Chand v State [2017] FJCA 139; AAU112.2013 (30 November 2017)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court of Fiji]

CRIMINAL APPEAL NO. AAU 112 OF 2013
[High Court Criminal Case No. HAC 204 of 2011]

BETWEEN:

RONEEL CHAND
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Chandra JA
Prematilaka JA

Counsel :Ms. S. Vaniqi for the Appellant
Mr. S. Vodokisolomone for the Respondent

Date of Hearing: 21 November 2017
Date of Judgment: 30 November 2017

JUDGMENT

Calanchini P

[1] I have read the draft judgment of Prematilaka JA and agree that the appeal should be allowed, the conviction set aside and a new trial ordered.

[2] Although not necessary I feel compelled to comment briefly on one aspect of the sentence imposed by the learned trial judge. Under section 237 of the Crimes Act 2009 an accused person who has been convicted of murder must be sentenced to a term of imprisonment for life. The section continues by providing that there is a judicial discretion granted to the sentencing judge to impose a minimum term before a pardon may be considered. On numerous occasions both the Supreme Court and this Court have remarked that the parole provisions in section 18 of the Sentencing and Penalties Act 2009 have no application to the task of sentencing for murder.

Chandra JA

[3] I agree with the reasons and conclusions of Prematilaka JA.

Prematilaka JA

[4] This appeal arises from the conviction of the Appellant on a single count of murder. The Amended Information dated 24 May 2013 alleged that the Appellant had committed murder of his wife, Krishma Nath on 19 February 2011 at Nasinu by setting fire to her, contrary to section 237 of the Crimes Decree 44 of 2009 (now Crimes Act, 2009). After trial, he was convicted and sentenced to life imprisonment with a non-parole period of 18 years on 20 November 2013.

[5] The Appellant had filed a timely application for leave to appeal against the conviction and sentence pursuant to section 21(1) of the Court of Appeal Act. Altogether, 07 grounds of appeal had been urged against the conviction and two against the sentence. One ground of appeal against the conviction had been later abandoned. On 25 July 2014, the single Judge of the Court of Appeal had granted leave in respect of Grounds 1, 2, 3, 5, 6 and 7 against the conviction and rejected leave against the sentence.

[6] Though there is no formal renewed application by the Appellant to canvass the sentence before the Full Bench in terms of section 35(3) of the Court of Appeal Act, the Appellant and the Respondent in their respective written submissions had focused their attention on the sentence as well.

Grounds of Appeal

[7] The grounds of appeal against the conviction are as follows:

‘(1) That the learned trial judge erred in law and fact in not directing the assessors a fair balance as between the prosecution case and the defence case hence there was a substantial miscarriage of justice.

(2) That the learned trial judge erred in law and fact in directing the assessors very strongly/forcefully the prosecution version of evidence and not directing the assessors the defence version in a similar manner. The failure to do so denied the appellant a fair trial and a substantial miscarriage of justice.

(3) That the learned trial judge erred in law and in fact in misdirecting himself and the assessors on the issue of circumstantial evidence in this case where the conviction depended essentially on circumstantial evidence, it was a duty on the part of the learned trial judge not just to tell the assessors that they had to be satisfied beyond reasonable doubt of the appellant's guilt but also to direct them in express terms that before they can find the appellant guilty, they must be satisfied not only that the circumstances are not consistent with his having committed the crime, but also that the facts proved are such as to be inconsistent with any other reasonable conclusion or hypothesis.

(4) That the learned trial judge erred in law and fact in holding evidence of "dying declaration" admissible without first holding a voir dire to decide its admissibility.

(5) That the learned trial judge erred in law and fact in misdirecting himself and the assessors on the issue of "dying declaration" when he allowed the State to call evidence in support of "dying declaration".

(6) That the learned trial judge erred in law in not adequately considering that the test for "dying declaration" evidence was "whether the deceased was under a settled and hopeless expectation of death" (as was held in the Criminal Appeal in Perry [1909] 2 KB 1967 and applied in Raj v Reg#16m [1968] 14 FLR 24 and State ikula;ef="htt="http://www.paclii.org/fj/cases/FJHC/FJHC/2008/45.html" title="View Case">[200>[2008] FJHC 45; HC 105 of 2006) wh the evidence provided in court demonstrated otherwise.

(7) That the learnedarned trial judge erred in law and fact in not adequately directing/misdirecting that the prosecution evidence before the court proved beyond reasonable doubt that there were serious doubts in the prosecution case and as such the benefit of doubt ought to have been given to the appellant (full particulars would be provided upon receipt of the court record)’.

[8] The grounds of appeal against the sentence are as follows:

(1) That the appellant appeals against sentence being manifestly harsh and excessive and wrong in principle in all the circumstances of the case.

(2) That the learned trial judge erred in law and in fact in taking irrelevant matters into consideration when sentencing the appellant and not taking into account relevant considerations.

Summary of facts

Prosecution evidence

[9] The State presented the following evidence at the trial.

(i) Appellant and the deceased had got married in 2008 after a courtship for a considerable time. After marriage, they had been living at Lot 21, Reba Circle, Nadera with the Appellant’s mother and sister.
(ii) On 19 February 2011, around 10 a.m. the father of the deceased, Jitendra Nath had received a call from her that her husband had burnt her, who had asked her to go to the Police Post, 07 blocks away. He had met the Appellant at the ICU of CWM Hospital and when questioned as to what happened he had said that the deceased and his sister had fought in the morning over reading the newspaper. The witness had not deliberately asked the appellant anything more.

(iii) Suresh Pratap, a taxi driver had seen a girl coming out of a house at 21, Reba Circle wearing a long dress and fully wet. He had thought that she was mad. When asked what happened, she had told him that her husband had burnt her. He had taken her to Nedera Police Post and from there to the hospital. On the way the deceased had spoken to someone on the phone. He had seen her scratching her body and she had left behind some parts of her skin in his car. The witness had carried the deceased to the CWM Hospital in his arms.

(iv) Josephine Joytika, a neighbour whose brother was married to the deceased’s elder sister, had seen the deceased inside the taxi near the Police Post around 10.00 - 10.30 a.m. and asked her what had happened and been told that her husband had burnt her. She had seen mud and grass on the face of the deceased.

(v) PC 4141 F Cassidy at Nadera Police Post had heard a taxi sounding the horn about 10.40 a.m. and gone there to find a lady lying at the backseat. She had been in pain and not said anything to him but the taxi driver had told him what the deceased had told him earlier to the police officer.

(vi) Losena Vunidovu, a close neighbour of the Appellant and the deceased, had heard an argument for 5-7 minutes in unrecognised voices of a man and a woman in Hindi from the kitchen of the Appellant’s house at 7.00 a.m. The woman had been crying sadly and sorrowfully wanting comfort and the man’s voice sounding harshly. The woman’s feelings had sounded hurt and she had appeared to be in self-pity. After that she had heard the woman shouting or yelling and kitchen appliances falling to the ground. Later she had seen the Appellant talking to someone on the phone. After a while she had seen an Indo-Fijian lady moving around at the porch crying and looking for something and going back inside the house. However, she had admitted under cross-examination that she had not told the police of hearing a man having spoken harshly or having heard things falling in the kitchen and also had admitted having lied to the police on picking up lemon leafs while observing happenings at the Appellant's house.

(vii) Dr. Ramaswamy P S. Gounder, a forensic pathologist who had conducted the post-mortem examination of the deceased on 27 February 2011 had concluded that 40% burns to the body had resulted in her death.

(viii) Dr. Amelia Jane Andrew, a senior medical officer, had treated the deceased from February 2008 as an outpatient for epilepsy and last seen her on 16 February 2011. He had prescribed anti-epileptic drugs to her from the inception but had not been in possession of any information (in the records) or not been able recollect whether the deceased had told her of suicidal tendencies or past such attempts.

[10] Both the prosecution and the defence had agreed that there was a case to answer and acting under section 231(2) of the Criminal Procedure Code the High Court Judge had called for the defence.

Defence evidence

[11] The Appellant had given evidence and said that on 19 February 2011 he had woken up at 8.30 a.m. but felt still sleepy and moved to the settee facing the driveway and been half-asleep for about 10-20 minutes. He had then heard a yelling and thought that the deceased had got an epileptic attack. He had run inside the house and been shocked to see the deceased in flames in the kitchen. She had said ‘Ron pour the water’. He had poured a pot of water taken from the kitchen tap on her face and chest but the fire had not abated. Then, he had rushed to the bathroom, taken a bucket, run outside, filled the bucket with water from 44 gallon drum and come back to the kitchen to pour water on the deceased. Still the fire had been on. He had repeated the same and finally the flames had extinguished. All this time the deceased had been yelling loudly. She had begun to take her clothes off in the sitting room while the Appellant had been trying to subside the fire in the kitchen.

[12] When he had eventually put out the fire in the kitchen in 5 -10 minutes he had seen the deceased going towards the road but not seen her getting into a taxi. She had said she was going to her mother’s place. He had asked her to call an ambulance and straightaway go to CWM Hospital. When she left the house he had not seen burn marks on her face, chest or front area except reddish marks on the top of her shoulders. According to him at that moment she was able to speak and walk and in a stable condition. He had called her on her mobile phone but she had not answered. He had called his mother who was away and told her that the deceased had set herself on fire and the kitchen also had caught fire. When she came in about 10 minutes, he had told her what had happened. Both had then gone to the hospital around 10.45 a.m. and seen the deceased in a serious condition. He had visited hospital on 19^th, 20^th, 21^st and 22^nd . After hearing the death of his wife on the 24th, he had visited the hospital once again. At some point of time the police had advised him not to go to hospital.

[13] The Appellant had further said that in 2008 for the first time the deceased had suffered an epileptic attack where she had been found fallen on the floor with some tablets around her after her yelling had been heard by the inmates of the house. She had blamed the Appellant for what had happened to her and taken to a doctor for treatments. Thereafter every year she had had similar bouts of fits. In the same year, the deceased had stabbed the Appellant in the finger resulting in criminal proceedings against her but he had reconciled with her. In the year 2010, during Diwali week whilst the family members were having tea, the deceased had gone to the kitchen and a few minutes later a relation called Eseta had followed her who had then called the Appellant. When he went he had seen Eseta holding the deceased from behind and the deceased had alleged that ‘she was trying to kill me’. Then the deceased had suffered an epileptic attack but when she recovered she had apologised to Eseta.

[14] The Appellant had denied that there was a loud argument in that fatal morning and his position had been that his first priority was to save his wife and then the house. Once he had finished extinguishing fire that had engulfed his wife, he had then tried to save the house in which he had succeeded. According to him, the deceased’s moods used to change depending on whether or not she had taken the prescribed pills for epilepsy. He had also said that he married her because he loved her describing her as ‘loving and caring’ and the ‘love of his life’.

[15] Eseta Yavuvatu, who used to call the deceased ‘babi’, had been with the Appellant’s family members on a day in the year 2010 having tea outside the house on the porch and suddenly seen the change of mood in the deceased. The deceased had then gone inside and she had followed her into the kitchen to wash her cup and seen the deceased pouring kerosene on her with a container. She had yelled out to the Appellant while holding the deceased from behind. After the Appellant came, the deceased had accused Eseta of having poured kerosene on her. Immediately thereafter, she had started shaking and going to fall but the Appellant had held her. Later, when the deceased recovered she had apologised to Eseta. The prosecution had suggested to Eseta that she was fabricating a story. Her reply had been that she had got to know of the case against the Appellant through newspapers only a week back though she had heard that the deceased had passed away in 2011 and had no opportunity of informing the police of the incident in 2010 soon after the allegation of murder against the Appellant as she was away.

[16] Shanti Chand, the Appellant’s mother had confirmed that she received a call from the Appellant informing her that the deceased had been burnt and she had gone to hospital. According to her, when she had arrived home the Appellant had been in a state of shock, emotional and crying while going to hospital in her car. He had said that he had not known how the deceased had been burnt. The witness had said that the Appellant and the deceased had been very much in love, happily married and been used to go out together every Saturday. The Appellant had taken care of the deceased whenever she had fallen sick. The witness had also confirmed the incident in the year 2008 where the deceased had suffered from a fit and taken to hospital by the Appellant.

[17] I shall now examine the grounds of appeal.

[18] Ground 1, 2 and 7 (summary)

(1) The trial judge had not struck a fair balance as between the prosecution case and the defence case in the summing up.

(2) The trial judge had directed the assessors very strongly/forcefully the on the prosecution version of evidence and failed to do the same on the defence version.

(7) The trial judge erred in law and fact in not adequately directing/misdirecting that the prosecution had to prove its case beyond reasonable doubt and if there were serious doubts in the prosecution case the benefit of doubt ought to have been given to the appellant.

Relevant Law

[19] In Silatolu v The State Criminal Appeal No.AAU0024 of 2003S: 10 March 2006 [2006] FJCA 13 the Court of |Appeal said

‘When summing up to a jury or to assessors, the judge’s directions should be tailored to the particular case and should include a succinct but accurate summary of the issues of fact as to which decision is required, a correct but concise summary of the evidence and of the arguments of both sides and a correct statement of the inferences which the jury is entitled to draw from their particular conclusions about the primary facts; R v Lawrence [1982] AC 510It should be an orderly, objective and balanced analysis of the case; 0;R v [1995] 3 NZLR 129.’hasisd)

‘The questionstion for this Court is whether, considereidered as a whole, the summing up so lacked fairness as to require an order for a fresh trial’.

[20] In Tamaibeka v State Criminal Appeal No.AAU0015 of 1997S: 08 January 1999 [1999] FJCA 1 the Court of Appeal held:

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

[21] 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 detation of the truth of the record if it is held to be admissdmissible 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.” (emphasis added)

[22] IV>Von Starck v The Queen [2000] 1 WLR 1270 Board Lord Clyde in the Privy Council said, at p 1275:

‘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.’ (emphasis added)

[23] Lord HailsHailsham of St. Marylebone L C in R rence #160;[1982] AC a>, 5id:

<

‘A directirection to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.’ (emphasis added)

[24] Cooke P. i P. in R v. Fotu [1995] 3 NZ9 said as follows

‘Considered ased as a whole the summing up leaves not the slightest doubt about what the judge was putting forward as the only just, proper and correct verdict, although he was careful to say frequently that it was a matter for the jury. A judge is entitled indicate his own views of the evidence, provided that as a whole the summing up is a fairly balanced and fair presentation of the case to the jury (Broadhurst v. R [196 441; R v Ryan [1973] 2 NZLR 611)’

[25] In R v Clayton (133 Cr App R 22 Lo22 Lord Goddard CJ had this to say about that duty:
"The duty of a judge in any criminal trial .... is adequately and properly performed .... if he puts before the jury, clearly and fairly, the contentions on either side, omitting nothing from this charge, so far as the defence is concerned, of the real matters upon which the defence is based. He must give to the jury a fair picture of the defence, but that does not mean to say he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence ...."

[26] The Trial Judge had addressed the assessors on the element of 'wilful act' in the following words

' On the first element of murder, a "wilful act" is a voluntary act by the accused. It is feeling of strong determination to do something that he wanted to do. It is what he wanted to happen in a particular situation. This is the physical element of the offence of murder. For example, A wants to shoot B with a gun. A picks up a gun, and shoots B in the heart, A did a "wilful act". Likewise, if A wants to burn B using kerosene and fire. When A pours kerosene on B and then lights her on fire, A did a "wilful act"(emphasis added)

[27] This Court has on numerous occasions cautioned and even warned the trial judges against using examples in the summing up which could easily be related by the assessors to the facts before them. These kind of examples could have a lasting memory in the assessors in their deliberations at the end and should be avoided by the trial judges at all times. Given the facts of this case, I have no doubt that one of the examples given by the Trial Judge would have had an adverse impact highly prejudicial to the Appellant on the assessors.

[28] In examining the summing up of the Learned High Court Judge, I also came across the following disturbing directions.

‘We will first consider the element in paragraph 9(iii)(a), that is, the accused "intended to cause the person's death" ... In other words, in the context of this case, it is not possible to look into the accused's brain, to find out his intention, at the time he burnt the deceased.’ (emphasis added)

‘Now6;Now we consider the fault element in paragraph 9(iii)(b), that is, the accused was "reckless as to causing the deceased's death". If you founat, the prosecution had satisfied you beyond reasonable dole doubt that, the accused intended to cause the deceased's death, at the time he burnt her, you do not need to consider the second fault element of murder.’ (emphasis added)

‘If you find that the accused was reckless, when he burnt the deceased, then the second fault element of the murder charge is satisfied.’ (emphasis added)

[2e High Cigh Court Judge had addressed the assessors as above on the third/fault element of the offence of murder when the main issue in the case was whether theased was set on fire by the Appellant or she herself did thid that to her. In my view, the High Court Judge should have directed the assessors first as to who had caused the act of setting fire and then if that act had resulted in the death and finally if the assessors could determine that it was the Appellant who had caused the act of setting fire and if that act had resulted in the death (there is little doubt about the cause of death), then to look for the fault element in the Appellant when he had committed the act.

[30] The above directions would have left an indelible impression in the minds of the assessors, whose opinion was unanimous in the guilt of the Appellant, that it was the Appellant who had set fire to the deceased as a foregone conclusion or should be taken as given coming from the Trial Judge as it was.

[31] Once again in describing the prosecution evidence the Trial Judge had said:

‘According to the prosecution, the accused set fire to his wife by pouring kerosene on her, and setting her alight.’ (emphasis added)

[32] This statement represents an error on the part of the Trial Judge in that there had been no evidence that anybody, leaving aside the Appe, had poured kerosene on her. None of the Counsel managed to point out such a piece iece of evidence. No witness had spoken to the presence of kerosene on her body or even her having smelt of kerosene. In fact Dr. Gounder had categorically said that he could not confirm what had been used to cause the deceased’s burns. This constitutes not only an error of fact that was prejudicial to the Appellant but also an indication of a predetermination of the trial judge.

[33] Further the Trial Judge had said referring to the defence evidence that:

‘The accused denied setting his wife on fire on 19th February 2011. He didn't tell us how the fire on his wife started on 19th February 2011.’ (emphasis added)

[34] In ire first place there was no burden on the Appellant to explain how the fire had started as it was for the prosecution to show as to how the deceased had caught fire. Secondly, the Appellant had explained all what he could possibly have explained about seeing his wife in flames. I am of the view that the above statement would have misled the assessors causing them to reject the Appellant’s version of events out of hand.

[35] The Learned Judge had also said in connection with the proof of the first and third limbs of murder that
‘Someone burn her resulting in her death – the second element of murder – please, refer to paragraph 9(ii) hereof. The only issues left to be resolved are:
(i) Who burn her? (1st element of murder)
(ii) Did that person intend to kill her, or was reckless in causing her death, when he burnt her (3rd element of murder).’ (emphasis added)

[36] When the Trial Judge had told the assessors that someone had burnt the deceased he had effectively ruled out the possibility of suicide was very much a possible scenario given the facts of the case. This obviously would have mave made the assessors not giving their mind to the defence case at all. A trial judge should not withdraw or appear to withdraw a possible defence arising from evidence from the assessors whether taken up by the defence or not, for it is tantamount to denying a fair trial.

[37] The Trial Judge had further said that

‘The accused denied setting his wife on fire on 19th February 2011. He didn't tell us how the fire on his wife started on 19th February 2011.’ (emphasis added)

<] In the fire first place there was no burden on the Appellant to explain how the fire had started as it was for the prosecutionhow that how the deceased had caught fire. Secondly, the Appellant had explained all what hhat he could possibly have explained about seeing his wife in flames. I am of the view that the above statement would have completely misdirected the assessors and rejected the Appellant’s version of events out of hand.

[39] Then, the Trial Judge had said dealing with the case against the Appellant that

‘It was accepted by both parties that, at the material time, only Karishma and her husband, the accused, were at the crime scene, that is, in their kitchen.

[40] There was no evidence that the Appellant and the deceased were both present in the kitchen when she had caught fire. The only evidence on this point had come from the Appellant who had said that he had been on the settee in the porch when he had heard the deceased yelling and run towards the kitchen to see her in flames. In my view this direction by the Judge would have had the potential to give the inevitable impression to the assessors that the Appellant was in the presence of the deceased when she caught fire suggesting that it must have been none other than the Appellant who had set her on fire, particularly when the Judge had literally withdrawn the possibility of suicide from them.

[41] The Learned Judge had also highlighted the following.

‘It was accepted by the parties that, the accused, Karishma's husband, did not accompany her seriously burnt wife, to CWM Hospital.’

‘It was accepted by the parties that, the accused, her husband was not beside her bedside, when she departed this world.’

[42] These were no agreed facts on the above matters but were borne out by the evidence in the case. Considered in isolation, they represent two factually correct positions. However, the Appellant had given evidence as to the circumstances under which the deceased had left home on her own. His having not accompanied her had not been a wilful or deliberate act. The Appellant had also explained that he had visited hospital every day except on 23 February, after the incident and gone to hospital on the day she died after hearing the news of her death. The Trial Judge had failed to put before the assessors the Appellant’s position contextually in connection with the above ‘failures’ on his part without which the assessors may well have drawn inferences adverse to him. In my view this is another instance where the Judge had failed to put the defence case before the assessors fairly, causing obvious prejudice to him.

[43] In a case such as this it is not enough to narrate the evidence of prosecution witnesses and defence witnesses as done by the Learned Trial Judge whose summing up consists of the deficiencies and errors referred to in many a decisions quoted above and in particular R v Ryan [1973] 2 NZLR 611.

[44] Rnd J in the Court of Appealppeal of New Zealand in Ryan#160;ssaid.

"There are cases where, in the particular circumstances, it has been held sufficient for a judge to leave the matter to the jury simply on the basis of the nce they have heard and thed the addresses of counsel.... On the other hand there have been cases in which the summing up was held inadequate because it emphasised matters adverse to the accused but failed adequately to convey to the jury the answers made by the accused..... In some cases it may be sufficient for the judge to refer in the most general terms to the issue raised by the defence, but in others it may be necessary for him not merely to point out in broad terms what the defence is but to refer to the salient facts and especially those upon which the accused based his defence." (emphasis added)

[45]Trial rial Judge had also referred to the evidence of Losena Vunidovu whose evidence had appeared to suggest that there had beenated argument between the Appellant and the deceased in that fatal morning. The inference snce sought to be drawn by the prosecution, obviously, is that the Appellant in a state of anger and rage set fire to the deceased. However, the Trial Judge had failed to point out to the assessors many discrepancies in her evidence such as non-recognition of voices, lack of understanding of the conversation in Hindi and her admission that she had not said those vital things or lied to the police. The Trial Judge should have directed the assessors that even if her evidence is accepted on the face value it is equally consistent with a scenario involving a suicide or an attempted suicide gone wrong by the deceased as the deceased's self-pity or sorrow might have led her to the act of self-molestation.