Wali v State [2001] FJLawRp 42; [2001] 1 FLR 192 (24 May 2001)

DANIEL AZAD WALI v STATE

Court of Appeal Criminal Appellate Jurisdiction

24 May, 2001

AAU 0053/99S

Murder – sentencing to life imprisonment - evidence – corroboration – statements inconsistent with the evidence – credibility of a witness

Nanise Wati, the Appellant in this proceedings and one Daniel Azad Wali were charged and convicted with murder of Reena Bibi on 5 October 1996. The trial began in the High Court on the 12th of August 1999 and on the 20th of September 1999 both the accused were found guilty of murder and sentenced to life imprisonment. Daniel Wali appealed against the conviction and sentence. The grounds of appeal were failure by the trial judge to give the assessors: 1. An adequate or proper direction on corroboration of the evidence of an accomplice Sophie Radrodro; 2. a chance to comment adequately or at all on inconsistencies in the evidence of prosecution witnesses; 3. To direct the assessors on important facts which favoured the defence. The court found that Sophie Radrodro, a very important witness for the state, made inconsistent statements in evidence that she gave in court.

Held - Corroboration is any evidence which comes from an independent source and which affects an accused person by connecting or tending to connect him or her with the crime in question. Further it must be evidence which implicates an accused person that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the accused person committed it. A number of incidents referred by the judge to assessors as having a corroborative effect did not meet the requirements of corroboration according to law because they did not satisfy the test of implicating the accused.

Appeal allowed. The conviction and sentence are quashed and a new trial is ordered.

[Note: subsequently, on a retrial, the accused was acquitted and discharged: HAC 012/01 21 August 2001]

No cases referred to in Judgment

Abhay K.Singh for the Appellant
Josaia K Naigulevu for the Respondent

24 May, 2001

JUDGMENT

Casey, Gallen, Byrne, JJA

On the 28th of April 1999 Nanise Wati the Appellant in these proceedings and one Daniel Azad Wali were charged with the murder of Reena Bibi on the 5th of October 1996. The deceased Reena Bibi was murdered at her place 48 Milverton Road, Raiwaqa. A post mortem was carried out by a Doctor R.B Cayari who said that in his opinion the cause of death was a "slashed injury to the neck" which caused severe hemorrhaging and that a sharp instrument was used to cause the injury. The trial began in the High Court on the 12th of August 1999 and on the 20th of September Nanise Wati and the Appellant were found guilty of murder and sentenced to life imprisonment.

Nanise Wati did not appeal against her conviction and sentence but the Appellant did and his appeal is now before the court.

Apart from all other Prosecution witnesses' one very important witness was Sophia Radrodro who said that she knew the deceased Reena Bibi quite well. According to Sophia Radodro that on Saturday October 1996 she went to Chequers Night Club at about 7.00pm. She met Nanise Wati and Daniel Wali there. Nanise Wati then asked Sophia if she could take them to Reena Bibi, as Nanise Wati knew Sophia Radrdro and Reena Bibi were good friends.

At about 10.30 pm the three went to Reena Bibi's flat in a taxi driven by Pita Nasedra. As they arrived at Reena Bibi's place, Sophia then led them to the house and she knocked and called out Reena Bibi's name who in return responded and opened the garage/ carpot door. The deceased opened the door and then walked back inside not knowing that Nanise Wati and Daniel Wali were following Sophia Radrodro in the house.

As Reena Bibi approached the passage she then turned back and when she saw Nanise Wati and Daniel Wali she rushed back passing Sophia Radrodro and tried to push Daniel Wali at the doorway. A struggle followed between Daniel Wali and Reena Bibi at the doorway. During the struggle Bamboo beads, which were hanging at the doorway, broke and fell on the floor. According to Sophia Radrodro Daniel Wali dragged Reena Bibi into the bedroom. Nanise Wati followed Daniel Wali into the bedroom but before doing so had closed the garage door. Sophia said that she heard Reena Bibi yelling and after a while the yelling stopped. Sophia then was scared to check on what had happened but finally she decided to go in the bedroom. She said that she saw Reena Bibi lying on a mattress and blood coming from her neck. Blood was all over the place. Sophia then said that she saw a blade not very long in Daniel Wali's hand.

In cross-examination Sophia Radrodro said she told lies to the Police when first questioned. Sophia Radrodro said she could not hold the truth back any longer and told the truth to the Police in 1999. Sophia Radrodro also said that the reason why she finally told the truth about the murder was that she had confidence in the new team of Police Investigators brought into the case.

The trial began in the High Court on the 12th of August 1999 and on the 20th of September 1999 in which both the accused were found guilty of murder and sentenced to life imprisonment.

Daniel Azad Wali appealed against his conviction and the appeal was allowed and the conviction and sentence quashed, however a new trial was ordered and eventually Daniel Azad Wali was acquitted. The present Appellant, Nanise Wati sought leave appeal out of time and the court granted her application.

At the hearing the Appellant relied however on 4 main grounds. These were:

1. That the direction on intent was inadequate.
2. That the direction on joint enterprise was inadequate.
3. That the judge failed to adequately direct the assessors on the law relating to principal offenders and whatever part the Appellant may have played and
4. That the summing up contained errors of law with regard to corroboration.
   

The prosecution's case at trial was conducted on the basis that Daniel Wali was the principal offender and the present Appellant was a party to that offence. The prosecution was therefore obliged to prove as against Wali an intention to murder within the meaning of the criminal code. The Judge dealt with this in his summing up to the assessors but did so in terms, which did not clearly differentiate the position of the present Appellant.

The prosecution relied upon the provisions of section 21(1) of the Penal Code and contended that the present Appellant had been guilty of aiding and abetting the principal offender.

In the circumstances of the case the Judge ought to have explained to the assessors that mere presence does not of itself constitute aiding and abetting and he ought to have gone on to set out those circumstances upon which the prosecution relied in order to establish both that the present Appellant did some act or acts which could properly be categorised as aiding and abetting and in doing so had the necessary criminal intention.

It was argued therefore that the assessors might have been left in some confusion as to the state of mind which the prosecution needed to prove before the Appellant could be convicted and this was compounded by the lack of any adequate explanation as to what might have constituted aiding and abetting in the particular case.

The Judge in this present case further stated that involvement in a crime as a party involves difficult concepts that need to be explained with some care to the assessors as lay people. The judges in this matter felt that the assessors in the court of first instance may well have been left in some confusion as to the state of mind, which the prosecution needed to prove before the Appellant could be convicted.

On the issue of corroboration, the case against both co-accused was dependent to a considerable extent on the evidence of Sophia Radrodro. Since she was an accomplice there was as obligation to advice the assessors that it was dangerous to convict on her evidence unless it was corroborated to a material extent. The concept of corroboration is a technical and a legal one and is often confused with confirmation. Before the evidence can be corroborative it must directly implicate the accused in the crime.

The situation in this case differs in that there is only one piece of evidence that the Judge advised the assessors could amount to corroboration of the evidence of Sophie Radrodro against the present Appellant, which does not legally amount to corroboration. In relation to the application of s21 and s22 of the Penal Code the judges were left in no doubt that the conviction must in this case be set aside and the appeal allowed.

Furthermore the Court of Appeal was of the view that if the present Appellant were to be retried, the assessors could be told that Daniel Wali had been acquitted. The question would arise as to whether or not the assessors could be informed that Daniel Wali had been retried following on his successful appeal and had been completely acquitted.

While therefore it may be that there was more to corroborate the evidence of Sophie Radrodro as to the implication of the present Appellant, looking at the facts of the matter it is quite unreal to suggest that on the material adduced before the court at the first trial a distinction in the outcome between the co-accused would be a just result even bearing in mind the legal distinctions. If the account that Sophie Radrodro gave was rejected, as against the alleged principal offender it could hardly be decisive against another party. Therefore no order for a new trial is made.

Appeal allowed.

Kamni Naidu