Baleinabodua v State [2016] FJCA 14; AAU0019.2012 (26 February 2016)

IN THE COURT OF APPEAL
[ON APPEAL FROM THE HIGH COURT]

CRIMINAL APPEAL NO. AAU 0019 OF 2012
(High Court Case No: HAC 0045 of 2010)

BETWEEN:

ANASA BALEINABODUA
Appellant

AND:

THE STATE
Respondent

Coram:

Calanchini, P Jayamanne, JA P. Fernando, JA

Counsel:

Mr. S. Waqainabete for the Appellant Mr. L. J. Burney for the Respondent

Date of Hearing: 8 February 2016

Date of Judgment: 26 February 2016

JUDGMENT

Calanchini P

I agree that the appeal should be dismissed.

Jayamanne JA

Background

1. The appellant and his father, Tevita Seru were charged in the High Court. Three assessors returned unanimous opinions of guilty against the appellant and the learned High Court Judge concurred with the same. The charges preferred against the appellant and the sentenced imposed are as follows:

Count 1

Statement of Offence

ATTEMPTED MURDER: Contrary to section 44 and 237 of the Crimes Decree No.44 of 2009

Particulars of Offence

ANASA BALEINABODUA on the 22nd day of July 2010 at Raiwaqa in the Central Division, attempted to cause death of Police Constable 3776 ALVIN HERMENT PRAKASH and at the time of such attempt, ANASA BALEINABODUA intended to cause the death of the said Police Constable 3736 ALVIN HERMENT PRAKASH

SENTENCE: Mandatory Life imprisonment with non- parole period of 10 years

Count 2

Statement of Offence

DAMAGING PROPERTY: Contrary to section 369(1) of the Crimes Decree No.44 of 2009

Particulars of Offence

ANASA BALEINABODUA on the 22nd of July 2010 at Raiwaqa in the Central Division, willfully damaged 4 louver blades valued at $12.00, the property of Fiji Police Force

SENTENCE: 1 month imprisonment

Count 6

Statement of offence

DRUNK and DISORDERLY; Contrary to section 4 of the Minor Offences Act (cap 18)

Particulars of offence

ANASA BALEINABODUA and TEVITA SERU on the 22nd day of July 2010 at Raiwaqa in the Central Division, were drunk and disorderly in a public place namely Grantham Road, Raiwaqa

SENTENCE: 1 month imprisonment

Grounds of Appeal

2. The Legal Aid Commission on behalf of the appellant filed an amended leave to appeal application against the convictions on count 1, 2 and 6. It contained three grounds of appeal.

First ground of appeal

3. The learned trial judge erred in law when he did not properly direct the assessors to the evidence under cross examination of Dr. Narayan when he agreed that the Appellant was a patient suffering from schizophrenia (severe mental sickness). Dr. Narayan also agreed that his latest report may have been wrong in terms of the appellant's ability to stand trial and his awareness of his conduct at the material time.

Second ground of appeal

4. The learned Trial Judge erred in law and in fact when he did not properly consider what Dr. Narayan said and agreed to under cross examination.

Third ground of Appeal

5. The Learned trial judge erred in law and in fact when he did not direct the Assessors on the Appellant's evidence which was given on oath that would show that he was suffering from schizophrenia even during the trial.

Ruling of the single judge

6. In his ruling dated 16th April 2014, the learned single judge of the Court of Appeal, in dismissing the appeal ruled that the learned trial judge's directions on mental impairment were correct in law and fact and found the grounds of appeal were not arguable and the appeal was frivolous.

7. The appellant sent a letter dated 7th may 2014 to the Supreme Court Registry stating that he wished to appeal against his conviction and sentence. Thereafter Legal Aid Commission on behalf of the appellant has filed an amended application for Special leave to appeal dated 25th March 2014 in the Supreme Court against conviction only. The same grounds of appeal urged before the single judge were canvassed in the said application.

Special Leave

8. After deliberation the Supreme Court delivered the judgment dated 25th August 2015 and set aside the decision of the single judge dated 16th April 2014. The Supreme Court granted special leave to appeal against conviction on the three grounds that had been urged before the single judge of the Court of Appeal. The Supreme Court remitted the appeal to the Court of Appeal for determination by a properly constituted bench.

9. At the outset of the appeal before us, after hearing the submissions we determined to grant leave on the three grounds preferred in the appeal. Thereafter counsel for the appellant made oral submissions. He informed that he would rely on the written submissions already filed in the case. Counsel for the State also made oral submissions and urged us to consider the written submissions filed by the State. He submitted that the evidence of only one psychiatrist was led and there was only one psychiatrist in Fiji at the time. Therefore he was of the opinion that the case should be sent for a re-trial to enable the defence to call for another psychiatrist.

Facts - Prosecution case

10. The appellant is the son of Tevita. The two reside together at the Southern Cross Building Compound, at Auto City Road, Raiwaqa. On 22nd July 2010 around 3 pm the father, Tevita brought a carton of beer and both of them consumed until 6 pm. Then they decided to go to the bread shop at Raiwaqa market. From there they came towards the Sigatoka Electrical shop. Both were holding a bottle of beer each, and laughing and yelling loudly. They were becoming a nuisance to the public. The commotion was heard by the police officers manning the Grantham Road Police Post.

11. At the Police Post PC Alvin Prakash was in the process of recording a statement from a victim in an assault case. He was disturbed by the conduct of the appellant and his father, Tevita. After seeing what was happening the police officer walked toward the two. The officer smelt liquor and arrested the father for drunk and disorderly behavior, and took him to the Police Post. The appellant fled with their two beer bottles. While the officer was questioning the father for about 20 minutes, the appellant, armed with a cane knife, came to the Post. He struck the police officer on the front side of the head with the cane knife. The officer was severely injured and blood was pouring from the head. Then the appellant smashed the Police Post window breaking four louvers. He went outside and challenged all police officers to a fight, while holding the knife.

12. Tevita also came outside and stood with the appellant. He did nothing to stop the appellant. Instead he threatened other police officers that they would get the same treatment if they tried to stop the appellant. Then both the appellant and Tevita fled from the police post. No permission was given to Tevita to leave the post. On their way home, Tevita yelled at the men drinking alcohol and he asked the appellant to chop one of the men named Lutu. The appellant did not chop though Tevita asked him to do so. The appellant and Tevita proceeded toward their home. Around 8 pm police officers from a different Unit arrested the appellant at his residence.

13. PC Prakash sustained an injury which completely cut the skull bone and penetrated. There was bleeding in the brain.

The Defence case

14. The defence, except for a few issues, basically admits the prosecution case. The appellant whilst giving evidence denied consuming alcohol or behaving in a disorderly manner. His position was that police officers stopped them and took them to the police post. They went home after they were released by the police. Further the appellant said that when he was coming out of the Post someone put the cane knife in to his hand and pushed him to the police post. The cane knife hit the police officer. He did not deny striking the head of the police officer with a cane knife. However the position of the defence was that the appellant was 'mentally impaired' at the time.

15. Tevita, the father of the appellant, gave evidence and denied consuming alcohol on the day. When the police stopped them for disorderly behavior the police officer pulled him to the Post. The appellant remained on the other side of the road and called him. He knew the appellant was angry. The father told police that the appellant had been to St.Giles as he was sick and mentally ill. Later the appellant came armed with a cane knife and chopped the police officer.

Law relating to Mental impairment

16. The three grounds of appeal are necessarily linked to the mental status of the appellant. The defence during the trial advanced that the appellant was subjected to mental impairment as he was suffering from schizophrenia on the date of the alleged offence. Therefore it is relevant to refer to the law with regard to 'mental impairment''. Section 28 of the Crimes Decree 2009 reads as follows:

"28. (1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that-

(a) The person did not know the nature and quality of the conduct; or

(b) The person did not know that the conduct was wrong(that is, the person could not reason with moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong);or

(c) The person was unable to control the conduct

(2) The question whether the person was suffering from a mental impairment is one of fact

(3) A person is presumed not to have been suffering from such mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.

(4) The prosecution can only rely on this section if the court gives leave.

(5) The court must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment". (Emphasis added)

Evidence- re Medical history

17. The major issue relating to the case was whether the appellant was mentally impaired at the time of the commission of the offence i.e. on 22nd July 2010 and during the trial in February 2012. Even the prosecution admitted that the appellant had been treated for mental sickness in the past but he was medically fit during the relevant period under consideration. The prosecution in support of its position heavily relied on the testimony of Dr. Narayan, the experienced Psychiatrist. On the other hand the defence relied on the testimonies of the appellant, his father and the same Dr. Narayan. The grounds of appeal are related to the judge's directions and non-directions to assessors with regard to mental impairment of the appellant. In the circumstance it is of paramount importance to carefully examine the evidence elicited relating to medical status, medical history of the appellant and the treatment given to him.

18. In 2004, the appellant was taken to the St. Giles Hospital by the father and he was examined by Doctor Pillai. There was a history of hallucination, being forgetful and marijuana use. He was assessed to have a mental and behavioural disorder due to cannabis. The appellant regularly visited and was treated at the out-patient clinic up to October 2004.

19. In November 2005, the appellant was brought again by his father as no medication had been given for the previous one and half years. The Doctor gave medication but did not continue treatment as they failed to turn up.

20. On 14th December 2008, as the appellant was unmanageable, he was brought by the father to the hospital. The father complained that the appellant would 'mumble' and smile to himself. He became aggressive and violent and assaulted his father. Doctor Narayan examined and treated the appellant. He observed that the appellant was uncooperative and demanding. The doctor diagnosed the appellant to be suffering from Schizophrenia and prescribed medication. He was released from the hospital.

21. Later there was significant improvement and when he was brought back, he was found to be stable. Appellant regularly visited the clinic, was mentally stable and manageable at home. At times he was reported to have behaved as if he had hallucination when smoking marijuana occasionally.

22. In February 2010 (6 months prior to the incident), the father was given 3 months' supply of medication and the father was responsible for the medication.

23. In May 2010 (2 months prior to the incident), father came back and reported that the appellant was well at home. He was given 3 months of supply of medication to be given to the appellant. The doctor concluded that the appellant was supervised and medication was given by the father.

24. On 22nd of July 2010, the appellant is alleged to have attacked the police officer with a cane knife and other related incidents took place. (The incident of attempted murder)

25. On 15th September 2010, upon a referral by the High Court the appellant was admitted to St. Giles hospital. Doctor Narayan again examined the appellant. The Doctor observed that 'the appellant was calm and cooperative and the speech was relevant. Tend to smile inappropriately at times. At times he claimed to hear voices of his grandfather. He is oriented to day, place and person.' Doctor noted the following history:-

"He was drinking with his father and went to Raiwaqa market and had drinks with an uncle. On the way while they were coming police stopped them for making noises and carrying bottles of beer. Father and he were making noise loudly and swearing. Police asked them to come to the police post. Father was taken to the police post. Police officers were pointing at father's head and laughing. Anasa Baleinabodua went home and brought a cane knife and hit a police officer on the head. He struck the window and broke louvers with the knife. He took father home and hid the knife at grandmother's place. When he went home police came and arrested" (Exhibit 2, page 115)

26. Upon the medical examination, the doctor expressed his opinion that the appellant was aware of his action at the time of the commission of the alleged offence and therefore he is responsible for his action. The doctor further said that 'at present he was fit to plead'. The doctor also noted that no pressure was applied and the appellant could remember things especially that he had to take medication and failure would lead to relapse.

27. On 18th February 2011, High Court again referred the appellant to the doctor and after examination of the appellant, the doctor issued another report dated 28/02/2011 (Exhibit 3- Pages 111 and 112 of the Record). The doctor expressed his opinion that the appellant was mentally well and stable and had continued taking his medication. As his mental condition had stabilized the doctor recommended to court that it was not necessary to admit him to the hospital. He could be managed as an out- patient. The doctor stressed to the court that the hospital needs to retain rooms for patients who are actually sick. The report reached the court on 28th February 2011.

28. On 16th February 2012(few days prior to the trial), the doctor issued a 3rd Report after examining the appellant on a court order. (Exhibit 4- pages 108-110 of the Record). In his history the appellant told the doctor that someone took hold of his hand and made him commit the crime. The doctor observed that during the current admission he was calm and cooperative. He denied hearing voices and did not express any delusion. His emotional responses were appropriate. The doctor opined that the appellant's position had been consistent throughout. But on this occasion he changed his position about the incident. When the appellant was confronted he became defensive and gave no reason. He became tense and agitated and said that he was going to repeat the answer every time this question was asked. Further the doctor expressed the view that he was mentally stable then.

29. The trial commenced on 22nd February 2012 and Dr. Narayan testified on 24th February 2012 (Pages 177-180). While giving evidence, he confirmed the positions described in his Reports as explained in previous paragraphs. All his reports were produced at the trial as Exhibits 2, 3 and 4. He further said that the appellant was aware of what he was doing at the time of the offence and that the appellant understands the court proceedings. In addition the doctor testified that people can fake symptoms and he had seen previously persons who faked symptoms.

30. Under cross examination, the doctor was questioned whether he knew the appellant continued with the doctor's drugs or ran out of supply of medication. It appears the defence advanced the position that the appellant relapsed at the time of the incident due to want of medicine or appellant not taking medicine. (Page 18).

The evidence of the appellant

31. The appellant giving evidence denied consuming alcohol on the day. He claimed that when he was coming with his father with two bottles, police took the father inside the police post. He did not say whether those bottles were empty or not. He claimed that someone put the knife into his hand and pushed his hand and then the knife hit the police officer. The evidence appears at page 198:

'They were asking me whether or not I knifed the policeman or not. I told them no. My hand was pushed. The police asked me questions and I answered. I told them someone put the knife in my hand, pushed my hand and the cane knife hit the policeman'.

'I gave the same report to St.Giles Hospital, as I gave the police. Someone put the cane knife in my hand and lifted my hand'

At page 199 the appellant stated:

'I took the beer bottles home to sell it. The knife was pushed into my hand at home.'

Analysis and consideration of Grounds of Appeal

32. In ground one, counsel for the appellant claimed that 'Doctor Narayan also agreed that his last report may have been wrong in terms of the Appellants ability to stand trial and his awareness of his conduct at the material time'. It appears that counsel was submitting that the doctor has retracted his material evidence given under evidence in chief. Therefore, it is pertinent to refer to evidence of the doctor under cross-examination. It is recorded in the narrative form and not in questions and answers form. For clarity, I shall reproduce the 2nd paragraph of page 180.

'Appellant is fit to take a plea. He understands the proceedings now. I am of the opinion that the appellant understands the proceeding. It may not be true. I wouldn't know if appellant didn't take his medication, one week before the alleged incident. I wouldn't know whether or not he relapses at the time at the incident. I wouldn't know whether or not appellant ran out of supply of medication.' (Emphasis added)

33. Since the question raised by the counsel does not appear in the Record we are unable to say that the doctor has retracted his testimony with regard to his last report. For example, counsel may have posed a question asking if the appellant had not taken medicine for one week prior to the incident or trial, whether the doctor would maintain the same position. Under the circumstances doctor may have said 'it may not be true.' If the defence had suggested that the appellant had no knowledge of what he was doing, the doctor may have said 'It may not be true.' Likewise the impugned line can be interpreted for the benefit of the appellant also. We are unable to speculate the meaning of the word 'It' and the context in which the word was used. It is unfair to discredit the whole testimony of the doctor without knowing the nature of the question. Therefore, one has to look into his evidence as a whole. His testimony is found from page 177 onwards and nowhere directly or indirectly does he say that the appellant was suffering from the mental impairment at the time of the incident or during the trial. It is not justice to decide the outcome of the trial on the basis of the word 'It'.

34. The trial judge, it seems, has given a direction with regard to the impugned sentence. It appears at paragraph 45 of the summing up (page 54 of the Record) which I shall reproduce:

'Doctor Narayan thoroughly cross-examined by Defence counsel, Mr. S. Waqainabete, but he at no time retracted his conclusion reached on 24th September 2010 in Prosecution Exhibit No 2. He may have admitted to some "mental impairment" during cross examination, but not of the variety required by that explained in paragraph 41 hereof.'

35. After giving a summary of the conduct of the appellant during the incident, the judge told the assessors in the same paragraph;

'.........In my view, looking at what the witness said about him during the offending,and his behavior in the court room, it can hardly be said that Doctor Narayan was wrong in his conclusion on 24th September 2010 in Prosecution Exhibit No.2. However, this is a matter for you'.

36. As discussed previously, the plain reading of the sentence does not give any indication as to the meaning of the word 'It'. Even if we were to assume 'it' was in relation to the Exhibit No. 2, then the judge has given direction as mentioned above. Therefore learned trial judge has adequately brought the matter to the attention of the assessors and there is no justifiable basis to critique that the trial judge has not given sufficient directions on this point.

37. Under re-examination, the doctor reiterated that the appellant understood the legal proceedings and was reported to be stable since he had given medication for 3 months to the father. I have carefully examined the reports issued by the doctor. Therefore I hold the words 'it may not be true' do not reflect any advantageous position to the appellant. Having regard to the totality of evidence and the reports and the reasons there in, it is amply clear that the doctor was categorical that the appellant was not suffering from any mental impairment during the relevant period of the offence. Previous lines prior to the impugned line show that the question was referable, if at all, to the mental condition while in court. As the appellant was examined few days prior to the trial (exhibit 4) there is no doubt that the appellant was in a fit condition to face the trial.

38. The assessors who were present during the trial may have known the exact context when the doctor gave the impugned answer and therefore no injustice has been caused to appellant. It must have been fresh in their mind as they considered the facts. They deliberated the issues within few days. In a summing up a judge is not expected to read out the entire proceedings to the assessors. He is required only to refer to summary of the salient evidence that has transpired in the case.

39. The appellant in his evidence never said that he avoided taking his medicine from the months of May to July in 2010. Even the father of the appellant in his testimony did not say that he ran out of stock or the appellant refused to take medication. Since the last dose of medication was issued in May 2010, under normal circumstance, it has to be presumed that the father gave medicine to the appellant (Page 199). There is no evidence to the contrary. It appears that throughout the father was very fond of the appellant and was very much keen in going to hospital and taking medicine. Such a duty bound father is very unlikely not to complain to Doctor or at least testify in court about the appellant not taking medication.

40. Tevita Seru, the father in his evidence stated that he and the appellant were proceeding along the road having picked up two bottles. He did not exactly say whether the bottles were full or empty. However, he testified that the police officer questioned as to why they were drunk and disorderly. Thereafter, he was taken to the police post. At that time the appellant stayed on the other side of the road. The appellant's father in his testimony stated as follows (page 200):

'He was calling me, for us to go home. Dad, let's go home. I heard the way he was calling. I knew there would be trouble. When I heard him, I knew he was angry.''

41. The appellant's father claimed that he told the police officers that the appellant was sick. Later he saw the appellant coming back and attacking the police officer with a cane knife. The appellant also struck the louvers of the Police Post. The appellant's father did not say whether the appellant was 'sick' in the morning or after the incident. Most importantly, the father never said that he was told by the appellant that someone gave him a knife and pushed his hand while holding the knife. Father being the most intimate person in his life, the appellant should have told his version to his father. On their way back home when the father asked the appellant to cut and wound another person that they met on the road, the appellant did not do that.

42. It is pertinent that the appellant did not harm anyone other than the one who arrested his father. Further, the appellant had the frame of mind to go back home when the father was arrested. According to police officers, they were able to arrest the appellant's father only because the appellant ran away. The appellant aimed at the head and not any other area. After the attack, the appellant and his father ran away together. In light of the totality of circumstances, it can be confidently and safely concluded that the appellant was aware of what he was doing. His mission was to rescue the father who came under police custody. He was not behaving as a person influenced by mental impairment. He cleverly planned out the course of action that he should take to rescue his father.

43. The appellant said in his evidence that someone gave him the knife and pushed his hand. According to him, the knife was given to him at home. The appellant in his caution interview said that after leaving beer bottles at home he took a cane knife. He took it to chop the police officer who arrested his father. He further stated at the interview that he knew the police officer was an Indian (page 161). At a subsequent stage of the interview, the appellant took up the position that his deceased mother told him to 'chop' the police officer as he had raped his sister at the back of the police station. He further stated that he knew that it was unlawful to 'chop' anyone (Page 163). At the beginning of the interview, the appellant said that he had never suffered any mental sickness that require him to be admitted to a hospital. Since the appellant took up a different position at the interview on this point, it is not reasonable to assume that he was mentally retarded. Several reasons can be attributed for the appellant taking up a different stance at the interview.

44. On the other hand, the appellant in his first two interviews given to Dr. Narayan, two and six months after the incident, admitted the willful chopping. However, two years later, in his third interview which he gave one week prior to the trial, he changed his position and told the doctor that someone placed the knife in his hand and pushed. When the doctor confronted the two contradictory positions, the appellant gave no explanation. This departure is a clear sign of deliberate falsehood. Therefore, it is safer to conclude that the appellant is not a trustworthy witness and the opinions of the assessors were just and fair.

45. According to Section 28 of Crime Decree 2009, the mental impairment has to be proved on a balance of probability. It can be done either by the prosecution or the defence. If the prosecution were to do so they have to obtain leave from the court. In the instant case, the prosecution has not sought the leave. Therefore, it is incumbent upon the defence to show on a balance of probability that the appellant did not know what he was doing at the time of the incident due to mental impairment. In the light of the reasons discussed in the previous paragraphs, it can be concluded that the mental impairment has not been established on a balance of probability.

46. At this stage, it is my duty to consider the contention of the counsel for the State. He contended that Dr. Narayan was the only witness summoned to give evidence with regard to purported mental impairment. The defence had to contend with the expert summoned by the prosecution. In other words, assertion of the counsel was that there was procedural unfairness in respect of the appellant. Counsel further said that at least there was a perception of unfairness as the Defence did not lead evidence of any other psychiatrist. As a principle, I endorse that not only the proceedings should be fair but also there must be a perception of fairness in the proceedings. Let me examine, now, in the instant case, whether the proceedings with regard to this issue is fair or not. The evidence of Dr. Narayan was never challenged on account of his professional expertise, integrity, manner of examination of the appellant, personal prejudices against appellant or validity of reports. He was not cross examined on any of those issues. On the other hand, the doctor had performed his duties with a diligent professionalism and maintained records in an orderly manner. As far as the High Court is concerned, the trial was not taken up suddenly. On several occasions prior to the trial, the appellant was referred to Dr. Narayan as he (the doctor) personally knew the history of the appellant from 2008. Even, the father of the appellant too never complained about the treatment and attitude of the doctor.

47. The defence had ample opportunity to summon any expert of their choice. As per Section 28 of the Crime Decree 2009, it is the responsibility of the defence to discharge the onus on a balance of probability. However, the defence made no application before the High Court, during or prior to the trial, to obtain services of another expert. This issue was never raised in the submissions. No such issue was raised as a ground of appeal before us. In the circumstances, it is not fair to entertain such argument. In an appeal, the appellate court should not go on a voyage of discovery of the grounds never addressed. On the above reasons, I am not in agreement with the proposition advanced by the state.

Judge's direction to assessors

48. The Judge's responsibility is to give adequate and proper directions to the assessors with regard to issues such as mental impairment, relevant laws, and evaluation of evidence and important items of evidence in the case. Both, the appellant and his father, have admitted in their caution interviews that they were drunk. The defence has not raised 'Intoxication' to mitigate the culpability. However, the learned trial judge has told the assessors that even if the appellant had not canvassed on intoxication, they could still consider such diminished responsibility if the evidence warranted. (Paragraph 21 of the summing up)

49. The learned judge explained clearly, that if the appellant was successful in his defence of mental impairment then he should not be found guilty for any offence (page 49 paragraph 29). The direction emphasized that the appellant was entitled to be acquitted. Had the assessors brought opinions of 'not guilty' the judge would have very likely acquitted the appellant. The assessors have no power to acquit but only to return a verdict of 'not guilty'. The learned judge has correctly explained the legal position. The learned trial judge explained the possible options available to the assessors. One such option was whether the appellant is guilty or not guilty for attempted murder (Page 56 paragraph 48). Therefore he has complied with the pronouncement enunciated in Praveen Ram v State; (CAV 0001/2011) quoting Lord Clayde in Von Starck v The Queen [2001]1WLR 1270 at 1275; where it was pronounced that:

'It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented at the trial, whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interest of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them.'

50. I am of the view that that every trial judge should follow the principle laid down in the above judgment. I wholeheartedly endorse and encourage every judge to respect the ideals expressed therein. As far as the instant case is concerned, duty of the appellate court is to scrutinize whether the trial judge has complied with the principle in his summing up to the assessors. I hold that the trial judge has sufficiently complied with the principle laid down in the said judgment. I am unable to find fault with the judge on this point.

51. I have examined whether the trial judge has educated the assessors about the legal definition of 'mental impairment'. I am satisfied that he has reasonably explained the elements of mental impairments as stipulated under section 28 of the Crime Decree 2009 (page 53 para 41 & 42).

52. The essence of condensed grounds of appeal is that the trial judge has not given directions regarding the evidence of Dr. Narayan. However, I find that the learned High Court judge specifically drew the attention of the assessors to the evidence of Dr. Narayan with regard to mental impairment, and stressed them to carefully study the reports of the doctor as well in order to arrive at a conclusion whether the appellant was mentally impaired at the time of the incident. He further pointed out that the determination of the credibility of the witness entirely belonged to the assessors. (Pages 54 and 55-paragraphs 43, 44, 45 and 46)

53. In addition, the learned trial Judge brought to the notice of the assessors that the doctor may have admitted 'some' form of impairment. He asked the assessors to consider whether the purported mental impairment reached a degree that made the appellant incapable of understanding the nature of the act. It is important to note that the trial judge has brought it to the attention of the assessors to consider the issue.

54. The learned trial judge has focused the attention of the assessors to the behaviour of the appellant after the incident. Those circumstances are very vital to arrive at a conclusion whether the appellant, in fact, understood what he was doing. In particular, the judge has explained as to how the appellant hid the knife and identified the police officers when they came to arrest him. The appellant realized that they were from a different police station. (page 56)

55. The appellant gave evidence on 28th of February 2012 and the learned High Court Judge summed up the assessors within five days. The evidence, in particular the testimony of the appellant, would have been very much fresh in the mind of the assessors. In the summing up, it is practically impossible to repeat every word uttered by the doctor and the appellant. It is sufficient to place the essence and the core of the defence case.

56. Careful scrutiny of the summing up shows that the trial judge has sufficiently placed before the assessors the defence case without any hindrance. The duty is on the defence to prove on a balance of probability of the issue of mental impairment. I am of the view that the assessors and the learned trial Judge were correct in finding the appellant guilty as charged.

57. Due to the reasons given, I hold that all the three grounds of appeal advanced by the appellant have not been established. There is no basis to interfere with the conviction. Therefore I would dismiss the appeal and affirm the conviction and the sentence imposed.

P. Fernando JA

58. I have read the judgment of Jayamanne JA and I agree with it.

The Orders of the Court are:

1. Appeal dismissed.

2. Conviction and Sentence imposed affirmed.

Hon. Mr. Justice W.Calanchini
PRESIDENT, FIJI COURT OF APPEAL

Hon. Mr. Justice S. Jayamanne
JUSTICE OF APPEAL

Hon. Mr. Justice P. Fernando
JUSTICE OF APPEAL