Yang Xieng Jiong v State [2019] FJCA 17; AAU0077.2015 (7 March 2019)

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

CRIMINAL APPEAL NO.AAU 0077 of 2015

(High Court Criminal Case No. HAC 241 of 2013)

BETWEEN:

YANG XIENG JIONG
Appellant

AND:

THE STATE
Respondent

Coram : Prematilaka, JA

Fernando, JA

Nawana, JA

Counsel : Mr. T Lee for the Appellant

Mr. M. D. Korovou for the Respondent

Date of Hearing : 19 February 2019

Date of Judgment : 7 March 2019

JUDGMENT

Prematilaka, JA

[1] I agree with reasons and conclusions of Nawana, JA.

Fernando, JA
[2] I agree with the reasoning and conclusions of Nawana, JA.
Nawana, JA

INTRODUCTION

[3] This is an appeal by the appellant-Yang Xian Jiong (the appellant) against his conviction on a charge of murder punishable under Section 237 of the Crimes Act, 2009.

[4] The appellant stood charged for having committed the murder of Mr. Robert Fong alias Jan Qui Kuang on 08 April 2012. After trial, the assessors returned majority opinions finding the appellant guilty of the charge of murder, on 12 June 2015.

[5] The learned High Court Judge accepted the majority opinions of the assessors finding the appellant guilty of murder and rejected the opinion of the single assessor finding the appellant guilty of manslaughter.

[6] The learned High Court Judge, thereupon, convicted the appellant of the charge of murder and sentenced him to life imprisonment with an eighteen-year fixed minimum term of imprisonment before parole being considered.

EVIDENCE AT THE TRIAL

[7] The incident, as testified to at the trial by witness Josefa Rarawa, had taken place around 1.15 a.m. on 08 April 2012 in front of a night club at Victoria Parade, Suva, where the deceased, Mr. Robert Fong, was accosted by three men of Chinese origin as he (deceased-Mr Fong) was being accompanied to his vehicle nearby by the witness. Mr. Fong was, thereafter, seen bleeding in the neck after an attack by the three men. Mr. Fong was immediately taken to the hospital. The assailants had fled the scene soon after the attack. Mr Fong was later pronounced dead.

[8] The appellant was later identified by witness, Paula Wakanibua, at an identification parade as being a person who was seen on 08 April 2012 ((Pages 537-538 of the copy of the brief) without, however, reference to any specific act of offending of the appellant.

[9] As the evidence of Sgt. Kalusi Seru of Fiji Police, under cross-examination, revealed two other persons suspected for the attack on Mr. Fong had been arrested, investigated and prosecuted, which resulted in convictions against them by High Court in Suva, Fiji. The two accused were Qi and Hu. They are currently serving terms of imprisonment consequent to their convictions (Page 540 of the copy of the brief). The appellant, being the third suspect alleged to have been involved in the attack on the deceased culminating in Mr. Fong’s death, was arrested only on 30 May 2013, almost fourteen months after the incident, when he was waiting for a flight at Nadi International Airport, Fiji, to leave for China.

CAUTION-INTERVIEW STATEMENT

[10] The appellant, upon his arrest, was caution-interviewed by police over a period of seven days from 30 May-05 June 2013. The caution interview, insofar as the charge against the appellant was concerned, revealed the following:

‘... ...

Q145 Are you sure that the answer you gave to Q143 is true?

Ans That is true

Q146 what happened after that?

Ans. We were standing as forming a triangle. I was standing at the

corner of Traps Bar, Qi was sitting on the block of the footpath in front of the service station just beside Robert Fong vehicle and Hu was on the opposite side of the road.

Q147 Did you know the colour of Robert Fong’s vehicle?

Ans. I cannot remember.

Q148 Do you know Robert Fong the owner of the car?

Ans. No.

Q149 You state in your answer to Q146 you stated that you are standing forming a triangle what were you waiting for?

Ans. We were waiting for the person who we were going to kill.

Q150 Who was the said person you referred to?

Ans. I do not know the name.

Q151 I wish to inform that the person you are waiting for Robert Fong. Do you know that?

Ans. Yes

Q152 What happened whilst you are waiting at the place?

Ans. Whilst waiting there I saw the person Robert Fong went towards his car.

Q153 Who gave you the identity of the person you referred to?

Ans. Qi and Hu had signaled him to be the person.

Q154 What did you do when they (Qi and Hu) signaled to you that Robert Fong was walking towards his car?

Ans. They (Hu and Qi) came towards him and I followed them whereby we stabbed him.

Q155 what did you use to stab him?

Ans. Dagger

Q156 Who gave you the dagger to use?

Ans. Xi gave me the dagger.

Q157 What was the colour of the dagger?

Ans. Black handle with silver blade.

Q158 Which part of Robert Fong’s body did he stab?

Ans. His back (Shoulder)

Q159 How many times did you stab him?

Ans. About 2 to 3 times...

... ...’

(Highlighted for emphasis).

[11] The prosecution possessed only the above items of evidence relating to the alleged wrongful conduct of the appellant culminating in the criminal trial against the appellant in relation to the death of the deceased-Mr. Fong on 08 April 2012.

VOIR DIRE

[12] The caution-interview was challenged by the appellant at the trial. A voir dire was, thereupon, held from 01-02 June 2015 in order to consider the voluntariness of the statements made by the appellant in the course of the caution-interview.

[13] The learned trial judge, after consideration of the evidence at the voir dire, concluded that the statements given by the appellant at the caution-interview were voluntary and out of his own free will. The learned judge found no reason for the exclusion of the caution interview statements from evidence at the trial. The learned trial judge, however, noted in his order dated 02 June 2015 that the acceptance or refusal of the caution interview statements was a matter for the assessors to decide at the trial against the appellant.

[14] The learned trial judge’s legal reasoning for the admission of the caution interview was pronounced in terms of a written ruling on 12 June 2015, which is founded on the criteria laid down in Ganga Ram and Shiu Charan and Reginam [Criminal Appeal No 46 of 1983, Unreported]; Ibrahim v R (1941) AC 599; and, DPP v Ping Lin (1976) AC 574.

[15] The caution-interview statement, which appeared to have formed the substantive evidence against the appellant was marked as PE-1 at the trial (page 539 of the copy of the brief). Three knives, which were suspected to have been used in committing the offence, were said to have been uplifted from a compound on Nokonoko Road where ‘suspects’ were alleged to have stayed. The three knives were tendered collectively as PE-2.

MEDICAL EVIDENCE

[16] (i) Dr Ponnu Swamy Goundar, Associate Professor in Pathology, Fiji School of Medicine, Fiji National University, Fiji, was called to give evidence on the post-mortem examination, findings of which were produced in the report marked as PE-4 at the trial.

(ii) Under cross-examination, the professor sated that he had found fourteen cut injuries on the body of the deceased. According to the professor, Injury No (4) and (10) had penetrated the body; while Injury Nos (1) and (2) were cut injuries in the shoulder region, which did not cause the death of the deceased. The professor’s evidence was that Injury Nos (4) and (10) had caused the death as they had penetrated the body causing bilateral collapsed lungs and pleural hemorrhage. The Injury No (4) was explained as a deep cut on the posterior aspect of the left arm starting in the upper aspect of the axillary line measuring 7 cm- 1.5 cm at the widest point. The Injury No (10) was explained as a deep cut 3 cm from midline on posterior aspect of neck to the right measuring 3 cm-1.9 cm at the widest point. The professor was of opinion that the causes of death directly leading to the death were shock; bilateral collapsed lungs; pleural hemorrhage; and, the damage to blood vessels (Pages 178-180 and 548 of the copy of the brief).

[17] The case for the prosecution was closed with the principal evidence as summarized above. The appellant did not make an application on the basis of ‘a no case to answer’. Instead, upon being called upon, he testified on his own behalf and refuted the charge and alleged improprieties against those involved in the recording of his statement under caution. The appellant specifically stated that he had seen two of his friends stabbing the deceased on the day of the incident but denied his involvement in the attack. He said that he had answered Q 154-159 as he was beaten by police and denied confessing to the murder of Mr. Fong (Pages 550-553 of the copy of the brief).

[18] It was in light of the above items of evidence that the learned trial judge had convicted the appellant of the charge of murder and sentenced to a mandatory period of eighteen years on 30 June 2015.

GROUNDS OF APPEAL

[19] The appellant appealed against the conviction. The amended notice of appeal dated 18 January 2016 relied on four grounds of appeal. They are:

1. The learned High Court Judge erred in law and fact by failing to give reasons on why he failed to accept during the voir dire as well as the trial proper that the appellant’s confession had been obtained unfairly as a result of the following:
   
   • (i) The appellant was kept in custody for seven days under oppressive circumstances during the caution interview without any application by the State to extend the 48-hour allowable period;
     
   • (ii) The appellant’s interview was recorded in English, which was a language that the appellant could not read [.] [H]owever, the oppressive circumstances of his custody led him to sign something he did not understand
     
2. The learned trial judge’s directions on the elements of murder at paragraphs 11, 31 and 32 of his summing-up lacked fairness and objectivity when he used examples that fitted the prosecutor’s case.
   
3. The learned trial judge caused the trial to miscarry when he unfairly commented at paragraph 18 of the summing-up that the appellant had admitted the offence in the following manner:
   

Mr. Fong later rushed to hospital and he died at approximately 1.40 a.m. on 08 April 2012. A police investigation was carried-out. The two friends who were with the appellant were later arrested. They were tried and later imprisoned. The appellant was arrested on 30 May 2013 while awaiting a flight to China at Nadi Airport. He was caution-interviewed by police. In the interview, he admitted the offence. Later, he was taken to court and charged for the murder of Mr. Robert Fong. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was case for the case for the prosecution.

4. The learned trial judge caused the trial to miscarry when he commended at paragraph 29 of the summing-up that the appellant was aiding and abetting the commission of murder despite the appellant being the only person in the information.
   

[20] A single Justice of Appeal, in terms of his ruling dated 22 March 2016, granted leave on the basis that the appeal was arguable.

JURISDICTION OF THE COURT OF APPEAL

[21] I proceed to consider the appeal on the basis of the grounds urged by the appellant in the amended notice of appeal; and, on matters advanced by learned counsel in their submissions, both oral and written, at the hearing before the full court bearing in mind the scope of jurisdiction vested in this court in terms of Section 23 of the Court of Appeal Act in regard to an appeal. The Section provides:

23. (1) (a) The Court of Appeal, on any such appeal against conviction shall allow the appeal if they think that the verdict should be set-aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal; and, ...
    

Provided that the court may, notwithstanding that they are of the opinion that the point raised in the appeal against conviction or against acquittal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has occurred.

(2) Subject to the provisions of this Act, the Court of Appeal shall-

(a) If they allow an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered. Or if the interests of justice so require, order a new trial; and,
(b) ...

(3) ...

FIRST GROUND OF APPEAL

[22] The appellant, in his first ground of appeal, seeks to fault the learned trial judge for having accepted the caution interview statements on the basis of two matters as referred to above. The first matter related to an alleged existence of oppressive circumstances over a period of seven days without producing him before a Magistrate within a 48-hour period.

[23] I have considered the matter in relation to the first ground of appeal; and, the submissions advanced in support on behalf of the appellant. I propose to make following observations associated with the recording of the caution interview statement.

(i) The caution interview had been conducted over a period of seven days after affording opportunities, which appear to be fair and reasonable opportunities. These included intermittent intervals for the appellant to relax, refine and reflect on what he was being interviewed;

(ii) The appellant, on being asked at the interview, informed that he was conversant only in the Mandarin dialect of Chinese language and wished the presence of a translator. The appellant was accorded the facility of having Ms Rose Li to facilitate the translation of English into Mandarin and vice versa; and,

(iii) The appellant requested the opportunity of meeting with an official from the Chinese Embassy in Fiji. Accordingly, Mr. Hao Yong Wang and Mr. Cheng Wenshan of the Chinese Embassy, Suva, Fiji, visited the appellant on the second day of the interview and had conversed with him for nearly one and half hours before the interview proceeded further.

[24] Mr. Thomson Lee, learned counsel for the appellant, strenuously argued that that there was a breach of the provision in Article 13 (1) (f) of the Constitution of the Republic of Fiji in terms of which an arrested person had to be produced before a Magistrate within a period not later than 48 hours from the date of arrest.

[25] Breaching a constitutional provision undoubtedly will result in adverse consequences rendering, perhaps, a procedure adopted in such breach a nullity in appropriate circumstances. But, the issue that the court confronts in this instance is the very absence of such a constitutional provision as at the date and the time of the arrest of the appellant and during his detention from 30 May-05 June 2013 as the Constitution containing that provision was brought into force in September 2013.

[26] In Lesi v State; CAV 0016.2018 (01 November 2018); [2018] FJSC 23; Keith J., dealing with an identical complaint of being non-compliant with Article 13 (1) (f) of the Constitution, 2013, in regard to the need to produce a suspect before a Magistrate not later than 48 hours, stated that:

The new constitution came into force in 2013 well after the arrest of [suspects]. ... There was, therefore, no provision in force at the time of the kind relied on by [the suspects]. Their protection from arbitrary detention in police custody was provided by the common law and the Judges’ Rules. Neither of them imposed a specific time limit of the kind in the Constitution.

The 48-hour allowable period, which was introduced by the Constitution of the Republic of Fiji, was brought into force only in September 2013, much after the caution interview was recorded from the appellant. There was no such mandatory requirement where a suspect had to be produced before the Magistrate.

[27] Insofar as the appellant is concerned, I am unable to subscribe to the view that the seven-day period of detention for the purpose of caution-interviewing could not be construed as having resulted in oppressive circumstances without any supportive evidence to that effect. On the contrary, I am of opinion that the period in question could have been reasonably required for the investigators and the interviewers to meaningfully question the appellant in relation to an incident that took place nearly fourteen months before.

[28] This period, on an examination of the record, does not appear to have occasioned breaches of common law rules or judges’ rules concerning personal freedoms by oppression at the hands of law enforcement agencies in Fiji. In the circumstances, having been guided by the Keith J’s reasoning, I take the view that there was no need, without any positive rule to that effect, to conform to a need of producing the appellant before a Magistrate within 48 hours from the date of arrest. Hence, I find no basis to hold that the first ground of appeal on the basis of the matter raised above, supports the appellant. It is, accordingly, rejected.

[29] The second matter, in support of the 1^st ground of appeal, related to the English language being used in conducting the caution interview. The appellant claimed that he could not read or understand English; but, signed the statement as compelled by oppressive circumstances.

[30] I have already ruled that I was not convinced as to the existence of oppressive circumstances during the interview. Be that as it may, encountering language barriers is a common phenomenon that could be seen globally whenever a crime is reported to have been committed by a non-national in a country, who is obviously alien to the language as well as to the national laws of that country. Yet, the assumption of jurisdiction over a crime committed within a country under its criminal law and procedure cannot be negated or frustrated. But, there exists the inviolable need to ensure the course of fair interrogation, investigation, and a fair trial safeguarding the rights of the non-national, who is suspected of the crime.

[31] It is, however, inherently impossible to create a homely environment for a non-national to be at an absolute ease in the processes involving criminal justice mechanisms. Nevertheless, difficulties could and should be mitigated, as many countries do, by affording the irreducible minimum of facilities such as the providing of translators; access to legal counsel; and, eventually the opportunity of facing a fair trial.

[32] I have considered the second matter urged in support of the first ground of appeal by the appellant bearing in mind the realistic background as adverted to above. I find that the appellant had been afforded with the facility of having an interpreter in the Mandarin dialect of Chinese language to facilitate the interview.

[33] I find that the questions had been put in such a way that could be comprehended by the appellant and that the appellant, had, in fact, answered the questions in a cogent and cohesive manner leaving no room to conclude that the interview process had been impeded by linguistic obstacles. The manner and the sequence of questioning seem to have been plain and simple evoking rational answers, which suggests that the process of interview had been comprehensible. Timely adjournments were given at regular intervals for the appellant to relax, refine and think over. Caution interview, in the circumstances, does not appear to have been thrust upon the appellant taking advantage of the lack of competence of the appellant in English.

[34] For these reasons, I find that there is no basis to conclude that the caution interview statement had been affected by the linguistic incapacity of the appellant. I reject the second matter as being without basis to support a ground of appeal.

[35] The above two matters were not specifically raised by the appellant in terms of his grounds of objection dated 24 March 2015 against the caution interview statement being admitted in evidence. However, the learned trial judge, having had the benefit of seeing and hearing the witnesses in court has concluded, for the reasons briefly explained in paragraph 14 of this judgment, that the caution interview statement was not involuntary; and, that there were no reasons to hold that the circumstances had existed to exclude it on the ground of unfairness. I agree with the learned trial judge.

[36] In the circumstances, the first ground of appeal fails.

SECOND GROUND OF APPEAL

[37] The appellant’s second ground of appeal is based on the directions by the learned trial judge on the constituent elements of the offence of murder as contained in Section 237 of the Crimes Act, 2009. Section 237 of the Crimes Act reads as follows:

A person commits an indictable offence if —

(a) the person engages in conduct; and

(b) the conduct causes the death of another person; and

(c) the first-mentioned person intends to cause, or is reckless as to causing the death of the other person by the conduct.

[38] The learned trial judge, in paragraph 11 of his summing-up, said that:

‘On the second element of murder, the willful act must cause the death of the deceased. This simply meant that the accused’s willful act substantially contributed to the death of the deceased. The accused’s willful act must be substantial contributor to the death of the deceased’.

[39] Then, the learned trial judge went on to explain the element by way of illustrations and said that:

Likewise, when A stabs B on his shoulder and neck causing serious internal injuries resulting in B’s death, A’s stab (willful act) set in motion a chain of events that led to B’s death. (A’s wilful act causes B’s death) and as such was a substantial cause of B’s death”.

[40] Learned counsel’s complaint is that the learned trial judge had commented robustly on all issues which favoured the prosecution case at the expense of a fair trial to the appellant. Learned counsel relied on Tamaibeka and Katonivualiku v the State; (Unreported Cr. App. No. AAU0015 of 1997S; 08 January 1999), which was cited in the case of Ram v State; AAU0087.2010 (02 October 2015); [2015] FJCA 131, where the Fiji Court of Appeal had held that:

A judge is entitled to comment robustly on either 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.

[41] The above conclusions of the Court of Appeal show important and binding guidelines as to how evidence should be summed-up in an objective manner to ensure fair and reasonable directions to the assessors to assess the case before them without letting them feel that one case is stronger than the other; or, prejudicing either party’s case.

[42] It appears that the learned counsel’s complaint, in this case, stems from the learned trial judge’s choice of one of the illustrations as noted above that resembled the facts of the case had before them. I am of the view that a judge’s choice of an illustration closer to the facts of the case cannot be faulted if the illustration had, in fact, confined to the exact facts of the case in an appropriate manner. This, in my view, cannot be resorted to indiscriminately. In this regard, the case of Balekivuya v State; AAU0081.2011 (26 February 2016); [2016] FJCA 16, relied upon by the learned counsel for the respondent, is a case in point where it was held that:

Although the practice of using examples that too closely resemble the facts, upon which the prosecution relies is not appropriate, in this case there was nothing added to the prosecution case. There was direct evidence from two witnesses, who had survived the assault as to how Krishneel had met his death. In my judgment, the appellants were not prejudiced by the use of the similar examples in this case. The learned trial judge as the ultimate trier of fact and law had no hesitation in indicating his agreement with the opinions of the assessors after reviewing the evidence. There was no miscarriage of justice and this ground does not succeed.

(Underlined for emphasis)

[43] The case before the assessors was one where there was not even a single eye witness to testify in regard to a wrongful act of the appellant. Moreover, the case did not rest on a strand of circumstances that enabled the drawing of inferences against the appellant. Instead, the only item of evidence, upon which the case was founded by the state, was the caution interview statement that contained certain admissions attributable to the wrongful conduct of the appellant. In such a situation, I am of the view that the restructuring of the wrongful act with reference to specific act or acts of the appellant under the pretext of an illustration, which resembled the crime scene, could eliminate fairness, reasonableness and objectivity in the summing-up of the learned trial judge. Instead, the assessors were more likely to have been unreasonably prejudiced in the absence of any direct evidence independent of the confessional statement of the appellant. Furthermore, such a venture by the learned trial judge is, in my view, tainted with the inefficacy of bringing into the fore the same evidence, being the confessional statement in the caution interview, twice before the assessors: one in the form of caution interview itself; and, the other in the form of an illustration by the learned judge.

[44] It would be appropriate to delve into the matter further after considering the complaints of the appellant made against the contents of paragraphs 31 and 32 of the summing up of the learned trial judge. The contents of the summing-up are to the following effect:

31. On the third element of murder, as described in paragraphs 9 (iii) (a), 9 (iii) (b), 12 and 13 hereof, what inferences of fact do you make after considering his alleged police caution interview statements? For a start, if you stabbed someone about the arm pit, or at the back of the neck with the three knives shown in the courtroom [Prosecution Exhibit No2] obviously you intended to cause the deceased’ s death. It is common knowledge that important blood vessels and organs are in the vicinity of the armpit and the back of the neck. It must be inferred that that if you stab someone in those areas using the knives submitted as Prosecution Exhibit No 2, you obviously intended to cause the person’s death. Your intentions are inferred from your actions.
    
32. Alternatively, it must be inferred that a person is aware of a substantial risk that a person may die, if he stabs the person in the arm pit or at the back of the neck. It would be unjustifiable to take the risk of stabbing the person in the arm pit or back of the neck, because the person may die. In the accused’s police caution interview statement, on its face, it would appear that the accused was reckless as to causing the deceased’s death.
    

[45] The relevant paragraphs, as referred to above, had been meant to explain the imputation of liability by means of intention in consequence of a willful act, being the alleged act of stabbing by the appellant along with two others, in the instant case, in light only of the caution interview statement.

[46] These directions, in my view, pointedly direct the assessors to infer culpability of the appellant depriving them of their legitimate task of assessing the facts objectively independent of the judge’s intervention on the facts. This deprivation, in my opinion, cannot be cured by the directions given by the learned judge at the commencement of his summing-up where he emphasized that any direction on a question of fact by the learned trial judge should be dismissed by them. Instead, the directions referred to above had the prejudicial effects on the assessors against the appellant.

[47] Prejudicial effects arose especially in view of the fact that the learned trial judge had taken the case against the appellant out of its evidential and liability parameters when he referred to the facts of [stabbing] someone about the arm pit, or at the back of the neck with the three knives shown in the courtroom [Prosecution Exhibit No2], when there was, in fact, no evidence to that effect in the caution interview statement. The learned trial judge repeated the same error when he summed-up in paragraph 32 stating ‘... if he [stabbed] the person in the arm pit or at the back of the neck...’.

[48] The involvement of the ‘three knives’, as referred to by the learned judge, inevitably brought the other two assailants into the trial against the appellant. Considering the multiple injuries in an around the neck of the deceased-appellant, it was unclear as to how the learned judge sought to impute criminal liability for the death of the deceased only on the appellant without having proper medical evidence on the issue as the appellant’s version was that he had only stabbed in the shoulder of the deceased twice or thrice.

[49] Notwithstanding the above, the learned trial judge had not directed himself and the assessors in regard to the law on joint offenders on the basis of Section 46; and, aiding and abetting on the basis of Section 45 of the Crimes Act, 2009, in order to consider the case against the appellant separately from that of the other two assailants.

[50] When I consider the foregoing matters, I am inclined to take the view that the learned trial judge had lacked fairness and objectivity in his summing-up as borne-out by contents in paragraphs 11, 31 and 32; and, made errors of law by making room for the assessors to infer on impermissible matters outside the scope of the information filed against the appellant.

[51] Therefore, I conclude that the second ground of appeal is entitled to succeed.

[52] The appellant’s third ground of appeal was premised on a challenge to the contents of paragraph 18 of the summing-up. The appellant submitted that the specific reference to the fact that the appellant admitted the offence in the interview, caused the trial to miscarry. Paragraph 18 of the summing-up stated:

Mr Fong was later rushed to the hospital, and he died at approximately 1.40 a.m. on 08 April 2012. A police investigation was carried out. The two friends, who were with the accused at the time were later arrested. They were tried and later imprisoned. The accused at the time were [sic] later arrested on 30 May 2013, while awaiting a flight to China at Nadi Airport. He was caution interviewed by police. In the interview, he admitted the offence. Later he was taken to court and charged for the murder of Mr. Robert Fong. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

(Underlined for emphasis)

[53] Learned counsel for the appellant submitted that the learned trial judge in making the above statements to the assessors had caused the trial to miscarry for two fundamental reasons:

Firstly, by informing the assessors that the accused’s accomplices had been tried, convicted and imprisoned; and,

Secondly, by stating that the appellant had admitted the offence in the caution interview.

[54] It was not correct for the learned judge to have said that the appellant had admitted the ‘offence’ in the caution interview. An examination of the caution interview statement, instead, shows that he had admitted only certain matters of conduct on his part, which alone could be attributed to him, if and only if, the assessors had decided to accept the caution interview being fair and voluntary.

[55] The question, whether any conduct on the part of the appellant had amounted to an offence that the appellant had been charged with or any other lesser offence, was entirely a matter for the assessors to decide. This, in my view, had amounted to misinterpretation of the sole evidence had against the appellant resulting in a clear misdirection in the mind of the learned trial judge on the facts and the law causing prejudice to the appellant.

[56] Moreover, the learned trial judge had misdirected himself when he made reference to the other persons who had been found guilty previously and sentenced with imprisonment in connection with the incident. The information founded against the appellant was on the basis that the appellant had committed the offence by himself alone. Therefore, the learned judge was not, in my view, permitted to have brought the conduct of the other two persons and their present fate in imprisonment before the assessors as such a venture by the learned judge could have the effect of prejudicing the appellant as it was outside the scope of the trial against the appellant.

[57] Learned counsel for the appellant submitted that the learned trial judge who tried the appellant had also tried the other two persons; convicted them; and, sentenced them to a mandatory period of seventeen years on 10 May 2013 on their own pleas of guilt (State v Yang Xiu Qi [2013] HAC 139 of 2012S; 10 May 2013]. It was the submission of the learned counsel that the learned trial judge could have been, therefore, instinctly involved with the facts of the incident when he referred to the matters connecting the appellant with others, even though the appellant had not been charged on that basis. Incidentally, the charge against those two others, too, had been against them only without reference to a third being involved in the offence.

[58] Learned counsel, in the circumstances, complained that the learned trial judge should have brought the matter to the notice of the appellant to verify whether there was any objection against the learned judge presiding the case against the appellant. It was further contended by the learned counsel, in his written submissions dated 18 February 2019, that the decision of the learned judge to proceed with the case with the full set of facts at the back of his mind constituted a conflict of interest and resulted in a miscarriage of justice.

[59] Having regard to the contents of the summing-up in its entirety, some of which are already excerpted for the purposes of this judgment, I am persuaded to accept the contention of the learned counsel as being valid. In my considered opinion, the learned trial judge should have disclosed his participation at the proceedings against the two other accused connected to the incident and recused himself from hearing the case to ensure the expected objectivity in the trial against the appellant. I observe that the learned state counsel, too, was under a duty to have brought this matter to the notice of the learned judge as the fact of same judge hearing the two cases was obviously within his knowledge. In my opinion, the learned state counsel, too, had been at remiss.

[60] In the circumstances, I find merit in the third ground in support of the appeal of the appellant. It is entitled to succeed.

FOURTH GROUND OF APPEAL

[61] The appellant’s fourth ground of appeal arises from a reference made by the learned trial judge in paragraph 29 of the summing-up to the effect that the appellant was aiding and abetting the commission of murder despite the appellant being the only person in the information.

[62] The complaint of the learned counsel for the appellant is that the impugned reference, too, had contributed to miscarry the trial as the learned trial judge had made reference to the fact that the appellant had aided and abetted the other two assailants when the information, as pointed-out above, had been served on the appellant on the basis that the appellant and the appellant alone had committed the murder of Mr Fong on 08 April 2012.

[63] The impugned paragraph 29 of the summing-up is to the following effect:

On its face, questions 154 and 159, if accepted by you, as assessors and judges of facts. Would satisfy the first element of murder, as explained in paragraphs 9(i) and 10 hereof. It would constitute the accused doing a willful act, that is, stabbing the deceased. The fact that he did so with others, as described in question 154 is immaterial. He was aiding and abetting the commission of murder’, and was liable as the other others who were assisting him.

(Underlined for emphasis)

[64] The appellant was charged on the basis of the information dated 13 June 2013 of the Director of Public Prosecutions (DPP) as if the offence of murder of Mr. Robert Fong, contrary to Section 237 of the Crimes Act, was committed by the appellant and the appellant alone. This information, which was served on the appellant, upon which the case was conducted by the state, was substantially and materially different to what was filed before the Magistrate on 05 June 2013 where it had been alleged that the offence had been committed with others (Pages 513 and 561 of the copy of the brief).

[65] The legal effect of this change, which I have no reason to doubt as having been made by the DPP consciously, is that it transformed the case based on joint liability to a case based on individual liability.

[66] Learned counsel for the state, conceded at the hearing that the state had run its case against the appellant as if the offence of murder had been committed on Mr Fong by the appellant alone as founded on the information dated 13 June 2013. Mr Korovou, however, submitted that the prosecuting counsel had, in his opening statement, referred to the fact of group offending in the company of two others. This was how the learned prosecuting counsel had opened the case:

(i) the accused and two others planned to kill the deceased; and,

(ii) the accused and his friends attacked the deceased and fled.

(page 535 of the copy of the record)

[67] The appellant was entitled to know the basis upon which the case against him had been presented by the state; and, that basis had not been anything else other than on the basis of the individual criminal liability as presented by the information by the DPP. This cannot be changed by making an opening statement on a totally contrary line and bring in a completely different case, which would certainly have entailed the involvement of different legal principles. This, in my view, is not permissible as it is against the fundamental rules of criminal procedure. The issue is made clear in view of the mandatory provisions of Section 58 of the Criminal Procedure Act, which states:

Every charge or information shall contain-

(a) A statement of the specific offence or offences with which the accused person is charged; and,
(b) Such particulars as are necessary for giving reasonable information as to the nature of the offence charged.

[68] The purpose of the charge is to ensure that the accused person knows the offence with which he or she is charged (Per Goundar J. in Kamlesh Lata Arun v State [2009] HAA 52-55/08L 23 October 2009.

[69] This court, in the case of Lal v State; AAU 154.2014; [2018] FJCA 147 (04 October 2018) adopted the ruling of the Supreme Court of Canada in H. M the Queen v N. H. Rooke and R. C. De Vries; [1990] 1990 CanLII 1131 (SCC) Morozuk v Th v The Queen; 1986 CanLII 72 (SCC), [ 1 S.C.R. 31, whichwhich held th was a fundamentancitanciple of criminal law that the offence, as particularized ized in the charge, must be proved; and, permitting the Crown to prove somer of characterized byed by different particulars would be to unto undermine the purpose of providing particulars, which is to permit the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial.

[70] In the circumstances, I conclude that the prosecuting state counsel is not empowered to conduct the case totally on a different basis by making an opening statement, which is manifestly different to the information presented to court and served on an accused person by the DPP without an amendment to the information, if such amendment is warranted. I am unable to agree with the submission of the learned counsel for the state that the prosecuting counsel’s opening statement has had the effect of giving sufficient notice of the basis of charge to the appellant.

[71] In any event, there was only the opening statement of the learned prosecuting counsel, which had the potential effect of changing the direction of the case against the appellant; but, no efforts were taken to advance the case in that direction by advising the court appropriately on applicable legal issues. Nor were there any directions by the learned trial judge to the assessors on such issues. Instead, irrelevant evidence had been relied upon outside the scope of the information of the DPP causing prejudice to the appellant.

[72] In the circumstances, I find merit in the fourth ground of appeal. It is entitled to succeed.

CONCLUSIONS

[73] The case against the appellant undoubtedly got compounded in view of the separation of trials. The case, therefore, had to be meticulously presented to demarcate the individual criminal liability from the joint criminal liability in order to determine where the appellant’s case actually fitted in.

[74] Absence of the information on the basis of joint criminal responsibility, as envisaged by the legal principle of joint enterprise under Section 46 of the Crimes Act, compounded the matter further.

[75] Medical evidence played an important role in the process especially in the context of deciding on the specific intent of the appellant in regard to the causation of injuries.

[76] Upon an examination of the evidence and the contents of the summing up, I am unable to conclude that the trial has had the receipt of essential evidential input and the directions of law by the learned judge. As a result, the assessors as well as the learned trial judge could not arrive at the right decision as regards the criminal liability of the appellant in pursuance of the wrongful acts revealed in the caution interview statement.

[77] When all the matters, briefly discussed above, are taken into account, I am of the view that there had been a mistrial-a trial vitiated by fundamental defects.

[78] For the reasons set-out above, I would uphold the grounds of appeal urged in (2), (3) and (4) of the notice of appeal of the appellant. I, accordingly, allow the appeal and quash the conviction.

[79] Acting in terms of Section 23 (2) (a) of the Court of Appeal Act, I would order a new trial against the appellant.

[80] Learned counsel urged many other grounds against the validity of the caution interview statement of the appellant marked PE-1 at the trial. I would refrain from making any pronouncement on the issue other than the observations made in the relevant paragraphs on the two peripheral matters, as urged on behalf of the appellant, concerning PE-1in the first ground of appeal. I leave it open for the appellant to raise any objection pertaining to the voluntariness; truthfulness; or, any other substantive matter in relation to the caution interview statement in the course of the new trial, if he is advised to do so, if there be one.

The Orders of the Court are:

1. Appeal allowed.
2. Conviction quashed.
3. New trial ordered.
4. The Appellant is remanded in custody and is to appear before the High Court within 10 days from the date of this Judgment.

Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL

Hon. Mr. Justice A. Fernando

JUSTICE OF APPEAL

Hon. Mr. Justice P. Nawana

JUSTICE OF APPEAL