Hilmuk v Reginam [1963] FJLawRp 42; [1963] 9 FLR 92 (19 July 1963)

[1963] 9 FLR 92

FIJI COURT OF APPEAL

CHAUDHAR MASIH HILMUK

v.

REGINAM

[COURT OF APPEAL, 1963 (Finlay V.P., Marsack, J.A., Hammett J.A.), 3rd, 19th July]

Criminal Jurisdiction

Criminal law - duress - threat to kill - opportunity to escape - Penal Code (Cap. 8) s. 16.

The appellant actively aided and abetted others in murdering the deceased. On a plea that he acted under duress throughout; the Court of Appeal held that he had had ample opportunity to escape and that there was insufficient evidence to raise a reasonable doubt whether he was under compulsion as defined in s. 16 of the Penal Code.

Case referred to:

Subramaniam v. P.P. [1956] UKPC 21; [1956] 1 W.L.R. 965; 100 S.J. 566.
Appeal against conviction.

Sharma for the appellant.
Palmer for the Crown.

The facts appear from the judgment.

Judgment of the Court [19th July, 1963] -

This is an appeal against conviction for murder on the 19th January, 1963. Appellant was one of three accused who were tried together for the murder of one Subhas Chandra on the 21st September, 1962. All three accused were found guilty. In the case of appellant four of the five assessors gave the opinion that appellant was guilty of murder and the learned trial judge gave his judgment in accordance with the opinion of the majority; As appellant was found to be 17 years of age at the date of the crime he was sentenced to be detained during the Governor's pleasure.

The ground of appeal was stated to be that the verdict was unreasonable and cannot be supported having regard to the evidence. What was argued before us as the main ground upon which the appeal was based was that at all material times appellant was acting under the fear of instant death at he hands of the third accused, one Latchman. Counsel also contended that the mere presence of appellant at the scene of the crime was not in itself evidence of guilty complicity in that crime. From appellant's own statement it appears that he knew of the intention to make the deceased, Subhas, drunk and then to stab him with a dagger; appellant actually made the purchase of the liquor for the drinking party and was present at that party; he followed the other two accused when they walked off with Subhas. He was present when the murder was committed and under instructions from Latchman picked up the stone with which Latchman had struck the deceased, took it away and threw it into the grass. We are unable to accept the contention that the circumstances surrounding the presence of appellant at the drinking party, his accompanying the others along, the road after the liquor had been consumed, and his presence at the scene of the crime, were purely innocent incidents and did not amount to aiding and abetting. Leaving aside for the moment the question of intimidation of appellant by Latchman, we find that appellant was not only present when the crime was committed but was present with full knowledge of what was going to take place, had assisted in the preliminary, stages by purchasing the liquor and assisted in the later stages by throwing away the stone with which injuries had been inflicted on deceased. In our opinion these facts, taken by themselves, were sufficient to prove active complicity in the crime to the extent that appellant aided and abetted its commission.

Appellant is thereupon confined to the issue of duress, and this was the matter which was argued most fully by counsel at the hearing of the appeal.

The evidence that appellant had acted under duress is contained, mainly, in his statement to the police made on the 22nd September, 1962. In the course of that statement he says:

"Latchman showed one a dagger which was wrapped in a paper and he took it out from his pocket. Latchman said if I will not company them today he will finish me. I said what is the matter. Rajendra said that Latchman want to get Subhas drunk today and finish him. Latchman said, you have to give hand otherwise I will finish you. Latchman said if anyone will know about this he will not let me off. Then I accompanied them and went on Navu Road."

A little later after being charged with murder and cautioned, appellant said:

"I did not do anything, but I was forced to remain there and was standing at a distance and watching when Latchman and Rajendra murdered Subhas. Latchman forced me to pick up the stone and throw away among the grass."

From the evidence of Deputy Superintendent Allen-Mersh it appears that when appellant was being questioned he was asked:

"Is it not true that you bought a bottle of rum from Keshobhai for 18s. 6d.?"

and to that he replied:

"Yes it is true but if I tell you I will be killed."

That is the whole of the evidence with regard to the duress said to have been exercised on appellant by the third accused Latchman.

In the course of his judgment the learned trial judge refers to the defence of duress and says:

"That may have applied, or at least raised a reasonable doubt that it applied, at the time the threat was made. From that time ample opportunity existed before the actual killing for this accused to have got away if he were, in fact, in fear of his life. Yet he made no attempt."

It is the contention of counsel for appellant that there was no such opportunity to escape; that Latchman never left appellant at any material time; that Latchman, to the knowledge of appellant, retained throughout the possession of the dagger; that appellant had no opportunity to confide in Shiu Ram, the farmer who was in no way associated with the other accused in the matter, of their designs on Subhas. Counsel relies on the judgment of the Privy Council in Subramaniam v. P.P. [1956] UKPC 21; [1956] 1 W.L.R. 965 at 972:

"It is also possible, though in their Lordships' view, improbable, that the trial judge directed himself and the assessors that there was no evidence of duress because at the actual moment of capture the terrorists had left and the judge thought that duress, if it had existed, had then ceased to exist. But threats previously made could have been a continuing menace at the moment the appellant was captured, and this possibility was at least a matter for consideration by a jury or by a judge and assessors."

In our opinion, however, the evidence does not support counsel's contention either that appellant had no opportunity to escape or that the menace of the previous threat was still effective up to the time of commission of the crime. The evidence of Shiu Ram, a farmer not associated with the accused in this matter is to the effect that appellant invited him to go with the party and proceed homewards by the Mango tree. As that would have been a long way to Shiu Ram's house, he said:

"I'm going home this way - what about if you fellows want to come."

Someone else in the party said:

"We're going this way- you go your way."

There appears to be no reason why appellant should not have accompanied Shiu Ram if he had wished to make his escape. Then according to appellant's own statement, after all the liquor had been drunk Latchman and Rajendra, the other two accused, caught hold of Subhas, who was then in an advanced state of intoxication, one on each side and walked him along the track; appellant followed. There appears no reason at all why appellant should not then have been able to make his escape, had he wished, when the other two accused were in front and fully occupied in holding up, Subhas.

The section in the Penal Code referring to the defence of compulsion is section 16 which reads:

"A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence."

We find that there was insufficient evidence even to raise a reasonable doubt whether or not appellant was under compulsion, as defined in section 16, when he accompanied the other two accused and Subhas to the scene of the crime and took some positive action in connection with it in throwing away the stone with which some, at least, of the injuries, of deceased had been caused.

For these reasons we find that the appeal on this ground also cannot succeed and the appeal is accordingly dismissed.

Appeal dismissed.*

Solicitor for the appellant: D. S. Sharma.
Solicitor-General for the Crown.

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* The appeals of two other persons convicted jointly with the appellant were also dismissed-see, Appeals Nos. 2 and 3 of 1963 (unreported).