : 1 December 2015

RULING

[1] There are two applications before this Court. The first is an application for leave to appeal against conviction by the appellant. The second is an application by the State for leave to appeal against an order for costs made against the prosecution during the proceedings in the High Court.

[2] The appellant was charged with one count of manslaughter contrary to section 207(1)(2)(c) of the Crimes Decree 2009. The appellant was a juvenile. He was found guilty after trial and sentenced to a good behavior bond for 7 years.

[3] The grounds of appeal against conviction are:

1. THAT the Learned Honourable Justice Madigan erred in law and in fact in deciding that the Juvenile Appellant's case be heard at the High Court contrary to the Juveniles Act whereby the Juvenile Appellant ought to have been tried in the Juveniles Court.

2. THAT the Learned Trial Judge erred in law and in fact in not holding/finding beyond reasonable doubt that the Juvenile Appellant was criminally responsible for an act or omission and further at the time of doing the act or omission the Juvenile Appellant had capacity to know that he ought not to do the act or make the omission by virtue of section 29(2) of the Juveniles Act Cap. 56.

3. THAT the Learned Trial Judge erred in law and in fact in not holding/finding that the Juvenile Appellant was criminally responsible for an offence if the Juvenile Appellant knew that his conduct was wrong by virtue of Section 27(1) of the Crimes Procedure Decree.

4. THAT the Learned Trial Judge erred in law and in fact in not analyzing all the facts before him before he made a decision that the Juvenile Appellant was guilty as charged on the charge of manslaughter. Such error of the Learned Trial Judge in law by failing to make an independent assessment of the evidence, before affirming a verdict which was unsafe, unsatisfactory and unsupported by evidence, giving rise to a grave miscarriage of justice.

5. THAT the Learned Trial Judge's failure to evaluate the evidence prior to returning a verdict of guilty as charged, and the failure of the Learned Trial Judge to independently assess the evidence before confirming the said verdict, has given rise to a grave and substantial miscarriage of justice.

6. THAT the Learned Trial Judge erred in law and in fact in not directing himself and/or the Assessors to refer to any Summing Up the possible defence on evidence and as such by his failure there was a substantial miscarriage of justice.

7. THAT the Learned Trial Judge erred in law and in fact in not ordering a mistrial when after the three Assessors had delivered their verdict of guilty and before the Learned Trial Judge delivered his Judgment, it was brought to the attention of the Learned Trial Judge by the Juvenile Appellant's Counsel that it was just revealed by the Juvenile Appellant's Counsel's staff that the Juvenile Appellant's Counsel was acting against Assessors No. 3 in several matters in Lautoka Magistrate's Court.

8. THAT the Learned Trial Judge erred in law and in fact in not directing/and/or adequately directing the Assessors and himself on the previous inconsistent statements made by Prosecution witnesses. The Learned Trial Judge ought to have directed the Assessors and himself that when a witness is shown to have made previous statements inconsistent with the evidence given by the witness at the trial, he ought to have directed the Assessors that the evidence given at the trial should be regarded as unreliable. The failure to do so caused substantial miscarriage of justice.

[4] Counsel for the State has filed detailed response to all the above grounds of appeal. At this stage, all that the appellant has to demonstrate is that his appeal is arguable. Counsel for the State submits that ground 7 may be arguable while the remaining grounds are not arguable.

[5] Since there is at least one ground of appeal that is conceded by the State to be an arguable point, leave on all grounds is granted. It is for the appellant to decide whether he wants to proceed with all his grounds after having considered the State's written response to his grounds of appeal.

[6] I now turn to the State's appeal against the order for costs. The grounds of appeal are:

"10. That being dissatisfied with the reasons of the High Court of Fiji at Lautoka per Madigan J. for the order for costs of $2,000.00, the Director of Public Prosecutions hereby gives you notice that he desires to appeal against that decision on the following grounds:

1. That the learned Judge erred in law in failing to formulate, read out and hand down the reasons for the 'wasted costs order of $2,000.00' simultaneous to his oral order on 3 June 2013.
   
2. That the learned Judge erred in law and in fact in failing to set out the costs in the cause that justified the 'wasted costs order of $2,000.00' imposed on 3 June 2013.
   

100. That the learned Judge erred in law and in fact failing to take into account the sworn testimonies Filimoni Lacanivalu and Dennis Narayan, and in taking into account untested evidence by Iqbal Khan from the Bar Table."
     

[7] The costs order was an interlocutory order. I have some reservation whether the State has a right of appeal against an interlocutory order for costs. This is a question of law only and I have decided to allow the question to be answered by the Full Court.

Result

[8] Leave granted to both the appellant and the State.

......................................
Hon. Justice Daniel Goundar
JUSTICE OF APPEAL

Solicitors:
Messrs. Iqbal Khan & Associates for the Appellant
Office of the Director of Public Prosecutions for State