Radininausori v State [2012] FJSC 19; CAV0005.2012 (16 August 2012)

IN THE SUPREME COURT OF FIJI
AT SUVA.

Criminal Appeal No. CAV0005/2012
(High Court Criminal Case No. HAC015 of 2006)

BETWEEN:

RO OLIVINI RADININAUSORI
Appellant

AND:

STATE
Respondent

Coram: Mr Justice Suresh Chandra, Judge of the Supreme Court.
Mr Justice Sriskandaraj Sundaram, Judge of the Supreme Court.
Madam Justice Chandra Ekanayake, Judge of the Supreme Court.

Counsel : Petitioner in Person.
Fotofili L, for the Respondent

Date of Hearing: 8th August 2012.
Date of Judgment: 16th August 2012

JUDGMENT

1. This is an application for special leave to appeal and to extend time for filing the same. Special leave to appeal is sought against the decision of the Court of Appeal dated 26th November 2010 (Goundar,JA, Temo, JA and Madigan, JA) which dismissed the appeal preferred against the judgment of the High Court sitting in Suva (Nazhat Shameem J). The High Court found the Accused guilty and convicted for murder of her new born baby and sentenced to a mandatory term of life imprisonment.

2. The Petitioner is seeking an extension of time for filing an application for special leave to appeal against the judgment of the Court of Appeal delivered on 26th November 2010.

3. Rule 6 of the Supreme Court Rules provides that a petition (for special leave to appeal) and affidavit in support must be lodged at the Court Registry within 42 days of the date of the decision from which special leave to appeal is sought. The application before this Court was filed on 13 May 2012 a period of about one year and four months after the date of the Court of Appeal judgment. Rule 20 (4) of the Supreme Court Rules enables the Court, for good and sufficient cause, to grant an extension of time subject to any conditions that may be imposed.

4. The power to extend the time to file a Special Leave to Appeal Application is discretionary, and has to be exercised judicially, having regard to established principles. The following factors are usually considered when determining an application for an extension of time, namely (a) the length of the delay, (b) the reasons for the delay, (c) whether there is an arguable case on the appeal and (d) the degree of prejudice to the respondent if time is extended.

5. The delay in filing this application is one year and four months. The reason for the delay according to the Petitioner is that from November 2011 she has been tirelessly approaching for legal assistance from Legal Aid and it has been turned down. Thereafter she made this application on 13th May 2012.

I will now consider the merits of this application:

6. The Petitioner was not married and she was pregnant in 2004. Prior to 2004, the Petitioner had given birth to a son in 1996. The Petitioner in her evidence stated that she was shunned and her family did not accept her for having a son in 1996 out of wedlock. It was alleged by the prosecution that the Petitioner murdered the new born, a fully formed baby, in order to conceal her pregnancy. She did not suffer from any mental illness or depression when she killed her baby.

7. The Petitioner’s position was that on the 22nd of July she had a severe case of diarrhoea and on going to the toilet the baby came out accidentally and fell into the pit. She then went to CWM Hospital for after-care. She said that when she gave her statements in the police interview she was weak and confused. She had every intention to raise the child herself.

8. During the Trial in the High Court, the Petitioner was represented by the Legal Aid Commission. The accused pleaded not guilty to the charge of murder of the unnamed new born child. The State called 16 witnesses and tendered 12 exhibits. The Petitioner exercised her rights to give sworn evidence and also called one witness on her behalf.

9. The Prosecution case relied mainly on the content of an interview conducted under caution in the Vunidawa Police Station on the 26th July 2004 four days after the birth of her new baby. Shortly after the interview she was seen by a psychiatrist at St. Giles Hospital, after an hour’s assessment, he expressed his opinion that the mother was not suffering from post natal depression nor any other form of mental illness.

10. The Legal Aid Counsel appearing for the Petitioner (accused) informed court that a voir dire is not necessary. It appears from the court record that no voir dire was conducted to determine the voluntariness or fairness of the interview under caution.

11. In the course of the trial, Counsel for the accused suggested to the interviewing officer that some of the answers obtained in the interview were obtained under oppression or were fabricated. But it was denied by the witness.

12. After the summing up of the learned trial judge the three assessors returned a unanimous guilty verdict on the charge of murder. It was accepted by the learned Trial Judge and the Petitioner was sentenced to serve a mandatory term of life imprisonment.

13. The following grounds of appeal are urged in this Special Leave to appeal application against the dismissal of an appeal preferred against the conviction of the accused in the High Court to the Court of Appeal.

(a) The Court of Appeal erred in its duty to consider if indeed the Trial Judge failed to direct the assessors carefully and in detail on the issue of the voluntariness of the confessions made in the caution interview.

(b) The Court of Appeal further erred by incorrectly approaching its task(s) to consider that the Trial Judge erred in not directing the assessors clearly on the issue(s) of the fabrication of and, the inconsistencies of and/or, contained in the caution interview made by Sgt Ifereimi Savou, who was a prime prosecution witness and upon whose evidence, prosecution relied heavily upon primarily for a conviction.

(c) The Court of Appeal erred in law by failing to make an independent assessment of the evidence before affirming a verdict that was unsafe, unsatisfactory and unsupported by evidence, giving rise to a grave miscarriage of justice.

14. The first two grounds of appeal are based on the failure or inadequate direction of the Learned High Court Judge to the assessors on the voluntariness of the confession and the Court of Appeal’s failure to consider the failure of the Trial Judge’s non direction on the fabrication and the inconsistencies contained in the caution interview.

15. In this background the Petitioner raised a question: Did the Court of Appeal correctly oblige itself to consider whether the Trial Judge erred in law by not giving clear directions and/or ,that of clarity, to the assessors on the issues of the voluntariness of the confessions and the fabrication contained in the caution interview that may have led to create doubt given that there is no trial within a trial (voir dire), and it was open for the defense to challenge and which they did in the course of the trial proper and in the presence of the assessors which may have given rise to a substantial question of principle affecting the administration of criminal justice and also, which has given rise to a substantial and grave miscarriage of justice?

16. The facts of the case reveal that the Accused was represented in the trial by a learned counsel of the Legal Aid Commission. The learned counsel for the Accused moved court to dispense with the trial within a trial (voir dire). This may be a tactical move so that he could challenge the contents of the caution interview during the trial before the assessors.

17. Counsel for the accused challenged the caution interview on the basis that it was fabricated and it has inconsistent statements. He has not suggested that undue influence or force was used on the accused to give the said confessionary statement.

18. It is the duty of the Trial Judge to adequately direct the assessors in relation to voluntariness and fabrication of statements when evidence in relation to confession is relied upon by the prosecution.

19. The Learned High Court Judge in her Summing Up in relation to the caution interview (confession) has directed as follows:

1. As far as the facts of the case are concerned however, which witness to believe and which version of the facts to accept, this is entirely a matter for you to decide yourself.
   
2. The defense however says that the accused was still weak from her medical treatment, she was confused and that the police officer Sgt.Ifereimi made up parts of the interview. What weight you put on this interview is a matter for you. If you think the interview was made up by the police and that the Accused signed a statement she did not make, you cannot put any weight at all.
   
3. At Vunidawa Police Station she was interviewed from 2pm to 3 pm. She said she has been given no food and still felt weak. She said Cpl.Ifereimi rushed the interview and that she did not make the admissions recorded about intending to kill the baby in the toilet.................She said that she agrees with some parts of the interview but not with other parts and that she had never said that she would kill the child.
   
4. The prosecution invites you to rely on the Accused’s statement to the police, saying that it was fairly obtained and is consistent with the evidence of the patholist.
   
5. The defense says that you should disregard the evidence of the interview of the accused to the police, taken shortly after the Accused was discharged from hospital when she was still weak from childbirth, and taken as a result of the fabrication of parts of the interview by Cal. Ifereimi Savou.
   

20. The above directions have sufficiently met the requirement of proper direction to the assessors in relation to the voluntariness of the confession and the complaint of fabrication contained in the caution interview. As the trial judge has given clear and adequate directions to the Assessors in relation to voluntariness and fabrication the Court of Appeal is not obliged to consider these issues in appeal as no substantial miscarriage of justice has in fact occurred.

21. The Court of Appeal in its Judgment dismissing this ground of appeal observed:

[14] It is essential that we first consider (as did the Court in Mati and Singh) whether there was any prejudice or unfairness occasioned to this appellant at trial which prejudice has resulted in a substantial miscarriage of justice.

[15] There was neither a suggestion to the Judge nor to the assessors that the interview under caution was given voluntarily. The cross –examination of the interviewing officer suggested fabrication or even oppressive circumstances and the judge was very careful to leave consideration of these matters to the assessors She said that:

“The prosecution relies on the evidence of this interview to show what the accused did and what her state of mind was on the 22nd July 2004. The defense however says that the accused was still weak from her medical treatment, she was confused and that the police officer made up parts of the interview. What weight you put on this interview is a matter for you. If you think that the interview was made up by the police and the accused signed the statement she did not make you can’t put any weight on it at all.”

22. The third and final ground of Appeal is that the Court of Appeal erred in law by failing to make an independent assessment of the evidence before affirming to a verdict that was unsafe, unsatisfactory and unsupported by evidence, giving rise to a grave miscarriage of justice.

23. When a decision of the trial judge confirming the assessor’s verdict is challenged in appeal, the appellate court should see whether properly directed assessors on the evidence placed before them would have arrived at the same verdict. Even though this function is to identify non direction and misdirection based on the evidence placed before the assessors, to perform this function an independent analyses of evidence is necessary.

24. In this instant case the Court of Appeal observed “The main thrust of the prosecution case at the trial was the content of an interview conducted under caution in the Vunidawa Police Station on the 26th July 2004”. The learned High Court Judge’s direction in relation to the admission of that evidence was considered by the Court of Appeal in detail. This aspect was discussed under grounds of appeal one and two above. The Court of Appeal in its judgment has also considered the evidence of the Consultant Psychiatrist who examined the Petitioner two weeks after the birth and observed that the judge in her summing up gave a fair and balanced overview of his evidence.

25. Assessing the evidence of the Consultant Psychiatrist the court observed;

“[20] the appellant’s claim in her written submissions that the psychiatrist only gave general views as to her pathetic life while concentrating his opinion on her state of mind during the ‘incident’ appears to be at odds with her submission that her pathetic existence impaired her mentally at the time of birth and at the time of her police statement”.

26. The Court of Appeal did make an independent assessment before dismissing the appeal. Therefore the appellant’s third ground of appeal also fails.

27. This is a special leave to appeal application out of time and it is incumbent on this Court to consider the several criteria set out in Section 7(3) of the Supreme Court Act No. 14 of 1998, read with Section 8 of the Administration of Justice Decree 2009, to decide whether this is a fit case for the grant of special leave; Daily Telegraph Newspaper Company Limited v McLaugbin [1904] UKLawRpAC 45; [1904] AC 776;Bulu v Housing Authority [2005]FJSC 1. This section provides that-

"In relation to 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 may otherwise occur.

28. As the grounds of appeal have no merit it would not meet the threshold prescribed by section 7 (3). In those circumstances the application for leave to file out of time a petition for special leave to appeal is dismissed.

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Hon. Justice Suresh Chandra
Judge of the Supreme Court

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Hon Justice Sriskandarajah Sundaram
Judge of the Supreme Court

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Madam Justice Chandra Ekanayake
Judge of the Supreme Court