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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[ON APPEAL FROM THE HIGH COURT]
Criminal Appeal No. AAU 069 of 2013
(High Court Case No. HAC 032 of 2010)
BETWEEN:
THE STATE
Appellant
AND:
KARIM RAHMAT ALI KHAN
Respondent
Coram : Gamalath, JA
Prematilaka, JA
Bandara, JA
Counsel : Ms. P. Madanavosa for the Appellant
Mr. I. Khan for the Respondent
Criminal Appeal No. AAU 079 of 2013
(High Court Case No. HAC 032 of 2010)
BETWEEN:
KARIM RAHMAT ALI KHAN
Appellant
AND:
THE STATE
Respondent
Coram: Gamalath, JA
Prematilaka, JA
Bandara, JA
Counsel: Mr. I. Khan for the Appellant
Ms. P. Madanavosa for the Respondent
Date of Hearing : 15 November 2019
Date of Judgment : 28 November 2019
JUDGMENT
Gamalath, JA
[1] I have read in draft the judgment of Bandara, JA and I agree with his conclusions.
Prematilaka, JA
[2] I have read in draft the judgment of Bandara, JA and agree with the orders proposed.
Bandara, JA
[3] There are two appeals before this Court emanating from the same case. The first is an appeal against the conviction by the appellant. The second is an appeal by the State against an order for costs made against the Prosecution during the trial proceedings in the High Court. Both appeals were heard and would be decided together. Firstly, the Appeal by the Appellant will be considered.
Appeal by the Appellant
[4] The appellant who was a Juvenile was charged with one count of manslaughter contrary to section 207 (1) (2) (c) of the Crimes Act No. 44 of 2009 in the High Court. Upon the Appellant pleading not guilty to the charge the matter proceeded to trial.
[5] After a full trial the Assessors unanimously expressed an opinion that the Juvenile Appellant is guilty and the Court also concurred with the opinion of the Assessors.
[6] The High Court had the finding of guilty recorded against the Appellant in compliance with the provision in Section 237 (1) – (3) of the Criminal Procedure Act 2009 and Section 19 of the Juveniles Act Cap. 56.
[7] The evidence led at the trial clearly indicated that the Appellant had shot and killed Mohammed Khubayb Khan, his six year old cousin.
[8] After finding the Appellant guilty for committing the offence of manslaughter the Learned High Court Judge had acted in terms of Section 32 (1) (c) and 34 (1) of the Juvenile’s Act and ordered Mohammed Ferad Khan, the father of the juvenile offender a cost of $2500 to be paid to Court.
[9] Further in terms of Section 32 (1) (a) and Section 34 (2) of the Juvenile’s Act the High Court ordered the mother and the father of the juvenile to enter into a Bond of $5000 each to assure the good behavior of the juvenile offender for the next 7 years until the juvenile crosses the threshold of a juvenile.
[10] The Appellant had filed a timely application for leave to appeal against the order of the High Court on 8 grounds. Justice Goundar in his ruling dated 1st December 2015 had granted leave to appeal on the basis that the State had conceded to one of the grounds as the full record was unavailable, on all 8 grounds.
Facts of the case in brief
[11] It is common ground that the appellant was 10 years and 7 months old at the time of the incident. Witness Nabil Khan who was 14 years old at the time of the incident was related to both the Appellant and the deceased as a cousin. He had gone to the deceased’s father’s house around 5pm and started playing a game called ‘Tag’ with the deceased child and the Appellant child. When the witness was about to play tag with the deceased child giving his hand to touch he heard a big boom and fallen down. He was shocked for a moment, then he raised his head, stood up and saw the Appellant holding a gun.
[12] Witness had seen a movement of the gun either upwards or downwards when it was in the hands of the appellant. The witness identified the gun in Court as a one similar to the one held by the Appellant at the time of the incident.
[13] Regarding the incident witness further stated; “I saw Karim, he was holding the gun. I didn’t see where Kyubayb was at that time. But at the time I was falling, I saw him running and falling on the ground. Faizal came and tried to pick him up but didn’t talk.”
[14] Kyubayb was taken to the hospital in Rizwan’s vehicle. Witness was also injured in the course of the incident. Witness had categorically stated that, “I saw Karim clearly with a gun after I fell.”
[15] The investigating officer had seen a shotgun, an empty cartridge and a ‘bullet case’, at the scene of the crime.
[16] An expert of handling firearms, Inia Daunikama had been called to give evidence on behalf of the prosecution. He had been in the military service and overseas military missions for over 16 years and claimed that he was well conversant with firearms. He has given his expert opinion of the matter in the following categorical terms.
“My opinion is, after looking at the injuries of the deceased this is not an accidental shooting. If it was accidental pellets must have gone down. This is an aimed shot.”
[17] The witness had further told Court that a type of cartridge which was produced in Court contained 100 small pellets, and soon after the pellets leave the barrel, the gun will move a little upwards.
[18] This witness’s evidence completely excludes the possibility of the incident of shooting in question being an accident. Witness Aisea Livalivalagi had testified stating how the Appellant had been carelessly handling the gun shortly prior to the incident.
“After about 2 minutes I saw the child coming out of the vehicle holding the gun. He was playing with the gun. He came towards me. He called me ‘Wise’. I saw him reaching his pocket and he pulled a bullet in front of me he told me, “This is how you load a gun.” He was showing me how to use a gun and pointed to me. I said “don’t” and pushed away the gun. I told him to put the gun back in the vehicle”.
“.....After 3-4 minutes I heard the gun exploding. They first thought only Khubayb was injured. But Nabir was also injured...... I saw the boy with the gun after the incident. He said “slap me Wise. It is all my fault.”
Only one question had been asked from this witness in the cross-examination.
Q: Did you discuss this case with any police officers?
A: No.
[19] It is common ground that the death of the deceased was caused due to gunshot injuries. The doctor had observed 21 injuries on his body. Accused had not given evidence nor had any evidence adduced on his behalf.
[20] However at the end of the prosecution case an important admission had been made by the defence in the following terms. (Page 418 of the proceedings.)
Defence: “What we say is this is an accident.”
After the pronouncement of the sentence the defence counsel had stated,
“I appreciate the sentence. The cost can be paid today.”
[21] At that point the State had indicated that they did not intend to appeal against the sentence. One wonders why an appeal has been preferred now when everything had ended well to the satisfaction of both parties.
Now I turn to consider the 8 grounds of appeal advanced on behalf of the appellant.
Appeal Ground 1
[22] That the Learned Honorable Justice Madigan erred in law and in fact in deciding that the Juvenile Appellant’s case be heard
at the High Court contrary to Juvenile’s Act whereby the juvenile Appellant ought to have been tried in the Juvenile’s
Court.
[23] In terms of Section 21(1) of the Juvenile’s Act.
“Where a juvenile is brought before a juvenile court for any offence other than murder or attempted murder the case should finally be disposed of in said court, provided that where the court is not presided over by a Resident Magistrate and the Court wishes to impose a term of imprisonment then the case must be remitted to a Court presided over by a Resident Magistrate.”
[24] However Section 239 of the Crimes Act 2009 clearly stipulates that manslaughter is an indictable offence. An indictable offence is one which according to the Crimes Act must be tried solely by the High Court.
Manslaughter
239 – A person commits an indictable offence if
(a) The person engages in conduct; and
(b) The conduct causes death by another person; and
(c) The first mentioned person
- (i) Intends that the conduct will cause serious harm; or
- (ii) Is reckless as to a risk that the conduct will cause serious harm to the other person.
Pending imprisonment for 25 years.
Therefore Hon. Justice Madigan had not erred in law and in fact in deciding that the Juvenile Appellant’s case be heard at the High Court.
Appeal Ground 2
[25] That the Learned Honorable Justice Bandara erred in law and in fact in not holding /finding beyond reasonable doubt that the Juvenile Appellant was criminally responsible for an act or omission and further at the time of doing the act or omission Juvenile Appellant had capacity to know that he ought not to do the act or make the omission by virtue of Section 29 (2) of the Juveniles Act Cap 56.
[26] Section 29 (2) of the Juveniles Act states that:-
“A person of or over the age of ten (10) and under the age of twelve (12) years is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission, he had capacity to know that he ought not to do the act or make the omission”.
[27] Accordingly, the Juvenile person only be criminally liable if it is proven beyond reasonable doubt that he had the capacity to know that he ought not to do the act during the commission of the act.
[28] Whether or not the Juvenile Appellant had the capacity to know that he ought not to do the act during the commission of the act was a question of fact the assessors had to properly decide upon the evidence led at the trial.
[29] In the instant case, the assessors had held by their unanimous opinion that the Appellant did have the capacity to have known that he ought not to have done the act. There was ample evidence led at the trial to substantiate their decision and the learned High Court Judge had rightly accepted the opinion of the Assessors in finding that the Juvenile Appellant was criminally responsible. This ground of appeal has no merits.
Appeal Ground 3
“That the learned Honorable Bandara erred in law and in fact in not holding/finding that the Juvenile Appellant was criminally responsible for an offence if the Juvenile Appellant knew that his conduct was wrong by virtue of Section 27(1) of the Criminal Procedure Decree.”
[30] The above ground of appeal is without substance since witness, Inia, as discussed earlier
had categorically stated:-
“...that this was not an accident but an aimed shot.”
The following statement made at the caution interview by the appellant is relevant in this regard.
Caution Interview – Questions and Answer to question 73 recorded on 27 January 2013;
Q : Do you know about gun?
A : Yes, we are taught in school about gun and its safety.
[31] The above answer shows that the Appellant who was a Class 5 student studying in the USA had been taught about gun and their safety.
[32] After the shooting took place, the Appellant’s remarks made to witness, Aisea were; “slap me Wise, it is all my fault”, and the previous remark to the witness, Aisea; “this is how you load a gun”. The Appellant had showed him how to use a gun. And further he had pointed the gun at the witness. All these factors showed beyond reasonable doubt the juvenile Appellant knew that his conduct was wrong, and hence the learned High Court Judge’s finding that the Appellant was criminally responsible for an offence, and that the Appellant knew that his conduct was wrong, is correct and the Appellant’s complaint is without merits.
[33] Moreover in his summing up the learned trial Judge had given the following directions to the assessors on how to assess whether the Juvenile was criminally responsible. (Page 13 part 7(11) of the Summing Up).
“As we all are aware, the accused was 10 years and 7 months old at the time of the incident. The prosecution has to prove beyond reasonable doubt that the Accused had the knowledge and the capacity to understand his conduct of firing the gun was wrong. If you are of the view that he did not have such knowledge and capacity to understand that his conduct was right or wrong due to him being a child just passed 10 years old, mater ends there”.
[34] The learned Trial Judge had directed himself on the same at paragraph 4 of the judgment.
“I direct myself in accordance with the Summing Up delivered to the Assessors. Having considered the legal and factual background as outlined in the summing up I conclude that the unanimous verdict of the assessors is not perverse.”
[35] Section 27 of the Crimes Decree No. 44 of 2009 states that:-
(1) A child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.
(2) The question whether a child knows that his or her conduct is wrong is one of fact the burden of proof is on the prosecution.
What is important to emphasize here is the fact that whether a child knows that his conduct is wrong is a question of fact to be decided having regard to the evidence.
Grounds of Appeal 4 and 5
4. That the Learned Trial Judge erred in law and in fact in not analyzing all the facts before him before he made a decision that the Juvenile Appellant was guilty as charged on the charge of manslaughter. Such error of the Learned Trial Judge in law by failing to make an independent assessment of the evidence, before affirming a verdict which was unsafe, unsatisfactory and unsupported by evidence, giving rise to a grave miscarriage of justice.
5. That the Learned Trial Judge’s failure to evaluate the evidence prior to returning a verdict of guilty as charged, and the failure to the Learned Trial Judge to independently assess the evidence before confirming the said verdict, has given rise to a grave and substantial miscarriage of justice.
[36] Grounds of appeal 4 and 5 could be addressed together since both grounds revolved around the issue whether the learned trial Judge failed to independently assess the evidence before coming to a verdict of guilty.
[37] It is well settled law that at the end of the case the assessors should give the judge their opinion. The judge is not bound by the assessors’ opinion but it usually assists the judge to make a decision. The assessors only make decisions on facts not on the law which is solely the authority of the judge.
[38] There was no error in law and fact since the learned High Court Judge had concurred with the opinion of the assessors. There is no legislations which requires a judge to carry out an additional independent evaluation of evidence before pronouncing the judgment.
[39] The Court of Appeal in Kaiymi v State [2014] FJCA 35; AAU 007.2012; it has been held that at para (13):-
“[13] While we accept that in Ram v State [unreported; CAV 1 of 20122; 9 May 2012] the Supreme Court did state that an independent analysis of evidence by the trial Judge was necessary to ensure the verdict is supported by evidence; the remark is only an obiter dicta. We say this because the remark was made in the course of formulating the test when a guilty verdict is challenged on the basis that it is unreasonable or cannot be supported having regard to the evidence.(see section 23(1) (a) of the Court of Appeal Act)”.
[40] In subsequent cases, the Supreme Court has clarified that where the trial Judge agrees with the opinions rendered by the assessors, Section 237 of the Criminal Procedure Decree does not require the trial Judge to carry out an independent analysis of evidence before pronouncing judgment. But the Supreme Court has endorsed that a short written judgment even where confirming with the assessors’ opinion is a sound practice” (State v Mitter (unreported CAV 008 of 2009; 15 April 2011. Mohammed v State (unreported CAV 2 of 2013; 27 February 2014).
[41] Therefore, there was no requirement imposed on the High Court Judge in terms of Section 237 of the Criminal Procedure Act to independently assess/evaluate the evidence as he had agreed with the verdict of assessors. However, the learned trial Judge in his judgment stated that he had considered the law and facts of the case (paragraph 3 & 4 of the Judgment).
“I direct myself in accordance with the summing up delivered to the Assessors. Having considered the legal and factual background as outlined in the summing up I conclude that the unanimous verdict of the assessors is not perverse. Hence, I accept the unanimous verdict of guilt of the Assessors and read a “finding of guilt” of the accused to the charge of manslaughter”.
Appeal Ground 6
The Learned Honourable Justice Bandara; erred in law and in fact, in not directing himself and/or the Assessors, to refer to any summing up the possible defence on evidence and as such by his failure there is a substantial miscarriage of justice.
[42] This ground of appeal also lacks merit. The learned High Court Judge had adequately directed the assessors and himself on the defence of accident.
[43] In the course of the trial proceedings on 5/7/2013 the counsel for the defence has informed court that: “What we say is, this is an accident”.
[44] Having given adequate consideration the above defence of accident raised, the learned High Court Judge had given adequate directions to the assessors, in his summing up in the following paragraph:-
“Ladies and gentleman assessors, next step for you to decide in this case is whether this alleged “firing” was an “accident” or not. As a matter of law I am directing you that an accident is a result of an unintentional or involuntary or unwilled act of the accused. If the act is not the result of the Accused’s will that act cannot be used to impose a criminal responsibility on the Accused. Therefore it is the burden of the prosecution to prove beyond reasonable doubt at the very outset that an ordinary person, rather a child of 10 years and 7 months in this instance, in the position of the accused, could have foreseen the death as a probable or likely consequence of his action. If with the evidence you saw and hear, you decide that the Prosecution has not proven this fact beyond reasonable doubt or for you to be sure of it, you have to conclude that the alleged shooting incident was an accident. In such a situation this matter rests there. In another words, If in your opinion this is an accident, you must come out with a verdict of “Not guilty”.
Appeal Ground 7
That the learned Honourable Justice Bandara erred in law and in fact in not ordering a mistrial when after the three Assessors had delivered their verdict of guilty and before the learned Trial Judge delivered his judgment, it was brought to the attention of the Learned Trial Judge by the Juvenile Appellant’s counsel that it was just revealed by the Juvenile Appellant’s counsel’s staff that the Juvenile Appellant’s counsel was acting against Assessor No. 3 in several matters in Lautoka Magistrate’s Court.
[45] Trial has commenced on 4th June 2013. On 5th July 2013, the assessors had delivered their unanimous opinion that the Appellant is guilty. Thereafter court had stated to the assessors; Court: You are discharged from the proceedings. At that point of time, Counsel, Mr Khan had told court;
Mr Khan : It was only today, I was brought to the notice by my clerk
that the 3rd Assessor’s husband is represented by me in a DVRO case. May it be recorded for future references [Emphasis added]
[46] Thereupon the prosecution had stated the following:-
Prosecution – It was the duty of the Counsel to object to her when the list served on his or after seeing her. Thereafter, according to the proceedings on 1/7/2013, Counsel I. Khan had appeared for the Accused and stated the following:-
Defence : My objection on the assessor No.3 can be abandoned, My
Lord.
[47] We don’t see an objection raised in respect of any assessors at an appropriate time and the whole scenario raises doubts whether the counsel had acted in bona fide in making the said application. Having specifically abandoned the matter at the trial Court, it is unbecoming of the counsel to have raised it as a ground of appeal in the Court of Appeal. What actually happened in court is not honestly reflected in the ground of appeal. This ground of appeal has no merits.
Appeal Ground 8
That the Learned Honourable Justice Bandara erred in law and in fact in not directing and/or adequately directing the assessors and himself on the previous inconsistent statements made by Prosecution witnesses. The learned Trial Judge ought to have directed the Assessors and himself that when a witness is shown to have made previous statements inconsistent with the evidence given by witness at the trial he ought to have directed the Assessors that the evidence given at the trial should be regarded as unreliable. The failure to do so cause substantial miscarriage of justice.
[48] Matters pertaining to this ground of Appeal has been adequately dealt with by the learned High Court Judge in his summing up in the following passages: (page 15 part 7(vii) of the summing up).
“The Police statements made by Mr Inia and Mr Aisea are been provided to you as defence exhibits. But, those are no evidence. What the two witnesses testified from the witness box is evidence. Both witnesses provided reasons as to what made them to extend their earlier position. If you are satisfied with the reasons given by the witnesses or the new developments are true and genuine you can accept and act upon their testimony. If you are not satisfied with their explanations for the extended versions to be sound and convincing especially after 5 months of their initial police statements, that you can use to assess their truthfulness and credibility. Therefore ladies and gentleman assessors, you have to decide what weight you are going to attach to the evidence of Mr Inia and Mr Aisea in the light of the new developments.”
(15 part 7(vi) of the Summing Up)
“In law a prior statement which has been denied or does not distinctly admit by a witness when giving evidence in court is called an inconsistent statement. In this instance none of the above two witnesses denied them making their prior statements to police and disputed the contents of those statements. Thus the evidence of Mr Inia and Mr Aisea can be described as extended or reconstructed versions of their prior statements made to police.”
This ground of appeal has no merits.
[49] Having regard to the above, I would dismiss the appeal of the Appellant and affirm the judgment of the High Court.
Appeal of the State
[50] Now I turn to consider the appeal of the State.
The grounds are as follows:-
That being dissatisfied with the reasons of the High Court of Fiji at Lautoka, as per Madigan, J for the order for costs of $2000.00 to the Director of Public Prosecutions hereby gives you notice that he desires to appeal against that decision on the following grounds:
(a) That the learned Judge erred in law in failing to formulate, read out and hand down the reasons for ‘wasted costs order of $2000.00 simultaneous to his oral order as at 3rd June 2013.
(b) That the learned Judge erred in law and in fact in failing to set out the costs in the cause that justified the wasted costs order of $2000.00 imposed on 3rd June 2013.
(c) That the learned Judge erred in law and in fact in failing to take into account the sworn testimonies of Filimoni Lacanivalu and Dennis Narayan and in taking account untested evidence by Iqbal Khan from the bar table.
[51] The cost order mentioned above is an interlocutory order. The first issue before us is whether the State has a right of appeal against an interlocutory order for costs imposed by the High Court.
[52] Section 3 of the Court of Appeal Act is to the effect that Appeals lie to the court as of right from the final judgments of the court given in the exercise of the original jurisdiction of the High Court.
[53] It is clear that an interlocutory order is not a final Judgment, hence, it does not come under the purview of the said section.
[54] Section 21(1) of the Court of Appeal Act deals with the Appellate powers vested with the Court of Appeal, in relation to entertain an appeal against a conviction of an accused made by the High Court.
[55] Section 21(2) of the Court of Appeal Act deals with the appellate powers vested with the Court of Appeal in relation to entertain an appeal from the State against an acquittal made by the High Court.
[56] None of the provisions referred to above does vest an appellate power with the Court of Appeal to entertain an interlocutory order made by the High Court in the nature of the impugned interlocutory order.
[57] In Balaggan v State; [2012] FJCA 32; Misc. Action 11.2015 (25 May 2012)] Court of Appeal makes reference to R v Collins’ decision [1970] 1 QB 710 page 714] that;
“A Court of Appeal created by the statute has no jurisdiction beyond that which Parliament confers upon it.
The Court of Appeal is created by the Court of Appeal Act Cap 12. The jurisdiction of the Court of Appeal is set out in Section 3(2)(a) of the Act which provides that:-
“The Court shall have power and jurisdiction to hear and determine all appeals which lie to the court by virtue of the constitution, this Act or of any other law for the time being in force”.
[58] Section 7(1) of the Administration of Justice Act 2009 (the Decree) which provides:-
“The Court of Appeal has jurisdiction, subject to this Decree and such requirements as prescribed by law to hear and determine appeals from all judgments of the High Court and as such other jurisdiction as is conferred by law.”
[59] In Balaggan’s case, it has been held that:-
“Therefore under the Court of Appeal Act, the jurisdiction of the court to hear and determine appeals is restricted to appeals which lie to the court under the Act itself or any other Act pursuant to section 3(3) of the Act appeals lie as of right from final judgments given in the exercise of the original jurisdiction of the High Court”.
[60] In Balaggan’s case, the Court of Appeal has further held:-
“Whether a decision or judgment is a final or interlocutory is an issue which usually arises in civil proceedings. In criminal proceedings it is more readily assumed that the final decision or judgment is the decision of the court which brings the criminal proceedings to a conclusion.”
[61] In Gounder v Minister for Health (Unreported Civil Appeal no. 75 of 2006 delivered on 9 July 2008), the Court of Appeal has held;-
“37. This is the position when the proceedings are commenced in the High Court in the Courts original jurisdiction and the matter proceeds to hearing and judgment and the Judge proceeds to make final orders to declarations, the judgments and orders are not interlocutory (ie. They are final).
38. Every other application to the High Court should be considered interlocutory...”
[62] Having regard the above statutory provisions and the common law principles I am of the view that the order made by the learned High Court Judge by way of ordering ‘waster cots order of $2000.00 is an interlocutory order. Hence an appeal cannot be preferred to the Court of Appeal against such an interlocutory order seeking a determination whether the High Court had erred in law.
[63] Accordingly, I would hold that this court has no jurisdiction to hear the appeal made by the State against the impugned interlocutory Order.
[64] In view of the above findings, I would not proceed to consider the ground of
Appeal regarding the wasted costs order imposed on the State.
Orders of the Court:
Hon. Justice S. Gamalath
JUSTICE OF APPEAL
Hon. Justice C. Prematilaka
JUSTICE OF APPEAL
Hon. Justice N. Bandara
JUSTICE OF APPEAL
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