Regina v Chand [1972] FJLawRp 18; [1972] 18 FLR 101 (17 July 1972)

[1972] 18 FLR 101

SUPREME COURT OF FIJI

REGINA

v.

JAI CHAND

[SUPREME COURT, 1972 (Grant J.), 10th-14th, 17th July]

Criminal Jurisdiction

Criminal law - trial - submission of no case to answer - principles applicable - mere scintilla or worthless evidence insufficient - question whether manslaughter verdict appropriate on ground of excessive force in self defence considered - Penal Code (Cap. 11) ss. 17, 228(1)-Indian Penal Code, s. 300 - Tanganyika Penal Code, s.18.

Criminal law - principles of criminal liability - whether appropriate to base conviction of manslaughter on ground of use of excessive force in self, defence - authorities considered-Penal Code (Cap. 11) s. 17.

Criminal law - evidence and proof-submission of no case to answer - principles applicable.

The decision whether at the conclusion of the case for the Crown there is a case for an accused person to answer, should depend not so much on whether the court would at that stage convict or acquit as on whether the evidence is such that a reasonable tribunal, properly directing its mind to the law and the evidence, could or might convict on the evidence so far laid before it. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence.

Authorities on the question whether in Fiji in appropriate circumstances the offence of murder may be reduced to that of manslaughter on the grounds of excessive force used in self defence, considered.

Per curiam: In view of section 17 of the Penal Code (which provides that, subject to any provisions of law in operation in Fiji, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law) and bearing in mind that the Privy Council, is not the repository of English common law, the decision of the Privy Council in R. v. Palmer [1970] UKPC 2; [1971] A.C. 814; 55 Cr. App. R. 223, though of the highest persuasive authority, may not be binding in Fiji. In any event that case does not go far as to lay down that assessors must not be directed that, if they consider that excessive force was used in self defence they should return a verdict of manslaughter, where such a direction is warranted on the facts and in the interests of justice.

Other cases referred to:

Armah v. Government of Ghana [1968] A.C. 192; [1966] 3 All E.R. 177.

Ramanlal Trambaklal Bhatt v. Reg. [1957] E.A. 332.

R. v. Wheeler [1967] 1 W.L.R. 1531; [1967] 3 All E.R. 829.

R. v. White (1924) 17 Cr. App. R. 60.

R. v. Harris (1925) 18 Cr. App. R. 26.

R. v. Golder (1961) 45 Cr. App. R. 5; [1960] 3 All E.R. 457.

R. v. Cook (1640) 79 E.R. 1063; Cro. Car. 537.

R. v. Scully [1824] EngR 445; (1824) 171 E.R. 1213; 1 Car. and P. 319.

R. v. Whalley [1835] EngR 909; (1835) 173 E.R. 108; 7 Car. and P. 245.

R. v. Patience [1837] EngR 545; (1837) 173 E.R. 338; 7 Car. and P. 775.

R. v. Smith [1837] EngR 988; (1837) 173 E.R. 441; 8 Car. and P. 160.

R. v. Bull [1839] EngR 487; (1839) 173 E.R. 723; 9 Car. and P. 22.

R. v. Odgers [1843] EngR 485; (1843) 174 E.R. 355; 2 M. and Rob. 479.

R. v. Allen (1867) 17 L.T. 222.

R. v. Weston (1879) 14 Cox C.C. 346.

R. v. Symondson (1896) 16 J.P. 645.

R. v. Biggin [1920] 1 K.B. 213; 14 Cr. App. R. 87.

R. v. Richardson [1971] 2 Q.B. 484; 55 Cr. App. R. 244.

R. v. Davies [1971] Crim. L.R. 650.

R. v. Cheng Wai-Ting Hong Hong Kong 1963.

R. v. Tsang Wah Hong Hong Kong June 1963.

R. v. Ngoilale (1951) 18 E.A.C.A. 164.

R. v. Shauski (1951) 18 E.A.C.A. 198.

R. v. Hau (1954) 21 E.A.C.A. 276.

R. v. Yozefu Engichu (1954) 21 E.A.C.A. 294.

R. v. McKay [1957] VicRp 79; [1957] V.R. 560.

R. v. Howe [1958] HCA 38; (1958) 100 C.L.R. 448.

R. v. McInnes [1970] UKPC 2; [1971] 1 W.L.R. 1600; (1971) 55 Cr. App. R. 223.

Ruling on submission of no case to answer at the trial in the Supreme Court of an indictment for murder.

R. v. Davies for the Crown.

F.M.K. Shereani for the accused.

The facts sufficiently appear from the ruling.

17^th July 1972

GRANT J.:

The accused is charged with Murder contrary to section 228(1) of the Penal Code.

Counsel for the accused has submitted at the close of the case for the prosecution that the evidence is not sufficient to put the accused upon his defence, that is to say that the prosecution has failed to make out a prima facie case and that there is accordingly no case for the accused to answer.

When so eminent a jurist as Lord Reid, then senior Lord of Appeal in Ordinary, has stated "I do not know what 'prima facie' means" (Armah v. Government of Ghana and Anr. House of Lords (1966) The Times July 13), it will be apparent that the determination of whether or not a prima facie case has been made out is not without difficulty. However I propose to be guided by the pronouncements of the Court of Appeal for Eastern Africa in Ramanlal Trambaklal Bhatt v. Reg. [1957] E.A. 332, and by the Practice Note of the former Chief Justice of England Lord Parker at [1962] 1 All E.R. 448; from which it seems clear that the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence.

The prosecution has established that on the 5th day of March 1972 at Vuci, Nausori, Bhawan Prasad s/o Jagar Nath sustained a wound to the right upper half of his abdomen which penetrated internally to a depth of 4/1/2 inches resulting in his death, which wound could have been caused by a knife with a thin blade penetrating to that depth; but before a charge of murder can be made out the prosecution must prove that the accused unlawfully and voluntarily inflicted this wound and must disprove, as an essential part of its case, that the death of the deceased was caused by accident or by the accused acting in self-defence (R. v. Wheeler [1967] 1 W.L.R. 1531).

The prosecution called three purported eye witnesses of the incident during which the deceased came by the wound which caused his death, namely Surendra Prasad (P.W.7), Karan Singh (P.W.12) and Uday Prakash (P.W.9).

Surendra Prasad claimed that an account by Uday Prakash of an encounter with the accused earlier that evening, and which was intimately linked with the incident giving rise to the death of the deceased, was untrue. He admitted that he had told lies when testifying in the Magistrate's Court, and that he had told lies to the police in his police statement (Ex. A) on vital issues. It transpired that at the time of the incident he did not see a knife in the accused's hand, did not see the deceased struck with a knife nor anything to account for the deceased retreating, did not see the accused attack Karan Singh and did not see Karan Singh struck with a knife.

He was utterly discredited and no reliance can be placed on his testimony.

As to Karan Singh, he also told lies when testifying in the Magistrate's Court, by categorically denying that there had been an earlier encounter with the accused that evening. He repeated this falsehood on oath in this Court before admitting under cross-examination that there had been an earlier encounter and that he had made a "mistake". It was not a mistake. It was a deliberate attempt to mislead the lower Court and this Court. It transpired that at the time of the incident he had gone ahead of the accused and the deceased and did not see the deceased struck by anything or anyone.

He was utterly discredited and no reliance can be placed on his testimony. In coming to this conclusion I have not overlooked the scratch mark on the left side of his abdomen as described by Dr. Parmar (P.W.3) or the small tear in his singlet (Ex. 7) but I do not consider these sufficient corroboration of any part of his testimony as to make it reliable.

As to Uday Prakash, on the application of the prosecution he was declared a hostile witness and a previous inconsistent statement (Ex. 10) which he had made to the police and which contained matters most material to the prosecution case and on which the prosecution had placed considerable emphasis was put in evidence for the purpose of discrediting his testimony.

Uday Prakash claimed that where his police statement differed from his evidence it had been fabricated by the police. The two police officers responsible for recording the statement, Detective Sergeant Yad Ram (P.W. 10) and Police Constable 579 John Mohammed (P.W. 11), gave conflicting and irreconcilable versions of the circumstances surrounding the taking of the statement and their evidence was manifestly unreliable.

The usual effect of declaring a witness hostile is to render the evidence of that witness negligible (e.g. R. v. White 17 Cr. App. R.60; R. v. Birch 18 Cr. App. R. 26; R. v. Harris 20 Cr. App. R. 144; and R. v. Golder & Ors. 45 Cr. App. R. 5); but in this case the position is uncommon (and one can only hope that it will remain so) in that the "hostile" witness was clearly more worthy of belief than the police officers; resulting in the prosecution being placed in the singular and unenviable position, after having put to Uday Prakash that his testimony was not true, of virtually inviting the Court to give credence to his testimony.

I have concluded that it is open to the Court, in spite of his being declared hostile, to consider his evidence on the basis that he was an honest witness and I have done so. Regarding the incident in question his evidence was that when he and the accused and another youth called Suresh Chand were walking home along Vuci Road in the early hours of the morning he passed a group of youths, among whom was Karan Singh, when about one chain away from the entrance to a feeder road leading to the accused's house, at which time he was walking ahead of the accused. When he had reached a point three or four yards beyond the entrance to the feeder road he heard a noise as if someone was kicking gravel, and he testified.

"I turned around and stood there. It is because I heard the noise that I turned round. I just took one more step turned round and stood there. I saw boys were crowded up there. I did not notice which side the accused was because it was some distance away from me and I could not see clearly. When I turned round I did not see the accused. I saw the boys had crowded up. I went closer to them. When I went near I saw one boy's chest was bleeding. He was about two paces away from me. The accused was about four paces away from him. The boy who was bleeding had both hands on his chest and was retreating. The accused was doing nothing. He was standing there and another boy was standing in front of him. I could see the accused's hands. He had nothing in his hands. I say that I could see that he had nothing in his hands. The boy who was bleeding said "Look he has hit me with a pen knife". After that the accused told Suresh to go and call uncle. The boys in the other group were picking up stones. I do not know why. The accused said to Suresh "Go and call uncle these boys are hitting me with stones." The accused did not say anything to the boys picking up stones. Suresh did not go. At the time they had picked the stones the accused had moved back and stood there. Not for very long as a taxi came. The boys from the other group stopped the taxi. They loaded the injured boy into the taxi and the boys went away. Then I went home and the accused went home."

I have compared this evidence with the accused's version of events and can find no inherent conflict.

This leaves the prosecution with the accused's version of events as obtained from him by the police in an interview under caution at 5.10 a.m. the same morning and in his reply under caution (Ex. 12/13), when charged with murder only ten minutes after the interview concluded.

The interview with the accused took the form of questions and answers. The accused who was not obliged to reply to, the questions did so voluntarily, and his version of events, necessarily limited as it was to answers to specific questions, when put into narrative form is that while he and Uday Prakash and Suresh Chand were walking home after 2 a.m. on the morning in question he had reached the entrance to the feeder road leading to his house when an Indian youth swung a dagger at him which touched his hand and another youth hit him with his fist. The accused kicked the Indian youth on the hand and the dagger fell to the ground whereupon the accused picked it up and was running towards his house when the Indian youth jumped on him and the dagger came into contact with the Indian youth. The accused was not injured and after the incident left the dagger on the road.

When charged ten minutes later the accused replied "He hit me first and then I hit him with dagger and other statement I already gave it all that is true."

I place no significance on the use of the word "dagger" by the accused when the deceased apparently used the word "pen knife" as verbal distinctions between various types of knives are not generally appreciated in Fiji. The knife in question, in any event, has never been found.

At 7.20 a.m. the same morning the accused was examined by Dr. Parmar who found a slight abrasion to his left index finger, which so far as it goes, is consistent with the accused's contention that when the Indian youth swung the dagger at him it touched his hand.

On the version of events put forward by the accused when interviewed by the police, he is not guilty of any offence. I have given careful thought to the fact that when he then voluntarily replied to the charge the accused used the phrase "then I hit him with dagger", but in its context I consider this no more than a mere scintilla of evidence insufficient to put the accused on his defence even on a charge of manslaughter.

I might add that I have taken the opportunity of considering whether in Fiji in appropriate circumstances the offence of murder may be reduced to the offence of manslaughter on the grounds of excessive force used in self-defence.

Section 17 of the Penal Code provides that subject to any express provisions therein or any other law in operation in Fiji, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law. There are no express provisions in the Penal Code nor is there any other law in operation in Fiji governing the position and consequently one turns to the English common law. I have examined various early English authorities, including R. v. Cook (1640) 79 E.R. 1063 at 1064; R. v. Scully [1824] EngR 445; (1824) 171 E.R. 1213; R. v. Whalley [1835] EngR 909; (1835) 173 E.R. 108 at 110; R. v. Patience [1837] EngR 545; (1837) 173 E.R. 338; R. v. Smith [1837] EngR 988; (1837) 173 E.R. 441 at 442 et seq.; R. v. Bull (1839) 173 EA. 723; R. v. Odgers [1843] EngR 485; (1843) 174 E.R. 355 at 356; R. v. Allen (1867) 17 L.T. 222 at 225; R. v. Weston (1879) 14 Cox C.C. 346 at 351; R. v. Symondson (1896) 60 J.P. 645 at 646 and R. v. Biggin [1920] 1 K.B. 213 at 219. While the ratio decidendi of a number of these cases is somewhat obscure and while several of them probably turn on provocation (e.g. R. v. Allen), there is no doubt to my mind that they recognise (in the cases of R. v. Bull and R. v. Scully by the prosecution indicting the accused for manslaughter only) that murder may be reduced to manslaughter where an accused has used more force than was necessary to defend himself, even although some of the constituents of self-defence or provocation may be absent.

That the Judges of the Queen's Bench Division in England (who are the repositories of the common law - R. v. Richardson [1971] 55 Cr. App. R. 244 at 250) continued to adopt the same approach is evident from R. v. Davies, referred to at [1971] Crim. L.R. p. 650, in which at Bedford Assizes in January 1965 Mr. Justice Stable in a murder trial where self-defence was raised directed the jury:

"The law is this, that if in that situation he does kill the assailant and the jury come to the conclusion that his resistance was reasonably commensurate to the peril which he encountered, then he is entitled to be acquitted. He has not committed a crime at all.

There is a sort of halfway house members of the jury, and that is this. In a case where the jury come to the conclusion 'Well he was entitled to defend himself, he had to defend himself, but we are satisfied that in defending himself he went further than was reasonably necessary,' then the jury is entitled to say: 'Well, we are not going to acquit him because we think that he went far beyond what was reasonable in the circumstances, but we are going to acquit him of murder and convict him of manslaughter'."

On appeal (No. 364/65 July 30, 1965) the Court of Criminal Appeal in dismissing the appeal said:

"It is only right to say that the summing-up in the opinion of this court does put the defence of self-defence accurately, clearly and completely."

The same approach has been followed in other territories to which the principles of English common law apply.

I clearly recall a case in Hong Kong in 1963 (R. v. Cheng Wai-Ting) where the trial Judge (now the Chief Justice) after dealing with the law of provocation and of self-defence in his summing up went on to instruct the jury that if a person kills another by using; more force than is necessary to defend himself, or enters into a contest with an unarmed man when he himself is armed with a deadly weapon not intending to use it, but subsequently uses it in the heat of passion in consequence of an attack upon him, this amounts to manslaughter. And in a number of cases in Hong Kong (e.g. R. v. Tsang Wah, June 1963) the Crown reduced charges of murder to manslaughter on this basis.

Turning to East Africa in R. v. Ngoilale s/o Lenjaro (1951) 18 E.A.C.A. 164 et seq. the judgment of the Court of Appeal for Eastern Africa, after reciting the facts, proceeded:

"On these facts, whilst the learned Judge recognised that an element of provocation was present, he came to the conclusion that the appellant's mode of retaliation was entirely disproportionate to the provocation offered. He thought also that a mere push was unlikely to have deprived the appellant of his power of self-control. We are not so satisfied, however, that the learned Judge appreciated fully that in the circumstances under which the appellant drew his knife there was also definitely an element of self-defence, or that if he did have this in mind, and there are passages both in the notes of his summing-up to the assessors as well as in the judgment which suggest that he did, that he sufficiently realised, that although the appellant may have gone beyond what in fact was required to defend his person against assault, that fact would not inevitably make his offence murder. If a man acting in good faith exceeds the power given him by law to defend himself and kills his assailant, the resultant homicide whilst not justifiable may yet be excusable, so that his offence can be regarded as manslaughter and not murder. We believe that this aspect of the doctrine of "se et sua defendendo" is sometimes overlooked in these territories, probably because the draftsmen of the Penal Codes operating in East Africa did not see fit to include in the chapter "Offences against the person" a section similar to the second exception to section 300 of the Indian Penal Code which is as follows: -

"Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premiditation, and without any intention of doing more harm than is necessary for the purpose of such defence."

The draftsmen did, however, include a section, which in Tanganyika is section 18 of the Code, which under the marginal head "Defence of person or property" is as follows:-

'Subject to any express provisions in the Code, or any other law in operation in the Territory, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English law.'

This, in our view, is, another way of stating the exception to section 300 of the Indian Penal Code because we regard that provision in the Indian Penal Code as an accurate codification of English common law principles. See for example Russell on Crime (ninth edition at page 504) where the learned author under Part IV deals with excusable and justifiable homicide and in particular the passage at page 507 where a citation is given from I. Hale 453:-

'If A challenges B to fight and B declines the challenge, but lets A know that he will not be beaten, but will defend himself; V and then B going about his business and wearing his sword, is assaulted by A and killed, this is murder in A. But if B had killed A upon that assault it had been se defendendo, if he could not otherwise have escaped; or bare manslaughter if he could have escaped and did not'."

The penultimate and preceding sentences of the judgment read:

"The sentence of death is set aside and a sentence of imprisonment substituted. Whilst we are prepared to concede in the appellant's favour that his only intention was to defend himself the use of his knife in the way he used it against his unarmed assailant did go beyond what was necessary and calls for punishment."

In R. v. Shaushi s/o Miya (1951) 18 E.A.C.A. 198 at 200, after citing R. v. Ngoilale s/o Lenjaro (supra) the judgment continued:

"In addition to the authorities for this proposition cited in that judgment, we may refer to the direction to the jury given by Bosanquet, J., in Rex v. Smith (1837), 8 C. and P., 160, at page 162:-

'Did the prisoner enter into a contest with an unarmed man, intending to avail himself of a deadly weapon? If he did it will amount to murder. But if he did not enter into the contest with the intention of using it, then the question will be, did he use it in the heat of passion, in consequence of an attack upon him? If he did, it will be manslaughter.'

No doubt this element of self-defence may and, in most cases will in practice, merge into the element of provocation, and it matters little whether the circumstances relied on are regarded as acts done in excess of the right of self-defence of person or property or as acts done under the stress of provocation. The essence of the crime of murder is malice aforethought and if the circumstances show that the fatal blow was given in the heat of passion on a sudden attack or threat of attack which is near enough and serious enough to cause loss of control, then the inference of malice is rebutted and the offence will be manslaughter."

I would refer also to R. v. Hau s/o Akonaay (1954) 21 E.A.C.A. 276 citing R. v. Shaushi s/o Miya (supra); and R. v. Yozefu Engichu (1954) 21 E.A.C.A. 294 et seq., which was a case where the accused after being slapped twice and kicked once by a drunken man drew a long-bladed pocket knife which was in his pocket and subsequently struck his assailant twice with the knife causing his death. The judgment of the Court of Appeal reads

"The learned trial Judge considered that the accused had taken an unfair advantage of a drunken man, and found that the use of the knife was deliberate and not due to any loss of control. He also said:-

'There might be cases where two first blows and a kick could be held to amount to provocation but in this case it is beyond consideration: I do not think the accused was in the least goaded to anger and sudden retaliation. He was as ready to fight as was Edipu but each blow from Edipu by fist or foot was to be answered not in kind but with a knife.'

We think with respect that this was a misdirection. This is clearly one of those cases where the issues of self-defence and provocation overlap, and the law applicable thereto has recently been considered by this Court in Hau s/o Akonaay v. R., ante page 276."

Later in the same paragraph the judgment reads -

"We think this was an excessive exercise of the right of self-defence, in that the accused had no reason to anticipate death or grievous harm, but we see no reason to hold that the offence went beyond manslaughter."

In Australia the same doctrine has been applied and refined, notably in the cases of R. v. McKay [1957] VicRp 79; (1957) V.R. 560 and R. v. Howe [1958] HCA 38; (1958) 100 C.L.R. 448. These cases were not followed by the Privy Council in R. v. Palmer [1970] UKPC 2; (1971) 55 Cr. App. R. 223, but it must be borne in mind that the Privy Council is not the repository of English common law, so that while its decision therein is of the highest persuasive authority it is not, I think, binding on this Court in view of Section 17 of the Penal Code. Be that as it may, the ratio decidendi of R. v. Palmer goes no further in my view than holding that there is no rule that where on a charge of murder an issue of self-defence has been left to the jury they must be directed that, if they consider that excessive force was used in self-defence, they should return a verdict of guilty of manslaughter. It does not go so far as to lay down that a jury must not be so directed where the Judge considers such a direction is warranted on the facts and in the interests of justice.

In R. v. McInnes [1971] 1 W.L.R. 1600 the English Court of Criminal Appeal accepted the decision in R. v. Palmer, but the Court of Criminal Appeal went no further than to decide that there was no rule that in every case where the issue of self-defence was left to the jury they had to be directed that if they considered death resulted from the use of excessive force by the accused in defence they should return a verdict of manslaughter.

There is one additional comment I feel it necessary to make on R. v. McInnes. In the penultimate paragraph of the judgment of the Court of Criminal Appeal (page 1610) there occurs the following sentence:-

"Despite the high esteem in which we hold our Australian brethren, we respectfully reject as far as this country is concerned the refinement sought to be introduced that, if the accused, in defending himself during a fisticuffs encounter, drew out against his opponent (who he had no reason to think was armed) the deadly weapon which he had earlier unsheathed and then, "let him have it," the jury should have been directed that, even on those facts, it was open to them to convict of manslaughter."

That may well be the case in England, but in construing and applying the law a Court must have regard to local conditions. In a country where a large proportion of the population are men of extremely powerful physique capable with one blow of a fist of fracturing a person's jaw or of felling him to the ground with such brute force as to fracture his skull, and capable with a bare foot of delivering a kick of such power as to cause a person's death, a proposition that, in defending himself such an attack a person must confine himself to "fisticuffs" and that if he goes further and uses a deadly weapon resulting in the death of his assailant it is not open to convict of manslaughter in lieu of murder, does not commend itself to me; and I am not persuaded that it is the law in this country.

However in the circumstances of this case the point does not arise. Having analysed the whole of the evidence I hold that, on the evidence as it stands, no reasonable tribunal could convict the accused. I accordingly record a finding of not guilty and acquit the accused.

Submission sustained; accused acquitted.