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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU0015OF 2012
[High Court Criminal Case No. HAC 35 of 2005L)
BETWEEN : ASHWIN CHAND
Appellant
AND : THE STATE
Respondent
Coram : Basnayake,JA
Gamalath, JA
Prematilaka, JA
Counsel : Mr.M. Yunus for the Appellant
Ms. S. Puamau for the Respondent
Date of Hearing : 05 May 2016
Date of Judgment : 27 May 2016
JUDGMENT
Basnayake, JA
[1] I have had the benefit of reading in draft the judgment of my noble brother Hon. Mr. Justice Prematilaka. I am in agreement with
his finding that the caution statement was made voluntarily. The appellant has raised eight grounds of appeal. Hon. Mr. Justice Prematilaka
has rejected five. They are marked as d. e. f. g. and h. I am in agreement with his finding with regard to the rejection. However,
the learned Justice has admitted grounds marked a, b and c. I regret to say that I am in disagreement with the reasoning and findings
with regard to the said grounds. I am of the view that the appellant has failed in all the grounds and the appeal should be dismissed.
I am of the view that the conviction and the sentence should be affirmed.
Evidence
[2] On 13 October 2005 Mrs Premila Wati (the deceased) was killed in her residence between 7.30 pm and midnight. According to forensic evidence she had sustained six injuries on her body. Injury No. 1 is a deep cut injury on the neck. It had severed the neck as a result of which the wind pipe, nerves and carotid artery were cut. There were four deep stab injuries on the chest (injury No's 2-5). The deceased had also sustained a bruise on the back of her chest (injury No.6). All the injuries would have been caused by a sharp cutting instrument such as a knife. The cause of death was due to asphyxia and exsanguinations following injuries to the neck and the chest. The deceased would have succumbed to the injuries instantaneously.
[3] The deceased was alone at the time of the incident as her husband and two children had left the house around 7.30 pm to visit one Farook (Riyazud Dean) a relative. When they returned around midnight, they had found that the door was locked from inside and that there was no response from the deceased. Then one of the children had loosened the lock of the rear side door by inserting his hand through a window. When they opened the house, they had found the deceased lying dead in a pool of blood in her bed-room.
[4] At the crime scene the police had found a leather waist belt around the mouth and the neck of the victim. A knife stained with blood was also found closer to the deceased. The blade of the knife was dented. Another knife was recovered from the front portion of the house. There was no evidence of forceful entry to the house. None of the windows or doors had been damaged to gain entrance. The handbag of the victim was found in her bed-room. Forensic experts could not find any finger-prints suitable for further investigation.
[5] On 15 October 2005, the police arrested the appellant from his house. The police recorded a caution statement, which the trial judge declared to have been made voluntarily. In his statement, the appellant admitted to his presence at the crime scene but denied his involvement in the murder. He implicated one Praveen, an uncle, for the murder.
[6] Praveen, when arrested denied his involvement. He was called as a witness for the prosecution. He testified at the trial.
Circumstantial Evidence
[7] The case is based on circumstantial evidence. Therefore it was required from the prosecution to establish that the cumulative effect of the items was only compatible with the guilt of the accused. Equally it had to be shown that when taken together that the one and only inference that could be drawn is incompatible with the innocence of the accused. However, even if one or two items are not strong enough, the balance items must be still capable of drawing the inference against the accused. Circumstantial evidence is like a strand of a rope and even if one strand is broken, the remainder may be sufficient to hold the weight. Even if one item seems to be innocuous, the totality may point towards the guilt. It is the responsibility of the prosecution to prove that no other person than the appellant could have committed the crime.
[8] Circumstantial evidence as presented by the prosecution are:-
The analysis
[9] The learned trial judge had decided that the cautioned statement was admissible. However, such statement can be used only if the truthfulness of the same is established. Leaving the statement aside, the recovery of the belt belonging to the appellant proved his presence. That shows the truthfulness of at least part of the statement.
[10] According to the cautioned statement, while the appellant was walking on the road, Praveen came in a van around 7 pm on the day of the incident. At the request of Praveen, the appellant got into the van. Praveen took the appellant in the van to his house. When they reached the house it was around 8.45 pm. They stayed there for 15 minutes. Then the appellant took his belt, pompom and knife from the van and walked along the road with Praveen toward the house of the deceased. The appellant claimed that on the way he gave the knife, belt and pompom to Praveen. Later, as requested by Praveen, the appellant put it in the pocket of his shorts.
[11] When they reached the house they saw the deceased cleaning the kitchen. The appellant called the deceased referring to her as “aunty." The deceased turned on the sitting room lights. The deceased opened the door after recognising the appellant. The appellant entered the house. Praveen followed him. They sat on the settee. The appellant inquired from the deceased where her husband was. She said that he had gone to Farook Dean's house at Mulomulo. After a conversation the appellant claimed that he went to the kitchen to drink a glass of water. Then he heard a sound from the sitting room. When he came out from the kitchen, he saw Praveen strangling the neck of the deceased with the belt. Then Praveen told the appellant if he wanted money to go and get it. Then the appellant went to the bed-room and opened a drawer and found a grey hand bag. He took $ 50 from the bag and came back. Then he saw Praveen, while strangling the neck of the deceased, with the other hand cutting her neck with a small knife.
[12] The appellant claimed that it was not the same knife that they took there. Thereafter both the appellant and Praveen walked back. Praveen was following the appellant. While walking the appellant states that he threw the knife and ran away to his house around 10.30 pm. Two days later, a police officer while recording the statement from the appellant, showed the belt that was recovered from the crime scene. The appellant identified it as belonging to him. He also recognized the handbag of the deceased. The appellant did not identify the knives.
[13] While making the caution interview the police took the appellant to the crime scene. The appellant had started crying stating that 'I did not mean to kill aunty.'
[14] The most vital aspect of the prosecution case was to have called Praveen as a witness.
He categorically stated that he was with one Uday Kumar and Sunil Kumar. They went to Lautoka in the late evening and retuned around midnight. They went to meet one Vijay Kumar, brother of Uday to return a loan taken. When the money was handed over to Vijay kumar he handed over a receipt of acknowledgment. The document was signed and dated by Sunil Kumar also. The receipt was produced to substantiate the claim of Praveen. The evidence of Praveen was not seriously challenged. Only a suggestion was made that he was responsible for the killing. Hence the evidence of Praveen remains unchallenged.
[15] Sunil Kumar was also summoned to give evidence and he corroborated the evidence of Praveen. He testified that from 7 pm till 11.30 pm they were at the house of Vijay Kumar in Lautoka. His evidence was not challenged as the appellant did not cross examine the witness and his evidence remains unshaken.
[16] Ms Ashvan Kumar, wife of Udaya Kumar also gave evidence and said that Praveen, her husband (Udaya) and Sunil Kumar left for Lautoka around 6 pm and retuned only around mid-night in a van. She also gave the reason for Praveen and others to visit Lautoka. At the time of the trial her husband was not among the living and Vijay Kumar had migrated to New Zealand. Even this witness was not cross examined and her evidence also remains unchallenged.
[17] The analysis of the evidence of Praveen, Sunil Kumar and Ms Ashran Kumari show that Praveen was never around the crime scene. The defence was not able to challenge the evidence of these witnesses in this regard. The moment the evidence of Praveen is believed it can be safely concluded that the prosecution has circumstantially established its case. That means that it was the appellant who went alone to the deceased's house and remained at the crime scene during the murder. The prosecution has successfully excluded any hypothesis that is compatible with the innocence of the appellant. It can be concluded that no one else other than the appellant remained at the crime scene. Therefore, the inescapable inference is that it was the appellant who committed the murder of the deceased.
[18] When applying the test of probability, no one can reasonably assume that the appellant would allow a 3rd person to kill the deceased who is related him. Similarly, Praveen would have thought twice in committing the murder as he would have left an eye witness in the form of the appellant. In all probability the 3rd person would have thought that the appellant would provide evidence against him as the victim was related to the appellant.
[19] The appellant failed to prevent the supposed attack on the deceased and even after the attack the appellant could have easily reported the matter to the police as his involvement was only robbery of $50.00.
[20] The appellant, in his cautioned statement, took up the position that the deceased was hacked to death by Praveen at the sitting room. The explanation of the appellant was that since he was in the bed room, he was not involved in the attack. However, the police and the relatives recovered the body of the deceased from the bed-room. Therefore, it appears that the appellant has not divulged the full truth in his cautioned statement.
[21] The above analysis shows that the prosecution has presented a very strong and convincing case against the appellant. Any reasonable panel of assessors would have necessarily arrived at the same conclusion of guilt. No prejudice has, what-so-ever, been caused to the appellant. Even the trial judge having directed himself has concluded that the appellant was guilty of murder. The learned trial judge was fair and reasonable in arriving at such conclusion having regard to the strong items of evidence.
Grounds of appeal
[22] Ground (a) deals with the Trial judge's failure to give direction with regard to truthfulness and voluntariness. But careful scrutiny of his summing up shows that, he has sufficiently dealt with the issue in paragraphs 29, 36-42 and 39 of the summing up. In the judgment at paragraph 6-8 and 21-23 also he has sufficiently dealt with the issue. Even the single judge in his judgment at paragraph 4 also refers to that the caution statement as having been made voluntarily. The point is if the police had yielded intimidation or duress, they could have easily recorded a confession from the appellant.
[23] The judge in no uncertain terms has told the assessors that it was up to the prosecution to prove the case beyond reasonable doubt. He has told them further that it was the responsibility of the assessors to evaluate the evidence of witnesses in the case. It has to be borne in mind that several police officers have given evidence at the main trial. They testified that the caution statement was recorded voluntarily. The appellant alleged that he was assaulted by the police. When the judge gave the direction to the effect that it was up to the assessors to decide the evidence, that means that they can decide whether the witnesses are telling the truth or otherwise.
[24] He has given a summary of evidence of witnesses from paragraph 23-41 of the summing up. In particular, he has referred to the evidence of police officers relating to voluntariness from paragraph 36 to 42. The learned trial judge directly or indirectly has not restricted the discretion of the assessors with regard to the credibility, weight of the evidence or any matter including voluntariness. He has invited the assessors to evaluate the evidence of witnesses on any issue. The relevant paragraphs of the summing up are as follows:
v. paragraph 45: "You may use your common sense in evaluating the evidence and deciding the facts of the case."
vi. paragraph 47: “I humbly request you to consider all the evidence before the Court and come to your own conclusion. If you are satisfied beyond reasonable doubt of the accused's guilt and you are sure of it, you must find the accused guilty as charged. If you are not satisfied beyond reasonable doubt of the accused's guilt, and you are not sure of it you must find the accused not guilty as charged” (emphasis added).
[25] Ground (b) deals with the issue of allowing prejudicial evidence to be led with regard to character evidence. It was alleged that this happened when the cautioned statement was produced in court. However careful examination shows that relevant parts of the caution statement were sufficiently removed before the document was produced in court.
[26] Ground (c) deals with the issue of not giving directions with regard to circumstantial evidence. The learned trial judge has clearly told the assessors at paragraphs 16 to 19 that there were no eye witnesses but the case is based on circumstantial evidence and what approach they ought to take. In particular paragraph 19 is reproduced as follows:
[27] He stressed as to how such evidence should be approached. A criticism has been made as to the trial judge's equating circumstantial evidence to a puzzle. The Judge's direction was that when a piece is missing the entire puzzle is distorted. Circumstantial evidence is similar to strands of a rope and therefore even if one or a few strands are missing, still the rest would be sufficient enough to give the strength to the rope. The wrong analogy has certainly benefitted the appellant to the detriment of the prosecution. The assessors may have thought that if one piece of evidence was not proved the entire case would collapse. Despite that direction they brought in a verdict of guilty. It means that the evidence was so synchronising and compatible.
[28] I have demonstrated the strength of the totality of the circumstantial evidence. The appellant has not shown how the purported non directions prejudiced him. In the circumstances I hold that the appellant has not established ground c) as well. The ground c) is devoid of merit.
[29] The learned trial judge in his judgment has directed himself and considered the entire evidence. What is important is that independent of the opinion of the assessors, the learned trial judge has considered the evidence afresh. Therefore, he was convinced that the prosecution has proved the case beyond reasonable doubt. If he had any doubt with regard to voluntariness, truthfulness, weight of circumstantial evidence and sufficiency he would not have concurred with the opinion of the assessors. The relevant paragraphs are as follows:
[29] In light of the above reasons I hold that the appellant’s grounds a), b), and c) are devoid of merit and therefore reject the same.
[30] According to Section 23(1) of the Court of Appeal Act, the appeal should be dismissed when there is no substantial miscarriage of justice which has occurred. Due to the reasons given above I hold that there was no substantial miscarriage of justice. Even if proper directions had been given, any assessor or judge would have come to the same conclusion that the accused was guilty of the offence. Therefore I dismiss the appeal and affirm the conviction.
The Sentence
[31] The appellant raised a ground of appeal on the sentence on the premise that the pre-trial custody period was not taken into account when calculating the sentence. The learned trial judge should have taken the period of incarceration he had already served, when deciding on the minimum term to be served before pardon may be considered. The State has conceded this point.
[32] I affirm the sentence of life imprisonment but set a minimum term of 14 years to be served before pardon may be considered. I allow the appeal on the sentence.
........................................
Hon. Mr. Justice E. Basnayake
JUSTICE OF APPEAL
Gamalath, JA
[33] Having delved into the two judgments of the most Honourable two brother Judges, Hon.
Justice Basnayake and Hon. Justice Prematilaka, I am in agreement with the decision of Hon. Justice Prematilaka to order a new trial in this appeal.
Prematilaka, JA
[34] This appeal arises from the conviction of the Appellant on one count of murder. The Information dated 14 November 2005alleges that the Appellant had murdered Premila Wati on 13 October 2005 and thereby committed the offence of murder contrary to sections 199 read with section 200 of the Penal Code [Cap.17). After trial, he had been convicted of murder and sentenced to life imprisonment with a non-parole period of 22 years.
Preliminary observations
[35] By a letter dated 26 March 2012 the Appellant had sought leave to appeal against the conviction (6grounds) and sentence (1ground). By another letter dated 22 April 2012 the Appellant had urged 08 additional grounds for leave to appeal against the conviction. The Appellant once again, belatedly though, hadtendered another amended application for leave to appeal dated 24.11.2012 urging 19 grounds against the conviction (17 grounds) and sentence (02 grounds). On 24 March 2014 the Legal Aid Commission on behalf of the Appellant had filed an ‘Amended Petition of Appeal’ setting out 07 grounds of appeal against the conviction and a single ground of appeal against the sentence. Hon. Justice Goundar had considered the said ‘Amended Petition of Appeal’ as an application for leave to appeal and granted leave in respect of grounds 3, 4, 5 and 6 against the conviction and also in respect of the sole ground against the sentence on 16 April 2014 in terms of section 21(1) of the Court of Appeal Act.
[36] The Legal Aid Commission had on 08 April 2016 filed an ‘Amended Notice to Appeal’ (or Renewal Application) purportedly under section 37(1) of the Court of Appeal Rules against the conviction on 08 grounds from (a) to (h) and one ground on sentence and urged this Court to exercise power vested by section 35(3) of the Court of Appeal Act. It appears that the grounds 2, 4 and 7 where leave was refused have been abandoned. Ground 1 so refused seems to have been reframed as grounds ‘a’. Ground “b” has included grounds 5 & 6. Grounds ‘c’,‘d’, ‘f’, ‘g’ and ‘h’ are new grounds. Ground ‘e’ is similar to ground 3. The sole ground against the sentence has been reframed.
[37] Though, as pointed out earlier, some of the grounds urged in the ‘Amended Notice to Appeal’ are completely new grounds not considered by Justice Goundar, this Court at the hearing considered them along with the grounds of appeal allowed at the leave stage (vide NileshGounder&Umesh Chand v The State Criminal Appeal No. AAU 20 of 2008 decided on 20 December 2013; [2013] FJCA 137) and decided to hear the Appellant all grounds urged in the ‘Amended Notice to Appeal’ dated 08 April 2016. The Respondent expressed no serious objection to that course of action and had addressed all grounds in its written submission.
Ground (a)
The Learned High Court Judge erred in law and in fact when he failed to direct the assessors that the truthfulness and voluntarinessof confessions was a matter for them to decide in the light of all evidence in the matter.
[38] The complaint of the Appellant relates to the caution interview given by him. The court record provided to this Court shows that the caution interview recorded in Hindi had been marked as P15 (English translation as P15A) and read in evidence at the trial by D/SGT Davendra Vijay who had witnessed it in the absence of D/CPL Sushil Deo who had conducted it and had migrated to New Zealand.
[39] The marked caution interview was not part of the court record and the counsel for the Respondent handed over a copy in the course of the hearing when the Court expressed its wish to examine it carefully. There was no agreement on the part of the counsel for the Appellant that it was the one read out to the assessors and I will deal with that aspect later in the judgment. However, it must be placed on record that except unmarked copies of the caution interview in Hindi and English none of the other exhibits marked at the trial were part of the court record and the Court was unable to refer to any of them at the hearing. This, to say the least, is unsatisfactory. Ultimately, this Court had to get down the original case record from the Court of Appeal registry in order to examine the exhibits at the stage of preparation of the judgment. All the marked documents were in the case record. Legal Aid Commission should have exercised more diligence in the preparation of the court record.
[40] The Learned High Court Judge had summed up the Assessors on the following terms on the caution interview. The Judge had not addressed the assessors on the caution interview anywhere else in the summing up.
“19th and last witness called by the Prosecution was Police Officer Davendra Vijay. He was the witnessing officer at the Caution Interview. This witness told Court that he had assisted in the investigation by visiting the scene of crime. He had seen the knife at the scene of crime and identified the broken knife in this court. The interview was conducted by Police Officer Sushil Deo and it was in Hindustani language. This witness submitted to court that the accused made the statement voluntarily. No one assaulted, threatened or forced him to make a statement. The witness heard the accused saying "Hum Jan KeNehe Mara Kaki Ki" meaning I did not mean to kill.
When the accused suggested that he was assaulted by this witness and Sushil the interviewing officer, witness completely denied the suggestions.”
[41] The Appellant argues that the Learned Judge had failed to give any direction to the assessors regarding the confession contained in the caution interview, in particular as to how to approach it and that the weight to be attached to the disputed confession was a matter for them to decide along with all other evidence. According to the Appellant, the High Court Judge ought to have warned the Assessors that they could use the statement in the caution interview against the Appellant only if they were satisfied that it was made by him and it was truthful and accurate. Since the ground of appeal includes ‘voluntariness’ I shall deal with that as well.
[42] The Supreme Court in Khan v State Petition for Special Leave to Appeal No.CAV009/2013 decided on 17 April 2014; [2014] FJSC 6 approved the following direction as ‘sound and proper’ given to the assessors by the High Court Judge in a case where the appellanthad challenged the caution interview on the basis that he had been assaulted by the police, thus effectively repudiating its voluntariness.
“What weight you put on these confessions is a matter for you. If you accept that he gave these statements to the police, that he did so without pressure and that he was telling the police about events as he saw them then you may think that they present a complete picture of how the Accused (deceased) died on the 4th of July.
"Which version of the facts you accept is a matter for you. However if you accept the contents of the statements as being reliable, then you should consider the contents with all the other evidence, the forensic evidence of the scene, the photographs, the evidence of where the taxi was seen all of the 4th of July in deciding what evidence is acceptable to you."(emphasis mine)
[43] The Supreme Court concluded in Khan v State(supra)
“This was a sound and proper direction to the assessors recommending that they consider the contents of the statements along
with all of the evidence in the case. For if they accepted the interview admission as having been given voluntarily, not elicited
by pressure or assaults, and that the account of events given by the only witness to the murder were to be relied upon, the prosecution
case was complete. The judge asked the assessors to go on and consider all of the other evidence and to decide whether they accepted
any of that. This ground has no merit and could not meet the special leave criteria”(emphasis mine)
[44] In Burns v The Queen[1][1975] 132 CLR 258 a Five Judge Bench of the High Court of Australia held
“It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative
value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in
whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true they
cannot treat it as a proof of guilt. However, a confessional statement may be only one piece of the evidence against the accused
and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction
necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances
of the case. "There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence
or which prescribes any measure of the comment which it is his duty to make upon it." (Ross v.The King [1975 V. R. 2411]). In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative
value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake
or because the accused when making it was ill in body or disturbed in mind. In a case such as the present, where the accused person
alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession
was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they
should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it
was not in issue that the statement was made, but it was claimed that it was untrue.”
[45] In Kean v State Criminal Appeal No. AAU 95 of 2008 decided on 13 November 2013; [2013] FJCA 117 Calanchini J. said:
“Whether the confession was made voluntarily was a question of law to be determined by the trial Judge usually at the commencement
of the trial in a procedure known as a voir dire. In the voir dire the onus was on the Respondent to establish beyond reasonable
doubt that the confession was voluntary. The learned trial Judge, after considering the evidence given by the Respondent's witnesses
and the evidence of the Appellant, concluded that the Appellant's caution inte was obtaiobtained voluntarily and not by unfairness
or oppression”
[46] Again, tin, the Supreme Court in Kean v Stat State Criminal Appeal No. CAV0015/2010 decided on 12 August 2011; [2011] FJSC 11 held
“We accept that the learned trial judge erred in law by directing the assessors on his decision to admit the confession in evidence, which he had made in the absence of the assessors in a voir dire. However, we agree with the conclusion reached by the Court of Appeal that the error has not caused miscarriage of justice. In his summing up, the learned trial judge quite correctly left the truth of the confession to the assessors after determining admissibility. The truth and weight of the confession was a matter for the assessors to consider after taking into account all the evidence.”(emphasis mine)
Dilemma of voluntariness
[47] It is well settled that the matter of admissibility of a confessional statement is a matter for the judge to decide upon a voir dire inquiry, having being satisfied beyond reasonable doubt of its voluntariness. He does not consider the truth or adequacy of the confession. It is equally settled that once a confession is ruled as being voluntary, whether it is true and sufficient for the conviction (i.e. the weight) are matters essentially for the assessors to decide. However, there seems to be some degree of lack of clarity in Fiji as to whether once the confession is led in evidence the assessors should also be satisfied that it is voluntary or whether they are bound by the judge’s previous ruling and how the trial judge should direct the assessors when a confession has been admitted in evidence.
[48] In Frederick Benjamin Atkins (Appellant) And The Queen (Respondent) Chief Justice Sir David Simmons in Criminal Appeal No. 21 of 2000 said on behalf of the Court of Appeal of Barbados
“It is settled, however, that when a confessional statement is left to the jury as a question of fact, their function is to assess the weight and probative value of the confession. In that assessment the jury should take into consideration all the circumstances in which it was made, including allegations of force, if those allegations were thought to be true – ChanWei Keung v R [1967]2 WLR 552 and Prasad v R [1981] 1 AER 319. Voluntariness is a test of admissibility but it is also a matter to be considered by the jury in arriving at the truth.”
[49] In Basto v R[2] [1954] HCA 78; [1954] 91 CLR 628 at 640 and 641 Dixson CJ explained
“The jury is not concerned with the admissibility of the evidence; that is for the judge, whose ruling is conclusive upon the jury and who for the purpose of making it must decide both the facts and the law for himself independently of the jury. Once the evidence is admitted the only question for the jury to consider with reference to the evidence so admitted is its probative value or effect. For that purpose it must sometimes be necessary to go over before the jury the same testimony and material as the judge has heard or considered on a voir di60;for the purpose oose of deciding the admissibility of the accused’s confessional statements as voluntarily made. The jury’s consideration of the probative value of statements attributed to the prisoner must, of course, be independent of any views the judge has formed or expressed in deciding that the statements were voluntary. Moreover the question what probative value should be allowed to the statements made by the prisoner is not the same as the question whether they are voluntary statements nor at all dependent upon the answer to the latter question. A confessional statement may be voluntary and yet to act upon it might be quite unsafe; it may have no probative value. Or such a statement may be involuntary and yet carry with it the greatest assurance of its reliability or truth. That a statement may not be voluntary and yet according to circumstances may be safely acted upon as representing the truth is apparent if the case is considered of a promise of advantage being held out by a person in authority. A statement induced by such a promise is involuntary within the doctrine of the common law but it is plain enough that the inducement is not of such a kind as often will be really likely to result in a prisoner’s making an untrue confessional statement.”
“The admissibility of evidence is not for the jury to decide, be it dependent on fact or law and voluntariness is only a test of admissibility.”
[50] Difference of opinion on this matter was prevalent in UK as well. In Chan Wei Keung v The Queen[3] [1967]2 WLR 552 the Privy Council held that the voluntariness of a confession is a test of admissibility and that it is a matter for the judge to decide on the voir dire, but failing in the matter of the voir dire, the defence was entitled to canvass again the question of voluntariness and to call again the evidence relating to that issue but such evidence goes to the weight that the jury would attach to the confession and it is not correct that they must disregard it completely, if not satisfied with its voluntariness. In Wendo v The Queen [1963] A.J.L.R. 77 (Aust.) at p.82 it was held that there might be cases in which the jury would conclude that a statement was involuntary according to the rule relating to inducement, but nonetheless it was manifestly true.
[51] In Prasad v The Queen [1981] 1 A. E. R 319 which was an appeal from Fiji, the Privy Council held again that there was no rule of law that the question whether a confession was voluntary was to be decided by a jury; however, in assessing the probative value of a confession, a jury should take into consideration all the circumstances in which it was made, including allegations of force, if those allegations were thought to be true.
[52] Chan Wei Keung v The Queen and Prasad v The Queen represent what is known in the United States as the Orthodox procedure. R. v Murray [1951] 1 Q. B. 391 where the Court of Criminal Appeal favoured the view that the defence should be allowed to cross-examine the police as to the voluntariness, and this would affect the weight and value which are matters for the jury, is also an example of this.
[53] However, in some cases such as R. v Cleary [1963] 48 Cr. A. R. 116 and R. v Priestly [1966] 50 Cr. A. R. 183 what is also known as the New York procedure in U.S. where the judge did not resolve the question of voluntariness, but admitted the confession and later directed the jury to consider whether it was voluntary, and if so, whether it was true, had been adopted. But this approach has since not been favoured.
[54] Nevertheless, what is known as the Massachusetts procedure in the U.S. also had been adopted in a significant number of cases where the judge decided first whether the confession was voluntary, and if he admitted it, he further directed the jury on the question of voluntariness and asked them to consider that question themselves. R. v Bass [1953] 1 Q.B. 680, R. v. Sutherland and Johnstone [1959] Crim. L. Rev. 440, R. v Parkinson [1964] Crim. L. Rev. 398, R.v Fudge [1964] 108 S. J. 900, R. v Ward, The Times 18/11/1964 and Sparks v The Queen [1964] A. C. 964 are examples of this approach.
[55] However, Chan Wei Keung v The Queen (supra) was considered by Hoffmann[4]as a happy return to orthodoxy fromthe Massachusetts procedure. Therefore the dominant view prevailing among jurists is that the Orthodox procedure whereby the judge decides the question of voluntariness and the jury decides the question of the weight to be attached to it, for which purpose they are entitled to consider also the question of voluntariness, should be preferred.
[56] I think R. v Murray (supra), Chan Wei Keung v The Queen(supra), Prasad v The Queen (supra) represent the correct approach similar to the Orthodox procedurein U.S. that should be adopted in Fiji. I do not favour placing the issue of voluntariness per se before the assessors as in the Massachusetts procedure. The House of Lords (both the majority and the minority) in Regina v. Mushtaq[5] (Appellant) [2005] UKHL 25 one again expressed the following views on this matter.
“The law is clear that where a judge has ruled on a voir dire that a confessi admissible ible the jury is fully entitled to consider all the circumstances surrounding the making of the confession to decide whether they should place any weight on it, and it is the duty e trial judge to make this this plain to them”
“ This division of functions between the judge and the jury, admissibility a matter for the judge, weight a matter for the jury, is not only the law in the United Kingdom, it is the law in Australia (Basto v The Queen [1954] HCA 78; (1954) 91 CLR 628), in a (Rda (R v McAloon [1959] OR 44nd in the UniteUnited States of America (Lego v Toomey (1972) 40477).” (per (per Lord Hutton)
“Therefore, wheredefenobjects to the alhe alleged confession being given in evideevidence, witnesses are examined on a voir dire, in the absence of the jury, to establish the circumstances. The appropriate prosecution witnesses are examined and cross-examined on the matter and the defendant himself may give evidence and be cross-examined on it. The judge then decides whether to admit or exclude the confession. If the confession is excluded, the jury hears nothing about it. Where the judge decides that the confession is to be given in evidence, if the defendant's counsel wishes, the circumstances in which it was obtained will again be explored in evidence before the jury so that they can decide what weight or value to attach to it: R v Murray [1951] 391, 393 per Lord Gord Goddard CJ; Cei Keung v The Queen #160;[1967] 160, 172D - E p- E per Lord Hodson. There are sometimes greater or lesser differ betwhe eve as led and considered by the judge inge in the the voir dire and the evidence given in t in the trial which the jury have to consider.”
“To that extent, at least, the defendant gets a second bite at the cherry.”
“These aspects of the system as it presently operates are not in dispute.”
“In my view, therefore, the logic of section 76(2) of PACE (Police and Criminal Evidence Act 1984) really requires that the jury should be directed that, if they consider that the confession was, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it.”
“I recognise, equally, that the approach in Chan Wei Keung v The Queen has not hitherto given rise to difficulties in practice. Nevertheless, for the reasons which I have given, it appears to me that the approach which I have indicated is required in a system which contains section 76(2) of PACE.”
(per Lord Rodger of Earlsferry)
In the absence of any legislation in Fiji similar to section 76(2) of PACE, I am of the view that the assessors need not necessarily be directed that “if they consider that the confession was, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it.” But the rest of the pronouncements aforesaid of Lord Hutton and Lord Rodger of Earlsferry in Regina v. Mushtaq could be adopted.
Caution Interview – voluntariness
[57] The Appellant had given notice for a ‘trial within a trial’ and accordingly a voir dire inquiry had been held and at the end of it the High Court Judge had ruled the caution interview to have been made voluntarily and allowed the prosecution to produce it at the trial proper because he had found ‘that the police had not forced the accused to make the statement because there is no direct admission of the offence by the accused’. The High Court Judge seems to have concluded that if the police had used force it would have resulted in a confession and as there is no direct admission of guilt in the caution statement the Appellant could be taken to have made it voluntarily. The High Court Judge had accordingly not come to a direct finding whether the police had actually used force on the Appellant or not.
[58] However, I propose to analyse the evidence available to the High Court Judge to see whether his conclusion that the caution interview was voluntary is justified on the material led at the voir dire inquiry because the High Court Judge had not drawn the issue of voluntariness of the caution interview vis-à-vis its weight to the attention of assessors in the summing up and therefore I need to satisfy myself whether despite that omission I could apply the proviso to section 23 (1) of the Court of Appeal Act on the basis that it had not resulted in a substantial miscarriage of justice. I would later deal with the non-direction on the making and truthfulness or reliability of the caution interview.
Appellant’s position
[59] The position of the Appellant had been that he had been assaulted by D/CPL Sushil and D/SGT Davendra Vijay and they were responsible for his injuries which the latter had denied. The Appellant had elaborated in his evidence that D/C Sushil had assaulted him on 15 (October 2005) and D/SGT Davendra Vijay had stepped on his finger to force him to sign which he never suggested to Davendra Vijay. He had also said that he was not allowed to read the caution interview but the police officer had said that it was read over to him. The question no. 174 in P15A shows that it had been read over to him in Hindi. However, the Appellant had not taken up an unequivocal position that he had not said at all what had been recorded in P15A. It other words, he had not said that P15A is a total fabrication. Neither had he said unequivocally that he was forced to say what had been recorded due to oppression inflicted on him by the police. He seems to vacillate between these two positions.
[60] Though the Appellant had complained to Prem Singh, a Justice of Peace who visited him on 17October at Nadi Police Station, of him having been beaten up by the police, Prem Singh had not seen any visible injuries on him. Neither had the Appellant given him details of any assault. Nor had the Appellant been in pain. D/SGT Meli Doughty on 17 Octoberhad seen the Appellant taking out a paper clip from the bundle of papers with him and pricking his nails with it as if he was poking in the nails before it was taken away by the police. No recording of this incident had been made. Neither had the paper clip been preserved for future reference. The Appellant, of course, had challenged this evidence. Several other police officers who had come into contact with the Appellant or handled him at different times from his arrest on 15 October till he was taken to Dr.Tuidraki on 17 October also had said that they had not observed injuries on him.
[61] Medical evidence too does not seem to support the Appellant a great deal. The Appellant had been examined by a female medical officer named Dr. Lisepa Tabaka on 16 October and she had observed ‘only old scar at the left forehead no other injury noted on the body’ (vide P12). This evidence does not support any assault on 15October. Dr. Aisea Tuidraki who had examined the Appellant on 17October had recorded a history given by the Appellant that he had been assaulted by some police officers specifically on 15 October 2005 by punching and stepping on his fingers with boots on. The Appellant had been calm and not in pain. The medical officer had also recorded the injuries on the medical report (P13) as“a small laceration under the upper lip, appears slight haematoma under the nail of the right middle finger and index finger and thumb.” He had said that haematoma could have been caused by a mild blunt force or possibly by a paper clip which corroborates the evidence of one police officer. The doctor had not seen any injuries on the skin on the top of the nail which cast doubts of the fingers having been stepped on with boots resulting inhaematoma under the nail.
[62] The appellant, just before the voir dire inquiry commenced, had told the High Court that the police officers had punched him in the stomach, chest and mouth with fists and poked needles in finger nails and by such assault forced him to admit.Poking needles in finger nails and punching on the face seem to have been abandoned at the voir dire inquiry. Instead the allegation of stepping on the fingers with boots had been taken to the fore at the said inquiry. Although the Appellant says that he was forced to admit, presumably the guilt or commission of the offence the caution interview does not contain such adirect admission of guilt. Even if there had been an assault it had not yielded the desired result.
[63] In the light of above evidence I am of the view that the High Court Judge’s finding that the caution statement was voluntary could be justified.
Non-directions
[64] I now propose to go back to the issue whether the Learned Judge had failed to give any direction to the assessors regarding the alleged confession contained in the caution interview, in particular as to how to approach it and that the weight to be attached to the disputed confession was a matter for them to decide along with all other evidence and also whether the High Court Judge ought to have warned the Assessors that they could use the statement in the caution interview against the Appellant only if they were satisfied that it was made by him and it was truthful and accurate.
Analysis of the caution interview
[65] As already pointed out there is no unqualified admission of guilt in the caution interview. In fact, it is more an exculpatory statement than an admission of the commission of the offence with which the Appellant had been charged. However the nature of the Appellant’s caution interview is such that it could be easily misinterpreted as evidence of his guilt in that he had firmly placed himself at the scene of the crime and implicated himself in the robbery of money whilst the murderous act was being committed allegedly by Praveen Kumar. His caution statement in brief is to the effect that he went to the house of the deceased with Praveen Kumar taking his belt, pompom and a knife in the night on 13 October 2005. At the house after a brief chat with the deceased he saw Praveen Kumar strangling the deceased with the belt belonging to him while cutting her neck with a small knife. The Appellant had searched the handbag of the deceased and collected $50.00. Then, they had left the house.
[66] In the absence any guidelines and directions as required by law from the High Court Judge as to how to evaluate the caution statement, it appears that there is a real danger that the assessors, being laymen without trained legal minds, having listened to and readthe entirety of the contents in the caution statement (P15A) may well have formed the opinion that the Appellant had narrated not what he saw but what he actually did. Because it is also in evidence that Praveen Kumar, Sunil Kumar and Uday Kumar (husband of Ashran Kumari) had been at one Vijay Kumar’s residence at Lautoka from evening to almost midnight on the day of the murder completely distancing Praveen Kumar from the scene of the offence. In addition according to Praveen Kumar he had not even seen the Appellant on the whole day.
[67] However, the Appellant obviously cannot claim that the caution interview was obtained by oppression, force or unfairness on the one hand and on the other hand claim that he never made the caution interview. He cannot approbate and reprobate (quod approbo non reprobo). It is apparent that the objection of the Appellant to the caution interview is founded on the premise that it was not made voluntarily rather than on a claim that he never made it. There was no unequivocal position taken up by the Appellant even when he gave evidence at the voir dire inquirythat he never made the caution statement in the sense that he had been forced to sign a document fabricated by the police. His statement to the High Court prior to the voir dire inquiry that he was subjected to force and oppression and forced to admit suggest that he had come out with what he had stated therein due to force and oppression. This is the main line of his objection to the caution interview at the voir dire inquiry. Even at the trial proper in his cross-examination of witness Davendra Vijay the Appellant never suggested that P15A was a fabrication and he only placed his signature under oppression and unfairness. He still alleged at the trial that the witness along withD/CPL Sushil caused the injuries on P13 implying that he did not make the caution statement voluntarily but made it underoppression and unfairness. He chose to remain silent at the trial and did not express his position on the caution interview.Thus the Appellant was in fact challenging the voluntariness of the caution interview rather than the making of the caution interview per se.
[68] Though technically the High Court Judge was required to direct the assessors to first consider whether they were satisfied beyond reasonable doubt that the Appellant had given the caution interview, I do not think that in the circumstances set out above there was an inescapable obligation on the part of the High Court Judge to warn the assessors to be first satisfied that the Appellant had in fact spoken the words attributed to him in the caution interview, in the sense that they must be satisfied beyond reasonable doubt that the Appellant had in fact given the caution interview to the police. The non-direction on the making of the caution statement, in my view, had not caused substantial prejudice to the Appellant’s defence.
[69] However, I do believe that the Learned High Court Judge still had to direct the assessors that they should considerwhat weightand probative value they would attach to it and in that respect and for that purpose they could also consider the question of its voluntariness. The Learned High Court Judge should have further directed the assessors to determine whether they considered the caution statement to be true and reliablein whole or in part and consider its contents with all the other evidence.However, the jury only needs to be satisfied that the statement is true in relation to the parts in which the accused implicates himself or herself in the commission of the offence. The jury does not need to be satisfied that the statement is true in all particulars (Burns v R (1975) 132 CLR 258).
[70] In my view these directions are required not only in a case where an accused clearly and directly implicates himself in the commission of the crime but also for example in a case where from his caution statement he is seen to have aided and abetted or conspired to commit an offence with another, firmly puts himself at the crime scene, claims to play the role of an accomplice in the overall incident but only withdraws or distances himself from the commission of the main act of a more serious offence than contemplated at the expense of another whom he implicates as the doer of the main act. In other words looking at the caution interview along with all other evidence if a reasonable member of the lay society may feel that the Appellant may well have been the real culprit the same directions required in respect of a fully fledged or partial confessional statement must be given to the assessors to prevent a miscarriage of justice and to ensure a fair trial.
[71] The assessors should not be left to themselves to evaluate evidence of a confession without assistance of the proper direction by the Judge. In any event, such directions as are required by law are essential when the evidence is prone to misuse, or if the jury may fail to distinguish or apply the prerequisites for using a confession (vide Burns v R (1975) 132 CLR 258; R v Perera [1986] 1 Qd R 211; Cotic v R [2000] WASCA 414; (2000) 118 A Crim R 393; R v D’Orta-Ekenaike [1998] 2 VR 140).
[72] However, in some cases, a confession or a statement mimicking a confession or having the pretence of a confession capable of misconstruction by the assessors, in the caution interview may be substantially the only evidence of one or more elements of the offence which the accused is charged with. In such cases, it may be essential for the judge to clearly identify for the assessors the importance of such a statement in the caution interview. This can be accomplished in several different ways, including:
(i) When directing the assessors about the element, direct them that such caution statementis the only evidence (or substantially the only evidence) in support of that element and without that evidence, the element cannot be proved beyond reasonable doubt;
(ii) Directing the assessors that they would need to be satisfied of such caution statementbeyond reasonable doubt before acting on it;
(iii) Commenting to the assessors that such caution statementis the only evidence, or the most significant evidence, in proof of the element and they can only be satisfied of the element beyond reasonable doubt if they are satisfied of the caution statement;
(iv) Refer to such caution statementand direct the assessors that it must be satisfied that the said statement proves the relevant element beyond reasonable doubt.
[73] If the caution interview does not speak to any of the elements of the offence the accused is charged with but contains material which taken together with other evidence has a highly prejudicial effect or could create an inevitable impression in the minds of the assessors of the guilt of the accused, still the High Court Judge should bring to their notice of the absence of evidence therein on any elements of the offence and in fact should appraise them of the items of hard evidence available against him in the case, leaving the choice of believing and acting upon them to the assessors.
[74] In the instant case I find that as complained by the Appellant, the Learned High Court Judge has completely failed to address the assessors of the applicable legal principles in relying upon the caution interview though he had summarised at paragraph 16 of the summing up items of evidence the prosecution had placed before them. However, mere breakdown of pieces of evidence or reiteration them will not help the assessors in a case of this nature. The summing up is completely devoid of any directions on how the assessors should evaluate the caution interview.
[75] As pointed out earlier in the light of the evidence led I am of the view that the High Court Judge’s finding that, the caution statement was voluntary, could be justified. However, his omission to leave the question of weight to be attached to the caution interview and voluntariness in relation to that, truthfulness or reliability to the assessors in the summing up cannot be justified in the circumstances of this case. I am not convinced that the assessors properly directed would have necessarily found the Appellant guilty by a unanimous verdict given the following facts. I shall now proceed to analyse the evidence available against the Appellant.
[76] The only evidence against the Appellant in connection with the murder is some part of the caution statement, the evidence of his ex-wife that the belt used in strangulation of the deceased belongs to him(which the Appellant admits in the caution interview)and another piece of evidence of Davendra Vijay that at the reconstruction scene he heard the Appellant uttering in Hindi "Hum Jan KeNehe Mara Kaki Ki" meaning “I did not mean to kill aunty” (which will be dealt with later in the judgment).Therefore his presence at the crime scene is the most crucial piece of evidence to the conviction which comes only from the caution statement. Then there is the evidence of Praveen Kumar, Sunil Kumar and Ashran Kumari coupled with the receipt marked P7 to take Praveen, the alleged assailant out of the crime scene.
[77] In the caution statement there is no confession by the Appellant that he killed the deceased. On the contrary his position is that it was Praveen, whom he accompanied, who took the lead role, strangled and cut the neck of the deceased. He does not speak to any conspiracy between the two of them to kill the deceased either.He does not speak to aiding and abetting the act of strangulation or cutting of the neck. Nor does he admit to having been involved in any post-murder act. He does not admit that the knife recovered from the scene most probably used to cut the neck of the deceased is the one carried by him to the house. At the scene of the crime (in the course of recording the caution interview) he had started to cry because he was feeling sad.He had confronted Praveen again in the course of the caution interview and Praveen had denied having killed the deceased but had not wanted to talk to the Appellant anymore.
[78] The Appellant admits in the caution interview that it is his belt that was used by Praveen to strangle the deceased. He admits to taking $50.00 from the deceased’s bag in the course of the same transaction which amounts to robbery or an aggravated form of robbery for which he had not been charged. This aspect seems to have been overlooked at the stage of filing the Information by the DPP.
[79] The High Court Judge had not apprised the assessors of these items of evidence as the only evidence they could consider in relation to the elements of the offence of murder.
[80] Similarly, the Learned High Court Judge’s omission to direct the assessors to consider the weight (i.e. sufficiency for conviction), truthfulness or reliability of the caution interview regarding the parts where the Appellant had placed himself at the scene of murder even if they had not doubted the voluntariness of it, may have prompted the assessors to simply findthe Appellant to be the person who killed the deceased because he ‘volunteered’ to place himself at the crime scene. This is a serious non direction on the part of the trial judge.
[81] On the other hand if the caution statement had been rejected the only evidence left for the prosecution to rely on would be the evidence of his ex-wife that the belt used in strangulation of the deceased belongs to the Appellant and the Appellant had uttered at the crime scene in Hindi "Hum Jan KeNehe Mara Kaki Ki" meaning “I did not mean to kill aunty”along with the evidence of Praveen Kumar, Sunil Kumar and Ashran Kumari coupled with the receipt marked P7 to say that Praveen Kumar was elsewhere in the fatal night.
[82] The assessors should have been asked by the High Court Judge to consider whether they thought that the remaining evidence was enough to bring home the charge of murder against the Appellant if they were to conclude that the caution statement taken at its best did not prove the elements of murder against the Appellant.
[83] The evidence of Davendra Vijay that at the reconstruction scene he heard the Appellant uttering in Hindi "Hum Jan KeNehe Mara Kaki Ki" meaning “I did not mean to kill aunty” had been included as part of paragraph 41 of the summing up as if it had been uttered in the course of making the caution statement at the police station. However P15A reveals that the caution interview had been suspended at 10.57 hours and the Appellant had been taken to the crime scene and at or about 11.17 hours at the scene he had started crying. When questioned, the Appellant had said that he was feeling sad. But there is no record of the Appellant having uttered the words attributed to him, in the caution interview at the scene. In any event these words had not been uttered in answer to a question by the interviewing police officer but alleged to have been uttered by the Appellant and overheard by another police officer. The Appellant had challenged this evidence of Davendra Vijay at the trial as a lie.
[84] However, I think that the evidence of what Davendra Vijay claims to have heard could have been properly led at the trial under the rule of res gestae. In Nadim v. State Criminal Appeal No. AAU 0080 OF 2011 decided on 02 October 2015; [2015] FJCA 130 the Court of Appeal said
“The admissibility and relevance of res gestae may be gathered from a large body of legal literature and judicial decisions and it could be summarised and condensed into three different situations.
(i) The facts which though not in issue are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.
(ii) Facts which are (a) occasion (b) cause or (c) effect, immediate or otherwise, of relevant facts or facts in issue and facts which constitute the state of things under which they happened and facts which afford an opportunity for their occurrence or transaction, are relevant.
(iii) (a) Facts showing or constituting motive for any fact in issue or relevant fact, (b) facts showing or constituting preparation for any fact in issue or relevant fact and (c) facts showing or constituting previous or subsequent conduct influencing or being influenced by any fact in issue or relevant fact, are relevant.” (emphasis mine)
[85] However, in the circumstances of this case the High Court Judge should have specifically addressed the assessors of the evidence of Davendra Vijay that at the reconstruction scene that he heard the Appellant uttering in Hindi translated as ‘I did not mean to killaunty’ and directed them to consider whether they could believe that evidence and if so what inference could be drawn from such evidence against the Appellant. There is no direction to that effect at all. Thus, prejudice to the Appellantmay have outweighed theevidentiary or probative value of this evidence.
[86] In the circumstances I am not inclined to apply the proviso to section 23 (1) of the Court of Appeal Act to the total non direction on the caution statement on the weight and related voluntariness, truthfulness and reliability except the making of it by the Appellant. I think this complete absence of the direction as required by law has prejudiced the right to a fair trial of the Appellant substantially. No one could surmise what the assessors, properly guided by the High Court Judge, could have decided regarding the culpability of the Appellant on the evidence available. I therefore conclude that the only way this error could be remedied is by ordering a retrial. Appeal against conviction is allowed on this ground.
Ground (b)
The Learned High Court Judge erred in law and in fact by allowing prejudicial information of uncharged act contained in the caution interview of the Appellant to be tendered as evidence and failed to direct the Assessors to disregard those prejudicial evidence whilst forming their opinion on the guilt of the Appellant.
[87] The alleged questions and answers are as follows.
“Q 46 - What happened after that?
A - He told me that police is looking for me.
Q47 - Then what happened?
A - The I said that the security told everything or what.
Q48 - What does that mean?
A - This means about the stealing we did at RK & RK after assaulting the
security,
Q49 - Then what did you say?
A - Then Pravin told me that police arrested him and he has told the police
that he took my job.
Q50 - What happened after that?
A - I told Praven why he involved me when he was together with me.
Q52 - Then what happened?
A - Praveen told me to hide.
Q66 - Why did you ask him for money?
Q74 - Why did put the belt, pompom and knife in Pravins Van?
Q135 - How can you say that it was the same belt?
[88] The Respondent seems to admit in its written submissions that, the above questions and answers contain prejudicial material of uncharged acts but argues that they were blotted out. I examined the marked copy of P15A in the case record and found that except Q46 and the answer, other disputed questions and answers had been blotted out with a white liquid but I could still read most of the words beneath. In the original caution statement in Hindi (P15) the removal of the questionable questions and answers had been done successfully. The Learned High Court Judge at the end of the summing up had requested the assessors to take with them the documents marked before court and their notes. Therefore obviously the assessors would have taken P15 and P15A also with them. They may, in all probability would have been able to read those so called blotted out parts as well.
[89] The sentences complained of by the Appellant contain not previous convicted offences but a previous unsuccessful act of robbery attempted (or actually committed) by the Appellant and Praveen Kumar and crucially referred to the same belt belonging to the Appellant being taken to the robbery that had been used to strangle the deceased in the present case as well. The chances are that the assessors may have concluded that the Appellant was a habitual criminal and was in the habit of using his belt as an instrument in committing crimes including the murder he was being charged with. This possibility cannot be ruled out at all.
[90] The High Court of Australia in Crofts v R (1996) 70 AJLR 917 at p. 927 said:
“No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial discretion designed to overcome its apprehended impact. As the court below acknowledge, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.”
[91] In State v Patrick Nayacalagilagi Criminal Case Con. HAC 165 of 2007 decided on 17 February 2009; [2009] FJHC 48 the High Court said
“If the jury inadvertently hears inadmissible evidence, any prejudice could be avoided or dispelled by a clear warning to disregard the evidence and enable a fair trial. However, if the circumstances are such that the prejudice to the accused could not be dispelled by a warning to the jury, a mistrial is declared as an appropriate remedy to ensure a fair trial for the accused.
[92] The principles in Crofts were adopted in State v Alifereti & Ors Cr Misc. Case No. HAM0082 of 2008 and in State v Patrick Nayacalagilagi (supra) where Justice Goundar continued
“I am concerned about the deliberate conduct of the prosecution to lead evidence of uncharged acts without giving any notice to the defence to object to the evidence, and knowing that the evidence is highly prejudicial to the Accused persons. Section 28 (1) (f) of the Constitution gives an accused the right to challenge evidence. In my view, leading evidence that the Accused persons assaulted other people in a similar manner and that they counseled unnatural offences between males, without any notice to the defence to challenge the evidence in a voir dire, are so prejudicial that it could not be dispelled by a warning to the assessors to disregard the evidence. In these circumstances the possibility of a miscarriage of justice occurring cannot be ruled out. The courts have a duty to prevent a miscarriage of justice from occurring by ensuring that the trial of an accused person regardless of his or her social and economic status in the society is fair
[93] Unfortunately, the Learned High Court Judge’s attention had not been drawn to that aspect at all and I find no direction to the assessors on how they should deal with the prejudicial evidence complained ofthough I am of the view that a proper direction on his part could have dispelled the prejudicial value of those questions and answers. In the circumstances I am of the view that substantial miscarriage of justice has ensued and in the light of the fact that the most crucial evidence for the prosecution is the caution interview makes it even harder to escape from the above conclusion. I think a retrial is the only remedy to redress this irreversible lapse. Appeal against conviction is allowed on this ground.
Ground (c)
The Learned Trial Judge erred in law and in fact when he did not properly direct the Assessors in respect of circumstantial evidence.
[94] The paragraph no. 19 in the summing up challenged is as follows. It has to be noted that this is the only direction on circumstantial evidence in the summing up.
“This is a case where you don't find an eye witness but the prosecution depends on circumstantial evidence. It is like a jigsaw puzzle. A single piece will not give you a whole picture but if you put all together you may see a picture. Prosecution submitted that she had arranged all the pieces and invite you to see a full picture. But the accused says that he is not in the picture. It is up to you to arrange all the evidence before you and come to a conclusion whether there is evidence against the accused for murder or not.”
[95] Court of Appeal in Lole Vulaca and two others v. The State Criminal Appeal No.AAU0038/08 decided on 29August 2011 [2011 FJCA39] found no error in the summing up of the trial judge where he had said inter alia
“Remember that in considering circumstantial evidence you must be satisfied beyond reasonable doubt that the only reasonable inference available to you is the guilt of the Accused before you can find them guilty. If you find that there are other reasonable inferences you can draw which are consistent with the Accused’s innocence or if you have a reasonable doubt about it, then you should find each not guilty.”
[96] Lole Vulaca’s case has not considered the decision in McGreevy v. D.P.P [1972] 57 Cr.App.R. 424, P.C. where it was held that where the prosecution case is based on circumstantial evidence, there is no rule which requires the judge as a matter of law, to give a further direction that the jury must not convict unless they are sure that the facts proved are not only consistent with guilt of the accused, but also such as to be inconsistent with any other reasonable conclusion.
[97] The Supreme Court decision in Senijieli Boila v The State (Criminal Appeal No. CAV005 of 2006S decided on 25February 2008; [2008] FJSC 35) is also relevant in this regard. The Court observed on the use of circumstantial evidence that
“What is required is a clear direction that the tribunal of fact must be satisfied of the guilt of the accused beyond reasonable doubt (McGreevy v director of Public Prosecutions [1973] 1 WLR 276, applied Kalisoqo v R Criminal Appeal No. 52 of 1984). See also R. Hart [1986] 2 NZLR 408. The adequacy of a particular direction will necessarily depend on the circumstances of the case.”(emphasis mine)
[98] Therefore in Nadim v. State(supra)the Court of Appeal held
“The direction approved in Lole Vulaca’s case is not a sine qua nonin every circumstantial evidence case. In my view, the direction approved in Lole Vulaca’s case should be read subject to the rulings in McGreevy and Senijieli Boila’s case. Evaluated in that light, I cannot find fault with the impugned direction of the High Court Judge in the present case.” The said approved direction was as follows
“It is not sufficient that the proved circumstances are merely consistent with the Accused persons having committed the crime. To find him guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the Accused persons committed the crime.”
“I have explained to you what circumstantial evidence is. It is up to you to draw the proper inferences from the evidence placed before you.”
[99] In the present case the Learned High Court Judge had not informed the jury of items of evidence he regarded as circumstantial evidence. The most significant piece of evidence was in the form of caution interviewincluding admitting his presence at the crime scene and the High Court Judge seems to have regarded that as a piece of circumstantial evidence along with the only other evidence of his belt being used for strangulation of the deceased. I shall now see whether other parts of the summing up could erase this deficiency. The appellant’s alleged utterances at the crime scene and exclusion of Praveen Kumar from the crime scene are the other items of circumstantial evidence.
[100] The High Court Judge had directed the assessors on the standard and burden of proof as follows in paragraphs 4 and 5 in his summing up.
“In criminal cases the standard of proof, I must direct you as a matter of law, that the prosecution bears the burden of proof in the case. The burden remains throughout the trial and it never shifts. There is no obligation upon the accused person to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty. This is a golden rule.”
“The standard proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of guilt of the accused person before you express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion that he is guilty, if you are satisfied of that you are sure that he committed the offence alleged.”
[101] The Learned Judge had also told the assessors at paragraphs 16 to 18 of the summing up as follows.
“In this case the prosecution did not provide any witness who had seen the incident. Even the accused did not admit that he committed the offence. I may simply summarize the evidence briefly. The belt of the accused was found on the neck of the deceased. The accused also admits that he was there at the scene of crime but he denies the involvement in murder, further he says it was done by one Pravin Kumar. State Counsel called Pravin Kumar and led the evidence to the fact that he was at Lautoka with two others at the relevant time. Others also confirmed that he was with them. In this case deceased and the accused are not strangers. All of them are known and related to each other.”
“Briefly saying there are evidence to say that the accused was at the scene of crime and his waist belt had been used as a tool apart from the knife. But there is no direct evidence that the accused committed the act of murder.”
“The accused totally denies the incident but when cross-examining the witness Pravin Kumar he said that he was there and the act was done by Pravin Kumar.”
[102] The Respondent says in the written submissions that the reality is that the Appellant made no confessions in the Record of Interview tendered in Court. However, the Respondent has not informed this Court what other evidence is available to bring home the charge of murder against the Appellant. Considering also the fact that there is no direction whatsoever as to how the assessors should evaluate the caution interview as already dealt with under the first ground of appeal I am constrained to think that the direction on how the assessors could come to a finding of guilt on what the Judge thought was circumstantial evidence was totally inadequate. To me, on the evidence available the general direction on standard and burden of proof separately and circumstantial evidence separately could not have been helpful to the assessors. The example of the jigsaw puzzle to describe is also not an accurate description of circumstantial evidence. The following example in R v Exall (below) would have been accurate and helpful to the assessors.
[103] Pollock CB in Rv Exall [1866] EngR 22; (1866) 4 F & F 922 at 929 compared circumstantial evidence to a rope comprised of several cords. He went on to say:
"One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence - there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion: but the whole taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of."
[104] Therefore, in all the circumstances of this case, I am of the view that the Learned High court Judge’s direction on circumstantial evidence and evidence in general is not adequate but a direction on the lines similar to Valuca’s should have been given. This, I think has caused prejudice resulting in substantial miscarriage of justice to the Appellant which could be rectified only by a retrial. Appeal against conviction is allowed on this ground.
Ground (d)
The Learned Trial Judge erred in law when he failed to properly direct the Assessors on the definition of ‘malice afterthought’.
[105] The Appellant’s complaint is that the High court Judge has failed to elaborate the termmalice afterthought while agreeing with his description of the term in paragraphs 12 & 14. They are as follows
“The 3rd element that must be proved for the crime of murder is that the person who caused the death of another by an unlawful act did so with "malice aforethought". This is a legal term which describes a particular intention or state of mind.”
“English Lexicon says malice aforethought means "with intention of committing a crime.(especially murder or grievous harm)”
“It is an intention to cause death or grievous harm to the victim or knowledge that death or grievous harm would probably be caused.”
[106] The Appellant has taken exception to the reference only to the English Lexicon without examples. In R v Moloney [1984] UKHL 4; [1985] 1 All ER 1025 the House of Lords held
“ the golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent ( i.e., intention), the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding.”
[107] I think that there is adequate direction on the term malice afterthought and examples may have been desirable as the assessors are laymen but not essential on the facts of this case where the injuries founds on the body of the deceased would reveal nothing short of malice afterthought whoever the perpetrator was. No substantial miscarriage of justice has occasioned. I reject this ground of appeal.
Ground (e)
The Learned Trial Judge erred in law and in fact when he failed to direct the Assessors on how to deal with expert opinion evidence.
[108] The appellant has quoted only a part of paragraph 30 of the summing up in support of his contention. It is as follows in full.
“Dr. R. Ponnu Swamy Goundar was called as the 8th witness. He is a qualified and experienced Pathologist. He has more than 40 years experience in giving evidence in court and done more than 3000 Post Mortem Examinations. He has not done this post mortem. He was brought by the Prosecution to produce and explain the report of Dr.Pandurang Badami who conducted the post mortem. Dr Goundar said that Dr.Badami is no more with the Fiji Health Authority and he had left Fiji.
Dr.Goundar produced the post mortem report and explain that the deceased was Premila Wati and she had died on 13/10/2005. The deceased had 5 injuries. One injury on the neck virtually severing the neck. It was a deep cut injury from one ear to other ear.
2nd, 3rd, 4th and 5th injuries were on the mid of the chest. Those are incised wounds caused by stabbing. He submitted to court that these are not self inflicted or accidental injuries. Considering the nature of the injuries the Doctor is of the view that Death is very very imminent. When questioned, the Pathologist said the assailant who cause these injuries had the intention to kill.”
According to the post mortem report the cause of death are:
"(i) Asphyxia and Exsanguinating
(ii) Haemorrhage due to cut throat wound
(iii) Penetrating Heart Wound".
[109] While it is true that the issue of intention of the accused is a matter for the assessors to determine from the facts of the case including medical evidence and the High Court Judge has not directed them on that path I have no doubt that the failure has not caused any substantial prejudice to the Appellant. The Appellant did not challenge the medical evidence as to its substance. No reasonable assessors would have come to a different finding other than an intention to kill from the evidence of this case including medical evidence. This ground of appeal is rejected.
Ground (f)
The Learned Trial Judge erred in law and in fact to allow inadmissible evidence to be tendered in Court, prejudicing the Appellant’s right to fair trial.
[110] The objection relates to the receipt marked as P7 which the Appellant claims was an undisclosed document. The Appellant had not objected to its production at the trial. I have traced and examined P7 from the original case record and it had been marked through Praveen Kumar. It is a receipt showing that Uday Kumar had taken a loan of $500.00 from Vijay Kumar on 24 May 2015 and Praveen Kumar had signed as a witness. It had been partly paid in two instalments on 22 August 2005 ($200.00) and 13 October 2005 ($200.00). It is not to be found in the Court Record provided to this Court.By producing P7 the prosecution was trying to lend some corroboration to the evidence of Praveen Kumar, Sunil Kumar and Ashran Kumari that Praveen, Sunil and Uday had gone to Lautoka late evening to meet Vijay Kumar to settle a loan taken by Uday Kumar and come back around midnight on 13 October 2005. But, the prosecution had not elicited these details from Praveen Kumar who had said that the signature on P7 dated 13 October 2005 belonged to Vijay Kumar’s son David who had migrated to New Zealand. P7 does not lend any direct proof that Praveen Kumar was at Vijay Kumar’s place in the night of 13 October. Neither does it in any way implicate the Appellant. But P7 has the effect of making the Appellant’s allegation that it was Praveen Kumar who killed the deceased in the night of 13 October less credible.
[111] I think that in the first place the prosecution should have alerted the High Court Judge that it was going to produce an undisclosed document which has some bearing on discrediting the Appellant’s version and corroborating some prosecution witnesses. The High Court Judge too should have been mindful as to whether P7 was a disclosed document and if not give adequate time to the Appellant to examine it and get ready to cross-examine Praveen Kumar on P7.
[112] In Dakuidreketivv Fiji Independent Commission Against CorruptionMisc. Case Nos: HAM 038 & 052 & 055 of 2011, Criminal Case No: HAC 105 of 2009 decided 24 June 2011; [2011] FJHC 359 it was held “The prosecution's obligations of disclosure in criminal proceedings arise from an accused person's right to a fair trial (R v Brown [1995] Cr. App. R. 191, 198).”. The court went on to say that the guidelines issued by the Director of Public Prosecutions in 1998 after the Constitution came into effect on disclosure of prosecution evidence are now zealously followed by the prosecutors in Fiji, effectively giving those guidelines the force of law and in addition, the duty of the prosecution to disclose under the common law exists and it includes documents intended to be tendered by the prosecution at the trial.In Manjula Ali vThe State Crim. App. No. HAA023 of 2005S as quoted in Dakuidreketi’s case, Shameem J. after considering local and New Zealand cases on the prosecution's disclosure obligation had said at p.12: "These authorities reinforce existing principles on the prosecution's duty to disclose. The prosecution has a duty to disclose all relevant material.....”
[113] I agree with the above sentiments on the duty of disclosure. The duty to disclose by the prosecution becomes more onerous when the accused is undefended by a trained lawyer but appears in person. Therefore in the circumstances of this case the High Court Judge should have at least alerted the assessors in the summing up that P7 was adocument which the Appellant had no notice of and therefore not subjected to scrutiny and the weight to be attached should be considered and decided by them.
[114] Though P7 may have caused prejudice to the Appellant and he has a just cause to complain, I am not inclined to hold that it has reached the threshold of a substantial miscarriage of justice. I therefore reject this ground of appeal.
Ground (g)
The Learned Trial Judge erred in law, when he allowed prosecution to adduce new evidence in re-examination of Jaineel Sharma, causing substantial prejudice to the Appellant.
[115] The impugned questions and answers in re-examination were as follows.
State Counsel : Had the accused visited your house before your mother died?
PW12 : Yes
State Counsel : How do you call him?
PW12 : by his name Ashwin
State Counsel : He is not a stranger to you?
PW12 : Yes I know him
State Counsel : Does he eat at your home?
PW12 : Yes
State Counsel : Is he related to you?
PW12 : He is my father’s cousin
State Counsel : Do you know him?
PW12 : I know the accused he is Ashwin, he is related to me as uncle.
State Counsel : Can you point to the Accused ?
PW12 : (PW 12 points at the accused and identify him as Ashwin Chand)
[116] Undoubtedly these questions do not arise from the cross-examination. The State Counsel should have put these questions to the witness as part of the examination-in-chief. The Learned High Court Judge does not seem to have been alert not to allow them in re-examination as the prosecution had not obtained permission of the court to put them to the witness in re-examination. However, in fairness to the High Court Judge it must be mentioned that he had allowed the Appellant to cross-examine the witness on the new matters that had arisen in re-examination and the Appellant had replied in the negative.
[117] It is well established that except with the leave of court questions in re-examination should be confined to matters, including any new matters, arising out of cross-examination. At the same time if any new matter had been elicited in re-examination the opposing party should be given an opportunity to cross-examine the witness on such new matters.
[118] It is clear that the State Counsel had wanted to show that the Appellant was not a stranger as far as the deceased was concerned and the unsuspecting deceased may have allowed the Appellant access to the house due to that familiarity and kinship. In other words the Appellant had no difficulty in entering the house of the deceased in that night though ordinarily a women staying alone may not have allowed a stranger to her house at that time of the day.
[119] However, it is not in dispute that the deceased and the Appellant are related and some of the Appellant’s questions put to Praveen Kumar in cross-examination are based on an admitted close proximity not only with the deceased and her husband but also with Praveen Kumar, Uday Kumar and AshranKumari to the extent that all three of them along with the deceased and her husband were admittedly living in the Appellant’s house for three years. According to Praveen Kumar’s unchallenged evidence he, Uday Kumar and the Appellant are all related to the deceased’s husband, Jai Ram. In the circumstances what had been revealed in the impugned re-examination of Jaineel Sharmahas not caused substantial miscarriage of justice to the Appellant. I reject this ground of appeal too.
Ground (h)
The Learned Trial Judge erred in law and misdirected the Assessors when at paragraph 6 of the Summing Up he said “one of my duties is to find the facts based on the evidence, and apply the law to those facts, without fear, favour or ill will.”
[120] The Appellant’s complaint is that this passage constitutes a clear misdirection and the High Court Judge had usurped the function of the assessors. In Bese v State Criminal Appeal No. AAU 0067 of 2011 decided on 27 February 2015; [2015] FJCA 21 the Court of Appeal held
“The determination of the truth of the record if it is held to be admissible is a determination within the ambit of the fact finding tribunal, be it a panel of assessors, or a judicial officer sitting alone. That being so, it is highly prejudicial to the fact finding function if a judge should make comments that could be seen to usurp that function.”
[121] If one looks at the impugned sentences in the passage in isolation the Appellant’s complaint has considerable merits. However, a closer look at the passage reveals that the Learned High Court Judge was directing assessors of their duties in paragraph 6 of the summing up and what he most probably said or intended to say was “One of your duties ...”not “One of my duties”. On the hand, looking at the totality of the summing up I cannot see a single place where the High Court Judge had expressed any strong opinion on facts to the assessors.
[122] Be that as it may, in my view, the following passage in the summing up of the High Court Judge he had made it very clear to the assessors of their duties and functions.
“...... In the summing up I will be directing you on matters of law, which you must accept and act upon. Regarding the facts of the case, I do not wish to give an opinion, but if I give so you may accept or reject. You are not bound as in matters of law. In brief you have to accept my direction on law and you can judge independently when it comes to facts of the case. Because you are the judge of facts.”
“After assessing all evidence you must decide whether this accused is guilty or not guilty to the offence he is charged.”
[123] In the circumstances I do not agree that the passage being challenged has resulted in a substantial miscarriage of justice and therefore I reject this ground of appeal.
General observations on the summing up
[124] Von Starck v The Queen [2000] 1 WLR 1270 Board Lord Clyde in the Privy Council said, at p 1275
"The function and responsibility of the judge is greater and more onerous than the function and the responsibility of the counsel appearing for the prosecution and for the defence in a criminal trial. In particular counsel for a defendant may choose to present his case to the jury in the way which he considers best serves the interest of his client. The judge is required to put to the jury for their consideration in a fair and balanced manner the respective contentions which have been presented. But his responsibility does not end there. 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 in 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 interests 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. "
[125] Unfortunately, when I consider the totality of evidence against the Appellant I cannot say that the assessors had received the directions and assistance they should have received in matters of law and in facts from the Learned High Court Judge. The summing up has fallen far short of the expected legal norms. It is in the realm of surmise what their verdict would have been had they been properly guided according to law by the High Court Judge.
[126] I must place on record that in coming to the above conclusions on grounds of appeal I have carefully examined the Judgment of the High Court Judge dated 14 March 2012 to find out whether he had given his mind to any of the matters raised in appeal but found no such material. In the two paged Judgment the Learned Judge seems to have merely rubber stamped the jury verdict.
[127] I have been also mindful of the fact that throughout the trial proper and even during the voir dire inquiry the Appellant was unrepresented by a lawyer and he defended himself. I also find from the proceedings that despite being given an opportunity the State Counsel had not brought to the notice of the Learned High Court Judge the areas where he had fallen short in the summing up and had the State Counsel obliged the Judge could have addressed the assessors on those arrears raised before this court by the Appellant in a re-direction. Obviously, I do not expect the Appellant to have done so though he had the same opportunity.
[128] I am also conscious of the fact that a second retrial would entail additional cost to the State and inconvenience to the witnesses but the Appellant is entitled to succeed in his appeal as already decided and to a fair trial according to the law of the land. On the other hand justice must be done and seen to be done by thosewho are dear and near to the deceased in addition to the society at large. Therefore, I conclude that a retrial should be held against the Appellant and direct that the retrial should be concluded as expeditiously as possible. This course of action, I believe, would meet the ends of justice.
Appeal against the sentence
[129] The Appellate argues that the Learned High Court Judge had not considered the period of 3 years which he had served after his first conviction on the same charge in 2006 where he had been sentenced to life imprisonment with a non-parole period of 12 years until the Supreme Court had quashed the conviction and sentence in 2009. He had also been in remand for another period of 6 months as the pre-trial custody period in respect of the present trial (retrial).
[130] The Respondent concedes and agrees with this ground of appeal. Section 24 of the Sentencing and Penalties decree 2009 stipulates
“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender”
[131] This principle had been upheld earlier in Basa v. State Criminal Appeal No.AAU0024 of 2005 decided on 24 March 2006; [2006] FJCA 23 and followed in Ledua v State Criminal Appeal No. CAV0004 of 2007 decided 17 October 2008; [2008] FJSC 31and recently in Bavoro v State Criminal Appeal No: HAA020 of 2012 decided on 15 January 2013; [2013] FJHC 1.
[132] However, in any event, instead of a non parole period the Learned High Court Judge should have set a minimum term to be served before pardon could have been considered under section 237 of the Crimes Decree 2009 read with section 61 (1) of the Sentencing and Penalties Decree 2009. Apart from the above blemishes I do not find any error in the sentencing order of the Learned High court Judge where he had taken matters of relevant law and facts including submissions of both parties into account in imposing the sentence. The Appellant had not specifically brought to the notice of the Judge his previous period of imprisonment and the period of remand. I find that since the date he was sentenced on 22 March 2012 to date he has been in prison upon conviction in this case.
[133] I allow the appeal on the sentence. In the circumstances considering the 03 years of imprisonment after the first conviction, 06 months pre-trial custody and over 04 years of custody since the conviction till the determination of the appeal, I propose to affirm the sentence of life imprisonment but set a minimum term of 14 yearsunder section 237 of the Crimes Decree 2009 read with section 61 (1) of the Sentencing and Penalties Decree 2009 to be served before pardon may be considered. However, this will only be of academic interest considering the decision to order a new trial.
Orders of Court
..........................................................
Hon. Mr. Justice S. Gamalath
JUSTICE OF APPEAL
..........................................................
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
[2] [1954] HCA 78; 28 ALJ 519
[3](1967) Cr. L. Rev. 363
[4]See (1967) 83 L. Q. R. 332 at 338
[5] Times 28-Apr-2005[2005] UKHL 25; , [2005] 1 WLR 1513
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