Ram v Director of Public Prosecutions [1999] FJSC 1; CAV0001U.1998S (5 March 1999)

Fiji Islands - Ram v Director of Public Prosecutions - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

AT SUVA

ON APPEAL FROM THE COURT OF APPEAL, FIJI

CRIMINAL APPEAL NO. CAV0001 OF 1998S
(Court of Appeal, Fiji, Criminal Appeal No. AAU0004/95S)

BETWEEN:

:

ATISH RAM
Appellant

AND:

DIRECTOR OF PUBLIC PROSECUTIONS

Coram: The on. Lord Lord Cooke ofke of Thorndon
The Hon. Sir Anthony Mason
The Hon. Sir Gerard Brennan

Hearing: Tuesday, 2 March 1999
Date of Judgment: Friday, 5 March 1999

Counsel: Mr. G.P. Shankar for the Appellant
Mr. K. Wilkinson for the Respondent

JUDGMENT OF THE COURT

On 19 December 1993, Ramesh Bhindi was murdered at his workplace, a jeweller’s workshop in Nadi. Sulphuric acid was thrown over Bindi’s head and he was attacked with an anvil that inflicted fatal injuries upon him. His brain stem was fractured by the force of the anvil’s impact. The appellant, Ram, and a co-accused, Sami, were his fellow workers. Immediately after the murder, Ram and Sami disappeared with $38,000 worth of jewellery which was taken from the safe in the workshop. Three days later, they surrendered themselves to the police who had been searching for them and they were charged with murder and robbery. They were tried before Ashton-Lewis J and three assessors. After a trial which lasted for forty days, including twenty four days of a trial within a trial to determine the admissibility of confessions made by the accused to the police, the assessors unanimously expressed the opinion that both of the accused were guilty of the crimes charged. The learned trial judge, accepting the jury’s opinion that Sami was guilty, convicted him. But, for reasons which he stated, his Lordship declined to accept the opinion of the assessors in Ram’s case and he acquitted Ram on both counts.

In Fiji, the State has a right of appeal against an acquittal in consequence of amendments in 1990 to sections 21 and 23 of the Court of Appeal Act. The amended provisions, inserted by the Court of Appeal Act (Amendment) Decree 1990 read as follows:

The State on a trial held before the High Court may appeal under this Part to the Court of Appeal:-

21(2) "(a) against the acquittal of any person on any ground of appeal which involves a question of law alone;

(b) with the leave of the Court of Appeal or upon the Certificate of the judge who tried the case that it is a fit case for appeal against the acquittal on any ground of appeal which involves a question of fact alone or a question of fact alone or a question of mixed law and fact or any other ground which appears to the Court to be a sufficient ground of appeal; and

23(1) The Court of Appeal –

(b) on any such appeal against acquittal 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 acquitted 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;

A proviso authorizes the dismissal of an appeal if there be no miscarriage of justice.

The State sought leave to appeal against Ram’s acquittal and was given leave to appeal on two grounds, namely –

"The learned trial Judge erred in fact and in law when he over-rules the unanimous opinion of the assessors because he held that the assessors opinion was founded on the view of the Respondent’s evidence on the voir dire;

The learned trial judged erred in fact and law by misdirecting himself as to the admissibility of the Respondent’s evidence on the voir dire."

The Court of Appeal allowed the appeal the same time, it allowed Sami’s appeal against conviction. In both cases, a retrial was ordered before a judge other than the original trial judge: see Court of Appeal Act, section 23(2). Ram seeks leave to appeal against the orders of the Court of Appeal in his case.

The power to convict.

When a trial is held before a judge and assessors, the power to convict or acquit is vested in the judge after receiving the opinion of the assessors: Criminal Procedure Code, section 299. The judge is not bound by the opinion but he must take the opinion into account. This was the law under the now repealed section 246 of the Criminal Procedure Code (Bharat v R (1953) AC 539 at 539) and it remains the law under section 299. Where the judge accepts the opinion of the assessors, no reasons need be given. In such a case any appealable error on the part of the judge will appear in the summing up or elsewhere in the record of the trial. But if the Judge differs from the opinion of the majority of the assessors, he must state his reasons for doing so and they become part of the judgment of the Court: Criminal Procedure Code, section 299. Those reasons thus become available for examination on appeal by the Court of Appeal.

By a long line of authority in Fiji, the approach by the Court of Appeal to a review of a judge’s decision at variance with the opinion of a majority of assessors has been settled. It was stated by the Court of Appeal in Litivai Setevano v The State (Criminal Appeal No 14 of 1989, p 7):

"It is clear that a Judge in Fiji is entitled in law to disagree with the majority opinions of the assessors, and even where they are unanimous, but his reasons for doing so must be cogent and they should be clearly stated. In our view they must also be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial."

Although the Court of Appeal is bound to scrutinize carefully a judgment at variance with the opinion of a majority of assessors, the statute reposes in the judge the sole power to convict or acquit. The requirement that reasons be stated does not modify that power. It is not conditioned on the expression of reasons of self-evident cogency. The whole of the circumstances must be looked at and the reasons examined in the light they cast. In that way, the reasons are exposed to critical examination. But the reasons are not open to criticism merely because they do not demonstrate that the opinion of the majority of the assessors is infected by appealable error. The judge must accept the assistance of the opinion of the majority of assessors on issues of fact but, at the end of the day, the sole responsibility for making the finding of fact rests on the judge alone.

To appreciate the grounds on which Ashton-Lewis J declined to accept the opinion of the assessors in Ram’s case, it is necessary to say something about the circumstances of the crime and about the course of the trial. The prosecution case was based largely on confessional statements made by the respective accused. A summary of those statements was given by the Court of Appeal:

"Sami told the police that he had thrown acid at the victim and, as he rushed in the direction of the wash-basin or the back door, Sami said to Ram, 'Hit him'. Whilst Ram attacked the victim, Sami went to the safe and started taking the jewellery. He was then joined in this by Ram. As they left, Sami again poured acid on the recumbent body of the victim. He told the police that the two of them had planned the attack the previous day in order to steal the jewellery but that he had not told Ram that he had intended to throw acid."

"Ram described how Sami threw the acid and then, as the victim ran off, he, Ram, picked up the anvil and hit the deceased on his neck. He said he hit once then and once more as he left the shop, at the time that Sami threw the second bowl of acid. He also said this had been planned by them both the previous day."

The voluntariness of the confessions was challenged at the trial but, after the accused made unsworn statements in response to the sworn evidence adduced by the State, the confessions were ruled admissible by the trial judge and went before the assessors. Both accused then gave evidence at the trial: Sami repeated the earlier admission that he had thrown the acid but said there was no agreement the previous day although he said he had told Ram he would attack the victim. Having thrown the acid, he did not tell Ram to hit the victim nor did he see him hit. Whilst he, Sami, was rifling the safe, Ram joined him to assist. He, Sami, did not hit the victim but, as they were leaving the shop, Ram told him he had done so.

Ram recanted his confession. He gave sworn evidence that he was away from the shop buying cigarettes when the attack occurred. On his return, Sami told him how he had thrown acid at the victim but, when Ram said he would tell his aunt and uncle, he was threatened with a similar death by Sami. That threat was repeated by Sami's brother during the days they were in hiding and frightened Ram to such an extent that he made an untrue confession of participation in the killing. He said he was too scared to tell the police or the magistrate the truth. Although he repeated his allegation that the police had used violence on him, he did not deny he made the confessions to the police; he said they were untrue and made entirely as result of his fear of Sami and his brother.

The reasons why the trial judge acquitted Ram appear from his judgment. In the first place, and most significantly, he believed Ram’s sworn evidence. He said:

"After having observed the second accused closely throughout the 40 day trial, and particularly throughout the two days of his sworn evidence, part of which was under forceful and searching cross-examination by both counsel for the first accused, and the state, I am satisfied that the evidence of the second accused in that regard was not a recent invention, and thus I can only conclude that the second accused and his counsel made the decision for whatever tactical reason, to leave that allegation until the trial proper. With respect, I might add that if I am right in my conclusion, I believe that such a choice left much to be desired because given what I am about to say, after having carefully observed the second accused throughout the trial, and having heard that new evidence and, see it tested in cross-examination, I now have sufficient doubt as to the voluntariness of the second accused's confessions in his Caution Interview and Charge Statement. Had I heard that evidence in the Voir Dire and formed the same view that I now hold, I would have ruled that the second accused's Caution Interview and Charge Statement were inadmissible on the trial, and such damning evidence would never have come before the Assessors for their consideration."

And:

"My observations of the second accused lead me to the conclusion that he is a quiet, unsophisticated youth, and that the violence he witnessed perpetrated upon the victim by the first accused, coupled with the immediate threat that he would be killed in the same manner by the first accused, as well as hunted down and killed by the first accused's brother, could easily have led him to confess to crimes that he did not commit, and then remain silent over a long period of time."

"When I review his demeanour and testimony in the witness box I find myself of the opinion that his evidence impressed me because he was simply telling the truth."

Then his Lordship referred to the evidence relating to the splashing of the sulphuric acid.

"Further, the lack of any acid burns on the clothing of the second accused also raises a sufficiency of doubt in my mind as to the second accused's presence at the scene when the first accused threw sulphuric acid over the victim."

And:

"Given that I am satisfied that the first accused lied when he said that the second accused was present at the table when he threw acid on the victim, as well as the evidence of the lack of any trace of acid on the second accused's clothes, whilst large amounts appear on the first accused's clothes, the table and the victim, all of that I believe corroborates in a material way the second accused's claim to being absent when the first accused attacked the victim."

The trial judge was conscious of the fact that the evidence against Ram came not only from the prosecution but also from the evidence of Sami. But his Lordship said that the matters to which he had alluded "acted to raise a sufficiency of doubt in my mind as to the evidence alleged against [Ram] by both the State and [Sami]."

The Court of Appeal was critical of the reasons why the trial judge had accepted the evidence of Ram. In the first place, it was said that he ought not to have conjectured about the reasons why Ram and his counsel had failed to lead evidence of the threat by Sami and his brother before Ram gave evidence at the trial. But his Lordship's conjecture would have occurred to anybody observing the conduct of the trial. In itself, it did not indicate any error on his part in attributing credibility to Ram’s evidence. Indeed, if the conjecture were relevant to that question, it would have tended to make the judge pause before accepting the evidence.

Then the Court of Appeal thought there was force in the suggestion that, if the trial judge came to the conclusion that he would have rejected Ram’s confessional statement if he had had Ram’s evidence during the voir dire, he should have directed the assessors to disregard that evidence or, preferably, he should have discharged them and held a fresh trial. With respect, it is difficult to see how either of the suggested courses could have been taken at that stage of the trial without injustice to either Ram or Sami.

The Court of Appeal also found an error of principle in the trial judge’s reaching a view about the credibility of Ram by having regard to what had transpired during the twenty four days of the hearing of the voir dire in the absence of the assessors. Their Lordships were of the view that "[i]t cannot be a proper basis for the Judge to reach a decision that includes evaluation of evidence that was not before the assessors." Of course, no sworn evidence had been given by Ram except before the assessors. Only then did the trial Judge form the opinion that Ram was a truthful witness. That was due to the tactics of the defence in failing to disclose the facts to which Ram deposed at any time prior to his giving evidence. At the end of the trial the Judge has the ultimate responsibility of determining guilt or innocence. The question for the Court of Appeal was whether there was any inhibition on the trial judge’s taking account of impressions he gained during the trial within the trial informing his view on credibility. In the absence of a contrary statutory direction, there seems to be no reason why he should not have had regard to whatever was regularly before him that assisted in showing whether Ram was a witness whose evidence might engender a reasonable doubt. It would be artificial to expect a Judge to exclude from his mind material which, having been laid before him regularly in the course of the trial, is relevant to his assessment of credibility. No objection can be taken to the trial judge’s acceptance of Ram’s credibility.

However, the Court of Appeal found a further matter which caused them "more concern". It relates to what their Lordships saw as a fatal inconsistency between the verdict of conviction of Sami and the verdict of acquittal of Ram. They said:

"On the evidence that was placed before them, the fact the assessors convicted both accused on both counts can only have resulted from the acceptance by them of the prosecution version of events: namely that the blows that caused the death of the victim were administered by the second accused. Had they accepted the second accused's version, they would have acquitted him and the conviction of the first accused would have been on the basis that it was he who struck the fatal blows. If their decision had been on the basis of the first accused's version, they would only have convicted him of robbery or, if they had been properly directed, possibly of robbery and manslaughter."

Although two accused may be tried in a joint trial upon the one charge as participants in the same degree, the conviction of either is dependent on the body of evidence admissible and admitted against that accused: R v Darby [1982] HCA 32; (1982) 148 CLR 668 at p 678; King v The Queen [1986] HCA 59; (1986) 161 CLR 423; and see Osland v The Queen [1998] HCA 75; (1998) 73 ALJR 173. The evidence admissible and admitted against Sami included his own confessional statement, Ram’s evidence and the evidence relating to the scene of the crime including the splashes of acid. On this material, the assessors would have been entitled to come to the conclusion beyond reasonable doubt that Sami was guilty, whether on the footing that he and he alone inflicted the fatal blows with the anvil or on the footing that he procured Ram to strike those blows. But the assessors would have been entitled to entertain a reasonable doubt, because of Ram’s evidence, as to the truth of Ram’s confession and as to the truth of Sami’s evidence against Ram. They would have been entitled to form the opinion that on the evidence in Ram’s case, Ram was not proved beyond reasonable doubt to be guilty whilst the evidence in Sami’s case was sufficient to convict Sami. The judge was similarly entitled.

In this case, as we have pointed out, the trial judge found that when Ram gave his evidence before the assessors "he was simply telling the truth." Once the trial judge came to that conclusion, he was not only entitled to acquit Ram; he was bound to do so. It would have been a miscarriage of justice for the judge as the tribunal of fact to convict Ram of murder in accordance with the opinion of the assessors when the judge himself believed Ram’s evidence of innocence. A judge who fails to form and give effect to his own view of guilt or innocence after ascertaining the opinion of the assessors does not discharge his statutory duty, as the Privy Council pointed out in allowing the appeal in Joseph v. The King (1948) AC 215 at p 221:

"The learned Chief Justice does not appear to have brought his own mind to bear on the question of the guilt or innocence of the accused. He left the appreciation of evidence to the assessors, and accepted their conclusion as the verdict of a jury which bound him, instead of regarding it merely as an opinion which might help him in arriving at his own conclusion. The appellant was entitled to be tried by the judge and he has not been so tried and, in the circumstances, the only course open to the Board was to advise His Majesty to allow the appeal and quash the conviction and sentence."

It would be a rare case indeed in which it would be right for the Court of Appeal to set aside a verdict of acquittal when the trial judge found an accused who gave exculpatory evidence to be a witness of truth, contrary to the opinion of assessors. That is because the ultimate responsibility for deciding whether the State’s onus of proof has been discharged rests on the trial judge. So far as the researches of counsel have shown, in no previous case in which the courts have reviewed the findings of trial judges has the trial judge acquitted contrary to the opinion of assessors when the acquittal is based on the judge’s finding that the accused has told the truth. By rejecting the trial judge’s conclusion on credibility and setting aside the acquittal in this case, the Court of Appeal broke new ground. Their Lordships were mistaken in thinking that the criticisms they made of matters peripheral to the trial judge’s critical finding that Ram "was simply telling the truth", demonstrated error in the finding itself. Their Lordships said:

"Had the Judge contented himself with an affirmation that the evidence of the respondent had a reasonable possibility of being correct and had not cluttered his judgment with extraneous matters, we should have found it difficult to have interfered with a factual finding which was open to him on the evidence."

The Court of Appeal was mistaken in setting aside the finding by the trial judge in Ram’s case that Ram was telling the truth when he swore that he was not a party to the killing. The acquittal should have been allowed to stand. Therefore it is necessary to allow Ram’s appeal to this Court, set aside the judgment of the Court of Appeal and in lieu thereof dismiss the State’s appeal to the Court of Appeal.

Before departing from this case, we must refer to an argument advanced by Mr Shankar based on Section 28(1)(k) of the 1997 Constitution of the Republic of the Fiji Islands. That provision confers on every person charged with an offence the right "not to be tried again for an offence for which he or she has previously been convicted or acquitted." This provision is said to be applicable to the present case and to the order for retrial made by the Court of Appeal before the 1997 Constitution came into force by reason of the operation of section 195(2)(h) of the Constitution. This argument was not raised in counsel’s written submissions and counsel were not in a position to research the matter fully, with reference to the jurisprudence of other nations whose Constitutions might contain a similar safeguard against double jeopardy. For that reason alone we should not wish to decide this case on constitutional grounds. There are other reasons which lead to the same result.

First, no question of retrial arises unless and until the verdict and judgment of acquittal is set aside. For the reasons we have given, that verdict and judgment should stand. Therefore the scope and operation of section 28(1)(k) does not arise.

Secondly when it is not necessary for the determination of a case to decide an unsettled point of constitutional interpretation, it will often be the more convenient course not to embark on the constitutional question. We therefore say nothing as to the interpretation of section 28(1)(k) of the Constitution.

Lord Cooke of Thorndon

Sir Anthony Mason

Sir Gerard Brennan

Solicitors:

Messrs. G.P. Shankar and Company, Ba for the Appellant
Office of the Director of Public Prosecutions, Suva for the Respondent

CAV0001U.98S