Deo v State [2003] FJSC 10; CAV0006.2000S (11 April 2003)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA
CRIMINAL APPEAL NO. CAV0006 OF 2000S
(Fiji Court of Appeal Criminal Appeal No. AAU0044 of 1996S)

BETWEEN:

DHARAM DEO
[Petitioner]

AND:

THE STATE
[Respondent]

Coram: Hon. Justice John von Doussa, Judge of Supreme Court
Rt. Hon. Justice Sir Kenneth Keith, Judge of Supreme Court
Hon. Justice Robert French, Judge of Supreme Court

Hearing: Tuesday, 8th April 2003, Suva
Thursday, 10 th April 2003, Suva

Counsel: Mr. R.P. Singh for the Petitioner
Mr . G.H. Allan for the Respondent

Date of Judgment: Friday, 11th April 2003, Suva

REASONS FOR JUDGMENT ON PETITION FOR SPECIAL LEAVE TO APPEAL

On 31 July 1996 the petitioner was convicted in the High Court at Labasa of the murder of his wife contrary to s 199 of the Penal Code. She died on 9 November 1995. He was sentenced to life imprisonment under s 200 of the Code. The trial was heard by the Chief Justice sitting with three assessors. There was evidence of a record of interview, signed by the petitioner, in which he admitted striking his wife with a PVC pipe on the head and chest until she died. At trial, however, he said that his wife had been trampled to death by two bullocks.

At trial the petitioner challenged the admissibility of the confessional statements, a challenge which was heard by the Chief Justice sitting alone over some seven hearing days. The Chief Justice ruled that one of the statements, made in Hindi to a police officer, was admissible. The admissibility of the statement had been challenged on a variety of grounds going to voluntariness and the fairness of the manner in which it had been taken.

The Court of Appeal observed that although the notice of appeal raised numerous grounds, the only ground advanced before it concerned the failure of the Chief Justice adequately to put the defence case in his summing up to the assessors. In this respect there were five areas of complaint and the Court of Appeal dealt with each of them. It found in one aspect only that the Chief Justice had failed to mention one part of the evidence going to motive. This was evidence of a police superintendent who said in cross-examination that it was not the police view that the petitioner had killed his wife because of religious differences or disputes. It was said by the Court of Appeal that the Chief Justice should have referred to this statement in his summing up once he had decided to refer to the prosecution theory on motive. The Court however applied the proviso to this ground of appeal on the basis that in spite of the error, no miscarriage of justice had occurred.

The petition for special leave to appeal from the decision of the Court of Appeal was filed in March 2000. There was some correspondence between the Supreme Court Registry and the administration of the prison in which the petitioner is now held. Although it is not completely clear from the petition and the notice of appeal which accompanied it, the Court received the petition as a petition for special leave to appeal from the decision of the Court of Appeal. That is the only way in which the petitioner can invoke the jurisdiction of this Court.

Section 122(2) of the Constitution provides:

“(2) An appeal may not be brought from a final judgment of the Court of Appeal unless:

(a) the Court of Appeal gives leave to appeal on a question certified by it to be of significant public importance; or

(b) the Supreme Court gives special leave to appeal.”

The Court of Appeal has not given leave to appeal to this Court under s. 122(2)(a).

The criteria for the grant of special leave are set out in s 7 of the Supreme Court Act 1998. Subsection 7(2) provides:

“In relation to a criminal matter, the Supreme Court must not grant special leave to appeal unless –

(a) a question of general legal importance is involved;

(b) a substantial question of principle affecting the administration of criminal justice is involved; or

(c) substantial and grave injustice could otherwise occur.”

The petition came on for hearing at the beginning of this session on Tuesday, 8 April 2003. The petitioner had, up until 7 April, been unrepresented on the record in this Court. However on the day set down for the hearing of the petition Mr R. P. Singh appeared for him and informed the Court that he had only received instructions on the afternoon of the previous day. He sought an adjournment of the hearing so that he could file amended grounds for the grant of special leave. The Court adjourned the matter until 2.30pm today and directed the filing of any amended petition by 11am.

An amended petition has now been filed in lieu of that previously lodged by the petitioner. It discloses one ground only upon which the grant of special leave is sought. That is expressed thus:

1. Because the High Court of Fiji erred in law and in fact in failing to direct the assessors on the issue of provocation in his summing up.
   
2. Because substantial and grave injustice may otherwise occur.
   

In paragraphs 7 and 8 of the original petition, the petitioner raised a request to be heard on what he called “provocation and harassment”. He alleged that his daughter had committed suicide because of his wife and that one day before she had died the deceased had told him that she would kill all his children by giving them “paraquat”. The following day, according to the petitioner, he and the deceased had gone to change his bullock. He went on to say that he had some problems with his wife. He had not intended to kill her. He only wanted her to cool down. However she kept on saying bad words and tension built up between them. He repeated he had no intention to kill her.

In paragraph 8 of the previous grounds, the petitioner also said:

“At this moment I admit that I commit the offence of murder but there was no reason why? Why I commit the offence is not a plan but I was provoced (sic) and harrased (sic) at times.”

No issue of provocation was raised at the trial because the defence proceeded on the basis that the petitioner had not killed his wife at all and that she had been trampled by bullocks. Nor was any complaint made in the Court of Appeal of any failure by the trial judge to direct on the question of provocation. The petitioner was represented at trial and on the appeal.

At trial the petitioner gave evidence in which he described his wife as “a nice approachable lady” who was “hard working”. He said “I did not kill my wife. I loved her. She was a nice wife. We got on very well.”

In this case counsel for the petitioner relies upon material appearing in the record of interview of 9 November 1995 which was admitted at trial. There the petitioner told police that his wife said, the day before she died, that she had caused their adopted daughter, Shaleshni, to hang herself. She also allegedly threatened to kill the petitioner if she were not paid $5,000. Then, at about 1pm on the same day, she allegedly refused a request by the petitioner that she make Halwa and Gulagula for members of the Assemblies of God who the petitioner was bringing home that afternoon. The petitioner said he had some lunch then went to his shop and brought back six loaves of bread at about 4.30pm. He said his wife complained that bread costs money. He then went and yoked a bullock and ploughed his land, getting back home at 6pm.

The following day was the day his wife died. There was no suggestion of any incident on that day which caused the petitioner to kill his wife.

In the written submissions filed on behalf of the petitioner it was said:

“It is submitted that because of the religious differences, the deceased did not cooperate when prayer meetings were held at the [petitioner’s] house. For the prayer meeting of 8 November 1995, it was the [petitioner’s] wish that Indian delicacies of Halwa and Gulagula be prepared. The deceased objected to this and as a result the [petitioner] had to buy bread and butter and serve to his fellow Church members.

This was an insult to the [petitioner]. In an Indian home, the wife is normally the master of the kitchen and in a rural environment, the wife does not disobey the request of the husband as far as cooking is concerned. It was an ultimate insult that the deceased refused the [petitioner’s] request for Halwa and Gulagula.

Furthermore he submitted that it can be presumed that the above kind of insults would have been normal always when religious conferences took place, especially at the [petitioner’s] home. The Assessors who were local people would have been better persons to decide whether the squabbles resulting from the religious differences amounted to provocation.”

Reliance was placed upon what counsel for the petitioner called “cumulative provocation”. It was said that the actions of the deceased with respect to religious gatherings amounted to cumulative provocation which resulted in the petitioner losing his self-control and that this should have been put to the assessors by the trial judge.

The fact that an accused person does not raise provocation at his or her trial does not necessarily excuse a trial judge from the obligation to direct assessors if provocation is open on the evidence.

Provocation as defined in s 204 of the Penal Code requires a “wrongful act or insult of such a nature as to be likely, when done to an ordinary person ... to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done”.

The fundamental objection to the contention that provocation was open is that there was no suggestion on the record of interview or anywhere else in the evidence relied upon by the petitioner, that the petitioner had suffered a loss of self-control at the time he killed his wife. The fact that he killed his wife does not of itself support an inference of loss of self control. Indeed the manner in which the petitioner killed his wife as described in his record of interview is not consistent with a loss of self-control. Moreover, his wife’s refusal to prepare food for the Assemblies could not constitute a wrongful act or insult. A conversation, the day before the killing, about the reason for his daughter’s suicide and the wife’s threat to kill him, raised only in a record of interview and contradicted by his own evidence at trial, could hardly raise a case fit to go to the assessors on the issue of provocation.

In any event there is no miscarriage of justice as not only was the matter not raised at trial, it was not raised in the Court of Appeal.

The criteria for special leave have not been made in this case and the points raised in the notice of appeal are without merit. Special leave to appeal is refused.

The petition is dismissed

Hon. Justice John von Doussa
Judge of Supreme Court

Rt. Hon. Justice Sir Kenneth Keith
Judge of Supreme Court

Hon. Justice Robert French
Judge of Supreme Court

Solicitors:

Messrs. Kohli and Singh, Suva for the Petitioner
Office of the Director of Public Prosecutions, Suva for the Respondent