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 Reginam [1968] 14 FLR 24 and State v Tirikula [2008] FJHC 45; HC 105 of 2006) whereas the evidence provided in court demonstrated otherwise.

(7) That the learned 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 510. It should be an orderly, objective and balanced analysis of the case; R v Fotu [1995] 3 NZLR 129.’ (emphasis added)

‘The question for this Court is whether, considered 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 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.” (emphasis added)

[22] In 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 Hailsham of St. Marylebone L C in R v Lawrence [1982] AC 510, 519 said:

‘A direction 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. in R v. Fotu [1995] 3 NZLR 129 said as follows

‘Considered 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 [1964] AC 441; R v Ryan [1973] 2 NZLR 611)’

[25] In R v Clayton (1948) 33 Cr App R 22 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)

‘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 found that, the prosecution had satisfied you beyond reasonable 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)

[29] The High 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 the deceased was set on fire by the Appellant or she herself did 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 Appellant, had poured kerosene on her. None of the Counsel managed to point out such a piece 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 the 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 which was very much a possible scenario given the facts of the case. This obviously would have 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)

[38] In the first place there was no burden on the Appellant to explain how the fire had started as it was for the prosecution to show that 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 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] Richmond J in the Court of Appeal of New Zealand in Ryan said.

"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 evidence they have heard and 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] The Trial Judge had also referred to the evidence of Losena Vunidovu whose evidence had appeared to suggest that there had been a heated argument between the Appellant and the deceased in that fatal morning. The inference 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.

[46] The Learned High Court Judge had also not drawn the attention of the assessors to the fact that Josephine Joytika who also had testified to a dying declaration had spoken to having seen mud and grass on the face of the deceased which no other witness before or after the event had seen or explained. Nor had the Trial Judge put to the jury to consider as to why the taxi driver appears to have taken much longer than necessary to get to the police post which was just 07 blocks away from her home. As to why the deceased had not implicated the Appellant in the crime to PC 4141 F Cassidy who arrived at the taxi almost at the same time as Josephine Joytika had also not been put before the assessors.

[47] Similarly and importantly, the Trial Judge had not directed the assessors to consider why the Appellant who allegedly had set fire to the deceased intending to cause her death had doused the fire promptly only to see her implicating him in the crime in dying declarations. Suresh Pratap has seen her drenched when she arrived at the taxi.

[48] On the other hand the Learned Judge had failed to adequately put before the assessors the clear evidence that the deceased had been under treatment since 2008 for epileptic fits and there had been attempts to self-inflict harm on her by the deceased who had in fact injured the Appellant, coupled with her tendency to implicate others on such occasions only to apologise later.

[49] The Learned Judge had literally dismissed the evidence of the deceased’s previous suicide attempt in 2010 as narrated by Eseta as a ‘pack of lies’ without leaving it to the assessors to assess her credibility, though he had attributed it to the State. Not only Eseta but the Appellant also had spoken to this incident in his evidence.

[50] I am constrained to quote a part of another paragraph from the summing up.

‘The State asks you to disregard the accused's denials. According to the State, he was more interested in saving his kitchen than his wife. As of today, his kitchen is intact, while his wife is dead. According to the State, this fact spoke volumes about the accused's act on 19th February 2011 and his intention.’

[51] Though attributed to the State, this passage, coming as it was from the Judge would have most certainly had the effect of the assessors rejecting the Appellant’s evidence completely. Nevertheless, the Judge had failed to point out to the assessors that his evidence had remained, by and large, unimpeached and he had given a consistent narrative of the events in the caution interview which was exculpatory and produced by the prosecution as part of its case. In the caution interview and in evidence the Appellant had explained why he wanted to save the deceased first and the house second which had gone unnoticed by the Judge. He was never more interested in saving the kitchen than his wife.

[52] Assessed against the judicial pronouncements, the summing up, in my view, is devoid or suffers from the lack of following essential characteristics.

(i) The summing up not tailored to the facts and circumstances of the case.
(ii) The weaknesses and defects of the prosecution evidence not appropriately highlighted.
(iii) Little weight given to the strong points for the defence and a fair picture of the defence not given to assessors.
(iv) The contentious issues put in a way favourable to the prosecution and unfavourable to the Appellant.
(v) The Judge at times appears to have usurped the fact finding function of the assessors.
(vi) As a whole the summing up is not a fairly balanced and a fair presentation of the case to the jury.

[53] R v Wilkes and Briant [1965] VicRp 64; [1965] VR 475, 479, Smith J said
‘Important amongst the necessary safeguards is the established rule that it is the judge’s duty to put the defence fairly to the jury. That rule cannot, save in quite special circumstances, be departed from, without serious risk of a miscarriage of justice."

[54] This was not a straightforward case and dependent almost exclusively on the alleged dying declarations of the deceased. As against them, there was strong evidence presented by the defense. Thus, it was essential for the Judge to have adhered to the judicially laid down rules of summing up to ensure a fair trial. The Trial Judge had failed to put the case for the defense to the assessors fairly and objectively while either not highlighting or glossing over the weaknesses of the prosecution. Regrettably, some factually inaccurate statements have added to the prejudice of the Appellant. At no stage in the lengthy summing up had the Trial Judge described to the assessors, in a sufficiently detailed and impartial manner, what the defence was and the evidence upon which it relied, though a summary of the evidence of defense witnesses are found in the summing up.

[55] As remarked in Tamaibeka , it is my view that in the present case the summing up lacks those essential qualities of objectivity, evenhandedness and balance required to ensure a fair trial. I am convinced that the summing up had led to a miscarriage of justice. In the light of that conclusion the conviction cannot stand. This is not a fit case for the exercise of the proviso to Rule 23(1) of the Court of Appeal Rules as urged by the Respondent.

[56] Accordingly, I allow the appeal on matters raised under Grounds of Appeal No.1, 2 and 7.

[57] Ground of Appeal No.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 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' (emphasis added)

[58] The Learned High Court Judge had dealt with circumstantial evidence in the following terms.

'The State's case against the accused rested primarily on Karishma's dying declaration, and what is often termed as circumstantial evidence. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime. It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think it would be an unusual case indeed in which a jury can say "We now know everything there is to know about this case". But the evidence must lead you to the sure conclusion that the charge which the defendant faces is proved against her. Circumstantial evidence can be powerful evidence, but it is important that you examine it with care, and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case. Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, and neither the prosecution, the defence nor you should do that.'

Relevant Law

[59] Direct evidence of a fact consists of the testimony or assertion of a person who claims to have perceived the fact with his own senses: for example, the evidence of a person who says that he saw a murder, is direct evidence on the factum probandum (i.e. the fact to be proved). Circumstantial evidence is a fact or facts from which a fact in issue may be inferred (i.e. facta probantia). It means evidence as to the existence of all collateral facts and circumstances from which the commission of an offence by the accused can reasonably be inferred. Therefore, the dying declarations under consideration could be properly treated as items of circumstantial evidence.

[60] In Chandra v. State Criminal Appeal No.CAV 21 of 2015: 10 December 2015 [2015] FJSC 32 where the main issue was whether it was a case of murder or suicide, the Supreme Court inter alia said

‘Therefore, the cumulative effect of the circumstantial evidence should be consistent with the guilt of the accused and inconsistent with the innocence of the accused. The trial judge had erred in law when he failed to give proper direction regarding circumstantial evidence having regard to the facts and circumstances of this case.’

[61] This school of judicial thinking is that the jury has to decide, not only whether the facts are consistent with the hypothesis of the accused’s guilt, but also whether they are inconsistent with any other reasonable hypothesis of his innocence before the drawing of the inference of guilt as laid down in R v. Hodges (1838) 2 Lew. C. C. 227; 8C and P.

[62] The correctness of Hodges was doubted in McGreevy v. Director of Public Prosecutions (1973) 1 W.L.R 276; (1973) 1 A.E.R 503; Cr. L. Rev. 232 where the House of Lords held that there is no rule or additional duty that where the prosecution depends on circumstantial evidence, the jury must be separately told not to convict unless the evidence is inconsistent with all possible explanations except the accused’s guilt. The Law Lords also held that the duty of the judge is to make clear to the jury in terms which are adequate to cover the particular features of the case that they must not convict unless they are satisfied beyond reasonable doubt of the guilt of the accused. According to Lord Morris of Borth-y-Gest

‘The particular form and style of a summing up, provided it contains what must on any view be certain essential elements, must depend not only upon the particular features of a particular case, but also upon the view formed by a judge as to the form and style that will be fair and reasonable and helpful. The solemn function of those concerned in a criminal trial is to clear the innocent and to convict the guilty.’(emphasis added)

[63] However, it looks as if the Supreme Court in Chandra has still preferred Hodges to McGreevy. Nevertheless, in Lulu v. State Criminal Appeal No. CAV 0035 of 2016: 21 July 2017 [2017] FJSC 19, His Lordship the Chief Justice said “We accept that the position in McCreevy is the correct approach to directions on circumstantial evidence in Fiji.’ and approved the following direction by the trial judge on circumstantial evidence.

'In drawing that inference, you must make sure that it is the only inference that could be drawn, and no other inferences ... could have been possibly drawn from the said circumstances. That should also be the inescapable inference that could be drawn ... in the circumstances.

It is not sufficient that the proved circumstances are merely consistent with the accused person having committed the crime. To find him guilty you must be satisfied so as to feel sure, that the inference of guilt is the only rational conclusion that could 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 person committed the crime.'

[64] Therefore, there still appears to be two schools of thought in the Supreme Court whether to accept Hodges or McGreevy. However, it is a matter for the Supreme Court to rule upon in the future.

[65] In Koya v State Criminal Appeal No.AAU 0011u of 1996s:16 May 1997 [1997] FJCA 15 the Court of Appeal quoted with approval what Dawson J. said in Shepherd v R (1990) 170 CLR at 579 in the following terms

'It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence' (emphasis added)

[66] When the impugned paragraph in the summing up is considered it appears that the High Court Judge had couched his direction on circumstantial evidence in such a way as not to lend it for serious criticism in terms of the judicial guidelines. He had covered just the minimum of the required direction on circumstantial evidence. However, considering the fact that the case against the Appellant was based only on circumstantial evidence in the instant case and the Appellant had presented a strong case urging his innocence, I am of the view that the Trial Judge should have directed the assessors as to whether there was an alternative inference of suicide by the deceased giving rise to a reasonable doubt in the allegation of homicide. The passage quoted above from Shepherd commends itself to me, particularly on the facts and circumstances of this case. In this respect, the summing up falls short of the appropriate directions that should have been given on the facts and circumstances peculiar to this case.

[67] Therefore, I am inclined to allow the appeal on ground 3 and not inclined to apply the proviso to proviso to section 23(1) of the Court of Appeal Act.

[68] Grounds of Appeal No. 5 and 6

'(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 Reginam [1968] 14 FLR 24 and State v Tirikula [2008] FJHC 45; HC 105 of 2006) whereas the evidence provided in court demonstrated otherwise.'

[69] It is well settled that dying declarations are admitted in evidence at a trial for murder or manslaughter as an exception to the rule against hearsay. The rationale is that the reliability of the decision is assured by the imminence of death, and the consequent lack of motivation to tell anything other than the truth.

[70] In Nembhard v R (1982) 74 Cr App R 144; [1981] 1 WLR 1515; [1982] 1 All ER 183; [1982] Crim LR 41] Sir Owen Woodhouse, delivering the judgment of the Privy Council, held at pages 146 – 148 as follows:

'It is not difficult to understand why dying declarations are admitted in evidence at a trial for murder or manslaughter and as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. So it is considered quite unlikely that a deliberate untruth would be told, let alone a false accusation of homicide, by a man who believed that he was face to face with his own impending death.'

[71] Lord Radcliffe in giving the opinion of the Privy Council in Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965 at 970 said of what is hearsay evidence and when it becomes objectionable.

'Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.' (emphasis added)

[72] Lord Wilberforce in Ratten v R [[1971] UKPC 23; 1972] AC 378 at page 387; (1972) 56 Cr App R 18 elaborated more on hearsay evidence as follows.

"The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on 'testimonially', i.e., as establishing some fact narrated by the words. Authority is hardly needed for this proposition, but their Lordships will restate what was said in the judgment of the Board in Subramanian v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965 at p.970 ...]." (emphasis added)

[73] The prosecution led in evidence the statements allegedly made by the deceased to 03 prosecution witnesses in the aftermath of her having caught fire on the basis that they were dying declarations and obviously relied on the truth of those statements to prove its case. Therefore, I shall now consider the law relating to dying declarations.

Relevant Law

[74] ARCHBOLD Criminal Pleading Evidence & Practice 1997 Edition (Sweet & Maxwell) at page 1190 citing a series of cases enumerates the rules on admission of dying declarations.

' Upon an indictment for murder or manslaughter, the dying declarations of the deceased are receiveable in evidence, if it appears to the satisfaction of the judge ......... that the deceased was conscious of his being in a dying state at the time he made them .......... and was sensible of his awful situation........ even though he did not actually express any apprehension of danger .............. and his death did not ensue until a considerable time after the declarations were made ..................'

(emphasis added)

[75] Eyre CB in R v Woodcock [1789] EngR 2091; (1789) 1 Leach 500 laid down the legal basis for the admissibility of dying declarations and said that the situation gives rise to an 'obligation equal to a positive oath administered in a court of justice'.

'The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; the situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.'

[76] According to Murphy on Evidence 5th Edition at page 208, from the dicta in Woodcock and other cases arose the proposition that there must be a settled hopeless expectation of imminent death which ARCHBOLD (supra) at page 1190 elaborates quoting some decisions as being that the declarant must have abandoned all hope of living; but that the declarant need not be expecting immediate death, i.e. within the day, though he must be expecting to die within a very short time [vide R. v. Peel (1860) 2 F. & F.21, adopted in R. v. Gloster (1888) 16 Cox 471, and approved in R. v. Perry (1909)2 K.B.697 at p.701[2007] EWCA Crim 1118; , 2 Cr. App. R. 267 at 270,CCA]. Blackstone's Criminal Practice 2003, Oxford University Pres, 13th Edition, 2003 at page 2259 states ' that there must be an unqualified belief in the nearness of death; there must be a belief without hope in the declarant that he is about to die.'

[77] Byles J. in R. v. Jenkins (1869) L.R. 1 C.C.R. 187 said ' Dying declarations ought to be admitted with scrupulous, and I almost said with superstitious care. There must be an expectation of impending and almost immediate death, from the causes then operating. The authorities show that there must be no hope whatever.' ARCHBOLD (supra) at page 1190 and 1191 continues

'It must be shown that the deceased, when he made the statement, was under the impression that death was impending, not merely that he had received an injury from which death must ensue, but that he then belived that he was at the point of death: R. v. Forester (1866) 10 Cox 368; R. v. Smith (1887) 16 Cox 170; R. v. Mitchell (1892) 17 Cox 503; R, v. Whitmarsh (1898) 62 J.P. 680 at 711; and R. v. Perry.'

[78] In Nembhard it was further held that

'There is the further consideration that it is important in the interests of justice that a person implicated in a killing should be obliged to meet in Court the dying accusation of the victim – always provided that fair and proper precautions have been associated with the admission of the evidence and its subsequent assessment, by the jury. In that regard it will always be necessary for the jury to scrutinize with care the necessarily hearsay evidence of what the deceased was alleged to have said both because they have the problem of deciding whether the deponent who has provided the evidence can be relied upon and also because they will have been denied the opportunity of forming a direct impression against the test of cross – examination of the deceased's own reliability.'

[79] In Raj v Reginam 14 FLR 241, the Court of Appeal did not criticise the ruling of the learned Judge upon the trial within a trial when he had said " I find that the Crown has proved beyond all reasonable doubt that at the time of making this declaration the deceased was in imminent danger of death and had abandoned any hope of recovery. ...... He was not merely expressing a sense of danger of death, but a settled hopeless expectation of it. I rule, therefore, in favour of the Crown on this issue.'. Thus, it is clear that the Court of Appeal in Fiji had, by necessary implication, approved the test of 'settled hopeless expectation of imminent death' in deciding on the admissibility of a statement by a deceased as a dying declaration. The same test had been adopted once again in State v Tirikula HAC105 of 2006:19 March 2008 [2008] FJHC 45.

[80] Further, I do not thank that the remarks by the Privy Council in Mills v. R (1995) 1 WLR 511 had authoritatively laid down a different proposition to the time tested 'settled hopeless expectation of imminent death' though in general the court had spoken of placing emphasis on probative value of the evidence, as seen by the following passage.

'But such a development would only be prudent in the light of a detailed analysis of the merits and demerits of such a course than was afforded by the argument in the present case. It is also unnecessary to embark on such a course in order to dispose of the present appeal since it is self – evident that the deceased's last words were admissible under another exception to the hearsay rule, namely the so – called res gestae rule'

[81] There are two issues to be considered in relation to this appeal at this stage on this topic.

(i) Did the Trial Judge adopt the correct procedure before admitting the so called dying declarations in evidence?

(ii) If not, is his decision to admit 'dying declarations' justified at least on the evidence?

[82] It appears from the case record that the defence had objected to the leading of the statements alleged to have been made by the deceased to three witnesses at the trial treating them as dying declarations. Unfortunately, both parties had then proposed to file written submissions on that issue for the Trial Judge to make an order. The Prosecution should instead have asked for a voir dire inquiry to satisfy the Judge that the statements of the deceased were indeed dying declarations as the burden was on the prosecution to prove beyond reasonable doubt the admissibility of those statements. In Fenkins (1869) LR 1 CCR 187 it was held that the onus of establishing the preliminary facts in relation to a dying declaration is on the party who seeks to admit such a declaration and the standard of proof to be met is beyond reasonable doubt. The Privy Council in Mills v R (1995) 1 WLR 511 had laid down that one of the requirements in order for a dying declaration to be admitted is to have some evidence illustrating the settled and hopeless expectation of death on the part of the deceased. The Trial Judge himself appears to have been unmindful that in Raj's case the trial judge had held a voir dire inquiry before admitting the dying declaration and that procedure had been approved by the Court of Appeal. Raj had been cited by the Trial Judge in his ruling admitting the deceased's three statements as dying declarations but not been mindful of the procedure followed therein.

[83] I am unable to comprehend as to how a trial judge could determine the admissibility of

an alleged dying declaration without hearing the evidence of a witness or witnesses who testify to having heard such a statement being made by the declarant and without affording an opportunity for the party opposing its admissibility to challenge the witness or witnesses by cross-examination. This exercise could only be done at 'a trial within a trial'. The Learned Judge had failed to do so. Therefore, I hold that the alleged dying declarations had been admitted as evidence without adhering to the legal procedure recognised judicially. This irregularity alone is sufficient to reject the admission of the dying declarations led at the trial.

[84] However, I shall go a step further and consider the evidence led at the trial to determine whether the statements allegedly made by the deceased could be reasonably regarded as dying declarations. If not, the Trial Judge was wrong to have treated them as dying declarations. In doing so, I shall employ the test of 'settled hopeless expectation of imminent death'

[85] Evidence revels that the deceased had removed the burnt cloths and changed to new garments after the fire on her was doused. She herself had called the father and a taxi. Jitendra Nath, the father hearing from the deceased that the Appellant had burnt her had advised her to go to the police and not to the hospital. He had reached the hospital only at 2.00 p.m. having closed his shop several hours later. His conduct does not suggest that the deceased was in such a state as to be facing imminent death.

[86] According to Suresh Pratap, the taxi driver, the deceased had walked up to the taxi from the house and had enough strength at the time when she made the alleged dying declaration. Despite the deceased having asked to be taken to hospital, he had taken her to the police post because 'she was not in a position to die'. Josephine Joytika to whom the deceased is said to have made the third 'dying declaration' had not spoken to her being in a serious condition inside the vehicle. Losena Vunidova had seen the deceased move around, looking for something and walked back to the house. She had under cross-examination said that she had seen the deceased running out of the house. Dr. Gounder had not given any evidence as to what the deceased's condition would have been soon after she suffered burn injuries. The deceased had not declared to anyone that she was facing death or in imminent danger of death.

[87] I do not find any evidence to suggest that the deceased had believed that she was at the point of death or was about to die or had entertained no hope of living when she allegedly made those statements to the three witnesses. She had not expressed even a sense of danger of death; nor any belief in the nearness of her death. Neither had the statements appear to have been made in extremity. There is nothing to reasonably infer that she had been under the impression that her death was impending, immediate or at least would ensue shortly. Nor is there any evidence to indicate that the deceased was conscious of her being in a dying state. These are the thresholds that the deceased must have reached before her statements could have been regarded as dying declarations. The absence of them are conspicuous.

[88] In the circumstances, I am unable to agree with the Trial Judge when he told the assessors that 'Obviously, she was under a settled hopeless expectation of death, when she made the above statements to her father, the taxi driver and Jotika (PW3)'. I hold that the statements alleged to have been made by the deceased to the three witnesses do not reach thresholds of being dying declarations. They do not meet the criteria set out in a number of judicial pronouncements and therefore they do not qualify to be admitted as dying declarations. Therefore, they had been wrongly admitted in evidence as dying declarations.

[89] Therefore, the Appellant is entitled to succeed on Ground 5 and 6 as well and the proviso to section 23(1) of the Court of Appeal Act should not to be applied in this situation as urged by the State.

[90] However, in my view, the same evidence namely the statements allegedly made by the deceased incriminating the Appellant may have been led under another exception to the hearsay rule which, of course, may at times overlap with dying declarations. The rule is Res Gestae. In Pollit v R (1991 – 92) 174 CLR 572 Brennan J. commented at pages 579 – 582

'A further exception to the hearsay rule admits evidence of certain statements made in the course of, or approximately contemporaneously with, a transaction that is the subject of the court's inquiry: the res gestae exception.

'Once it is accepted that the res gestae principle represents an exception to the hearsay rule and admits statements which may be used to prove the truth of the facts asserted therein, it is understandable that admissibility should be made to depend, inter alia, on the judge's satisfaction that the conditions in which the statement was made were such as "to exclude possibility of concoction or distortion". But, as Barwick CJ pointed out, non constat that any hearsay statement is admissible if the judge is so satisfied. The statement must be made in conditions "of approximately not exact contemporaneously" and the impossibility of concoction or distortion must arise from the "spontaneity or involvement in the event" by the maker of the statement.'

[91] Lord Wilberforce in Ratten v. R [1971] UKPC 23; [1972] A.C. 378 at 389 said

'The expression 'res gestae', like many other Latin phrases, is often used to cover situations insufficiently analysed in clear English terms. In the context of the law of evidence it may be used in at least three different ways:

1. When a situation of fact (e.g. a killing) is being considered, the question may arise when does the situation begin and when does it end. It may be arbitrary and artificial to confine the evidence to the firing of the gun or the insertion of the knife, without knowing, in a broader sense, what was happening. Thus in O'Leary v Regem [1946] HCA 44; (1946) 73 CLR 566 evidence was admitted of assaults, prior to a killing, committed by the accused during what was said to be a continuous orgy. As Dixon J said (at 577): 'Without evidence of what, during that time, was done by those men who took any significant part in the matter and specifically evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.'

2. The evidence may be concerned with spoken words as such (part from the truth of what they convey). The words are then themselves the res gestae or part of the res gestae, i.e. are the relevant facts or part of them.

3. A hearsay statement is made either by the victim of an attack or by a bystander -- indicating directly or indirectly the identity of the attacker. The admissibility of the statement is then said to depend on whether it was made as part of the res gestae. '

[92] Lord Wilberforce then reviewed a number of cases in England, in Scotland, in Australia and America and concluded that they

"show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such circumstances (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused."

[93] Ratten was applied in R v Andrews [1987] 1 All ER 513 where Lord Ackner inter alia said

' My Lords, may I therefore summarise the position which confronts the trial judge when faced in a criminal case with an application under the res gestae doctrine to admit evidence of statements, with a view to establishing the truth of some fact thus narrated, such evidence being truly categorised as "hearsay evidence":

1. The primary question which the judge must ask himself is – can the possibility of concoction or distortion be disregarded?

2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.

3. In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.

4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. ... The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.

5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement .... However, here again there may be special features that may give rise to the possibility of error. In such circumstances the trial judge must consider whether he can exclude the possibility of error.' (emphasis added)

[94] Therefore, even though the three statements of the deceased implicating the Appellant in her death have to be ruled out as dying declarations, in my view, they may still have been considered for admission in evidence as part of res gestae. However, the prosecution or the Trial Judge had not considered this position. The prosecution had categorically relied on the three 'dying declarations' to prove its case against the Appellant. The defence too had not had any opportunity to contest the case on the basis that the statements were going to be admitted in evidence as part of res gestae. The assessors also had not been asked to consider the case against the Appellant on that basis. In the circumstances, it is nothing but fair both to the prosecution and the defence that the case be fought on whether the deceased's statements are to be admitted in evidence within the res gestae rule.

[95] Considering the fact that, accordingly, the State has the option to decide to lead the statements allegedly made by the deceased implicating the Appellant under res gestae exception to hearsay evidence, I think the admissibility and probative value of those incriminating statements should be best left to be decided at a new trial. Therefore, although the appeal is allowed on several grounds of miscarriage of justice (vide section 23(1)(a) of the Court of Appeal Act) I conclude that a new trial against the Appellant would be the best course of action in the interest of justice. Hence, my decision to order a new trial.

[96] Since the counsel for the Appellant at the hearing informed this Court that the Appellant would not pursue the appeal against his sentence, I do not propose to deal with it. Consequently the appeal against the sentence should stand dismissed.

Orders of the Court are:

1. Appeal against conviction is allowed.

2. Conviction is quashed.

3. A new trial is ordered.

4. Appellant is remanded in custody to appear before the High Court on 13 December 2017 at 9.30am.
   

............................................................

Hon. Justice W. D. Calanchini

PRESIDENT, COURT OF APPEAL

............................................................
Hon. Justice S. Chandra
JUSTICE OF APPEAL

............................................................
Hon. Justice C. Prematilaka
JUSTICE OF APPEAL