Rahiman v State [2012] FJSC 24; CAV0002.2011 (24 October 2012)

IN THE SUPREME COURT OF FIJI ISLANDS
AT SUVA

APPELLATE JURISDICTION PETITION
FOR SPECIAL LEAVE TO APPEAL NO: CAV0002/2011

BETWEEN

TAFIZUL RAHIMAN
Petitioner

AND:

THE STATE
Respondent

CORAM: Hon. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Justice Sathyaa Hettige, Judge of the Supreme Court
Hon Justice Sriskandarajah Sundaram, Judge of the Supreme Court

COUNSEL: Appellant in person
Mr Mosese.D.Korovou for the Respondent

DATE OF HEARING: Thursday, 18th October, 2012
DATE OF JUDGMENT: 24th October, 2012

JUDGMENT OF THE COURT

Justice Sathyaa Hettige

(1) The accused Appellant Tafzul Rahiman was charged in the High Court at Lautoka on the 7th March 2005 with the murder of Juliet Burre Sanchez contrary sections 199 and 200 of the Penal Code Chapter 17, said to have been committed on 3rd January 2005 at Nadi in the Western Division.

(2) The appellant was found guilty of murder by the assessors unanimously after trial before the Learned High Court Judge, Kishor Govind and on 20th May, 2008 he was convicted and sentenced to life imprisonment.

(3) The appellant by a letter dated 10th June, 2008 appealed the decision of the High Court against the conviction and sentence to the Full Court of Appeal. The Court of Appeal after hearing the appeal dismissed the appeal on 12th May 2011. The appellant being dissatisfied with the decision of the Court of Appeal by the letter dated 5th June, 2011 has sought special leave to appeal the decision of the Court of Appeal on several grounds of appeal.

BACKGROUND FACTS IN BRIEF

(4) The petitioner was carrying on a business by selling clothes in two business outlets at Nadi with the deceased wife. Both of them were residing in the same house with their two daughters at the time of the incident.

(5) It appears from the evidence that after some time both of them were having differences between them and were quarrelling with each other over the Appellant's suspected involvement with another woman.

(6) According to the cautioned statement evidence led before court on 2nd January 2005, the accused petitioner with his family and some others had gone to Natadola beach on a picnic and having returned home in the evening accused appellant went to meet his friend Hazrat at his house and planned to kill the Appellant's wife in the night. The motive behind the plan to kill the wife seems to have been that deceased was creating problems in the house, and after killing the wife, the petitioner wanted to get her insurance money. The petitioner and his friend Hazrat had been planning the murder of the deceased on 1/1/ 2005 prior to the incident.

(7) On 3rd January 2005 around 2.15am the petitioner and his friend, Hazrat as planned, went to deceased's bedroom where she was sleeping and killed her by placing the pillow and pressing it on the mouth of the deceased causing suffocation. The deceased body was found in the bed room of the deceased on 3rd January 2008 morning. The petitioner originally made a plain statement when the petitioner alleged that he was robbed. After the police investigations were carried out further the petitioner was treated as a suspect and not as a complainant. The lost items were recovered by the police from Hazrat's house.

GROUNDS OF APPEAL

(8) The grounds of appeal on which special leave to appeal was sought were:

(a) That the learned trial judge erred in law when he failed to exclude the confession of the appellant that was not voluntary or was taken in breach of the Constitution.

(b) That the learned trial Judge erred in law when he allowed the prosecution to put evidence of the appellant that came out of the voir dire in front of the assessors and or failed thereafter to declare the trial a mistrial;

( c) That the learned trial Judge erred in law when he directed the assessors as then admitted that earlier trial (voir dire about which I explained to you) he had mentioned going to the hospital only once during the interview and thereby causing miscarriage of justice;

(d) That the learned trial Judge erred in law by not directing the assessors on the question of joint enterprise; and

(e) The learned trial Judge erred in law when he directed the assessors on the inconsistencies in their evidence taking into consideration the evidence coming out of the voir dire and thereby causing miscarriage of justice.

(9) Although the petitioner raised several issues in the petition, at the hearing of this application on 18th October 2012 the petitioner restricted his grounds of appeal to one central point of contention regarding the admission of the Caution Interview evidence. In the trial court a voir dire Inquiry was conducted as to the voluntariness of the cautioned interview since the petitioner challenged the confession he made to the police. The petitioner's contention was that prior to the interview under caution and during the cautioned interview the petitioner was assaulted by the police.

(10) Trial within trial commenced on 28th April and by its order dated 1st May 2008 the ruled that the confessional statement was admissible and allowed the prosecution to lead the cautioned interview evidence at the main trial thereafter. Trial proper proceeded until 20th May 2008 on which date all 4 assessors unanimously returned a verdict of guilty against the petitioner. The petitioner was convicted and sentenced to mandatory imprisonment for life without a minimum term of imprisonment.

(11) The petitioner's appeal to the Court of Appeal against the decision of the High Court was dismissed by the Court of Appeal on 12th May 2011 after full hearing.

(12) It appears from the Court of Appeal Judgment dated 12th May 2011 that the petitioner has urged the same grounds of appeal to the Supreme Court

(13) At the hearing of this appeal, even though the appellant raised several grounds of appeal in a letter addressed to the Supreme Court dated 5th June, 2011 the petitioner, restricted himself to the single point of contention, namely the cautioned interview evidence that was led in evidence against him at the trial court was not voluntary.

SPECIAL LEAVE TO APPEAL

(14) The Supreme Court derives exclusive Jurisdiction to hear and determine appeals from all final judgments of the Court of Appeal under section 8 (1) of the Administration of Justice Decree 9 of 2009. Section 8 thereof provides as follows:

"The Supreme Court has exclusive jurisdiction, subject to such requirements as prescribed by law, to hear and determine appeals from all final judgments of the Court of Appeal.

Subsection 2 of section 8 provides that

"An appeal may not be brought from a final judgment of the Court of Appeal unless:

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

(b) The Supreme Court gives Special Leave to Appeal"

(15) Section 7 (2) of the Supreme Court Act 1998 reads as follows:

"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 justice is involved; or
(c) Substantial and grave injustice may otherwise occur"

(16) We will now consider the petitioner's single point of contention in regard to the caution interview statement which was admitted by the trial judge. The petitioner alleges that the trial judge wrongly allowed the prosecution to lead the caution interview evidence at the trial proper as the petitioner did not give the caution interview voluntarily and should have excluded the confession. We are now obliged to consider his central point of contention on the admissibility of the confession as to whether it falls within any of the threshold criteria in section 7 (2) of the Supreme Court Act 1998.

(17) It was the contention of the respondent that it is only the trial Judge who can make the decision regarding the voice dire evidence whether the petitioner gave the caution interview statement voluntarily or not based on the credibility of witnesses who gave evidence at the voice dire inquiry.

(18) The learned trial Judge in his Ruling on the voir dire inquiry dated 20th May 2008 has referred to the preamble to the Judges' Rules g stated at page 41 of the brief as follows:

".....The admissibility of all confessions made to the police is that they must be voluntary and shown not to have obtained by oppression or unfair conduct. As the preamble to the Judges' Rules states:

It is fundamental condition of the admissibility in evidence against any person equally of any oral answer given by that person to a question put by police officer and of any statements that it shall have been voluntary in the sense that it has not been obtained from him by fear or prejudice or hope of advantage exercised or held out by person in authority or by oppression"

(19) Learned High Court Judge in his summing up to the assessors at page 19 of the appeal brief gave a clear direction as follows:

".....a person can be convicted on a conviction alone. Indeed it has been said that a confession is the best evidence, as the people don't normally make admissions unless it is true. Of course people have been known to make false confessions too. As I have said you can act the confessions, but before you can do so you have to be satisfied beyond reasonable doubt that,

(a) That what is contained in the statement was said
(b) That is the truth."

(20) The trial Judge in the summing up directed the assessors at page 30 of the appeal brief that,

"As I have said, if after considering all the evidence, if you are satisfied that the contents are true and were said you can act on them"

(21) In Director of Public Prosecutions v Ping Lin 1976 AC575 Lord Salmon made the following observations regarding the Judge's task when considering the evidence before him, to assess its implications as follows:

"The Court of Appeal should not disturb the judge's findings merely because difficulties in reconciling them with different findings of fact, on apparently similar evidence, in other reported cases but only if it is completely satisfied that the judge made a wrong assessment of the evidence before him or failed to apply the correct principle-always remembering that usually the trial judge has better opportunities of assessing the evidence than those enjoyed by an appellate tribunal."

(22) In Ajendra Kumar Singh v Reginam 1980 FLR 1 the Court of Appeal adopted the approach in the above case of Director of Public Prosecutions v Ping Lin (supra)

(23) In the Ajendra Kumar case (supra) the court observed at page 10 of the judgment on the issue of credibility of the evidence against the appellant that-

"The learned trial Judge however, obviously was bearing the underlying principle in mind when he went to say that he was satisfied that the statements were freely and voluntarily made.

...........We think it desirable to say, however, that challenges to admissibility of this sort are common occurrences in the criminal Courts. The Ruling which is attacked is that of an experienced trial judge who used words with precision and this context a finding that statements were "freely and voluntarily made" has a particular and technical meaning. It indicates that the Judge has listened to the challenges which have been leveled turned his mind to the appropriate question.

(24) In this case it is the trial Judge who heard the evidence of 6 prosecution witnesses and the petitioner's 5 witnesses at the lengthy voir dire inquiry and it is the learned trial who assessed the evidence in determining the truth and credibility of evidence as to whether the caution interview statement was made freely and voluntarily. The trial Judge believed the prosecution witnesses' credibility of the evidence and ruled that the confession was made voluntarily and was therefore admissible.

(25) In view of the above legal position we do not see any error of law committed by the trial Judge in admitting the confession as admissible and at the trial proper the learned High Court Judge has properly and very correctly directed the assessors and left it to the assessors to determine the truth of the evidence .

(26) In Guston Kean v State [2011] FJSC; CAV0015.2010 (12 August 2011) it was held by this court that-

"In his summing up the learned trial judge quite correctly left the truth of the confession to the assessors after determining admissibility. The truth and weight of the confession was a matter for the assessors to consider after taking into account all the evidence"

(27) The petitioner has alleged both in the Court of Appeal and in the present application for special leave to appeal to the Supreme Court that the trial judge allowed the prosecution to put evidence of the appellant that came out of the voir dire in front of the assessors and or failed thereafter to declare the trial a mistrial. In fact in the supreme Court the petitioner has raised it as an additional ground of appeal.

(28) However, the learned State Counsel submitted that the evidence of caution interview was admitted by the trial Judge as admissible in his Ruling dated 20th May 2008 before the trial proper commenced before the assessors. Caution Interview evidence was allowed by the trial judge to be led by the prosecution before the assessors at the trial proper. Therefore the trial Judge could refer to the caution interview evidence in his summing up. But the trial Judge has given adequate warning to the assessors before they consider the confession of the accused petitioner. The trial Judge specifically in the Ruling on the voir dire inquiry stated at page 41 of the case record that the onus is on the prosecution to establish beyond reasonable doubt that any impugned admission is free and voluntary.

(29) It is to be noted that the Court of Appeal in its Judgment dated 12 May 2012 having considered very carefully the evidence at the voir dire Inquiry in the trial Court and the evidence led at the trial proper before the learned trial Judge and concluded that there was no merit in the appeal and did not want to interfere with the trial court decision.

NEW MATERIAL

(30) The petitioner at the hearing of this application appearing in person brought to the notice of court that the petitioner wanted bring in following new material for the purpose of supporting his application for leave to appeal. The request of the petitioner was made in open court when this matter was taken up on 16th October 2012 for new material was on the following :

(a) Audio Tape evidence
(b) Station Diary Copy
(c) 4th January 2005 medical report
(d) 3rd January 2005 Hospital Day Register
(e) Finger prints from the crime scene
(f) Written submission of appellant on the voire dire
(g) Statement of Sushil (witnessing Officer)

(31) The petitioner was seeking an adjournment on the basis of non availability of documents above referred to.

However, this court was reluctant to grant any adjournment or allow his application for new material to be made available on the basis that the petitioner has failed to place new material in the Court of Appeal. However, this case was adjourned till 18th of October 2012 to enable the petitioner to prepare himself for the hearing after obtaining the case record from the Legal Aid Commission and obtain the services of a legal officer of the Legal Aid Commission.

FRESH EVIDENCE

(32) On 18th October 2012 when this matter was about to be heard as scheduled the petitioner appearing in person sought permission for fresh evidence on the following matters:

(a) The trial judge erred in directing the assessors about the contents of the audio tape when the tape was not played in Court in order to identify the voices on the tape;
(b) Unreasonable Delay in hearing the appellant's case in proceeding to trial;
(c) Some of the missing documents being the medical report of the appellant dated 3/1/2005;

(33) The learned State Counsel strongly objected to the fresh evidence being permitted on the basis that the learned trial Judge has already dealt with the issue of audio tape material to be produced. And also this fresh evidence issue was never raised in the Court of Appeal.

(34) In Dip Chand v State (2012) FJSC 6; CAV 0014/2010 (9 May 2012) the Supreme Court has already gone into the issue of fresh evidence raised by the petitioner in that case very carefully and having considered the law in Fiji Islands and other jurisdictions has rejected the application for fresh evidence.

(35) In that case the petitioner filed a fresh application for special leave to appeal seeking permission of the Supreme Court to adduce fresh evidence. The Supreme Court in Dip Chand case (supra) considered the approach to such applications in cases that have been discussed in High Court of Australia in case of Craig v R 1933 HCA 41; [1933], 49 CLR 429 and Ladd v Marshall [1954] EWCA Civ 1; (1954) 3 All. ER 745.

(36) It is pertinent to refer to the case of Ladd v Marshall (supra) wherein a passage by Lord Denning L.J at page 748 A-B quoted by the Supreme Court which reads follows:

"In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible."

In this case, based on the above conditions, the petitioner was fully aware and should reasonably have been aware of the existence of the fresh material at the trial. Therefore, the petitioner fails to satisfy this court that there is any merit in the application for fresh evidence.

(37) We conclude that the learned High Court Judge in his summing up has given the necessary directions to the assessors in accordance with the law and we therefore refuse the application for fresh evidence made by the petitioner. We also conclude hat the petitioner had a fair trial and there was no prejudice caused to the petitioner in this case.

(38) In the summing up by the learned High Court Judge in the opening remarks to the assessors said as follows:

"You are not bound by what counsel said if you do not agree with it and similarly if I appear to be expressing any view of the facts you must reject such views unless yourselves are of the same opinion. If I omit evidence which you think is important, you must take it into account, just as if I stress evidence which you is unimportant, you must disregard the fact that I stressed it".

(39) It is to be noted that the learned trial Judge has given proper directions to the assessors at the beginning of the case at the trial proper and the petitioner was given the opportunity to cross examine the petitioner and his witnesses.

(40) The prosecution relied on the confession of the petitioner after the truth and credibility of the confession was determined as voluntary and admissible by the trial Judge at the voir dire inquiry. A confession is admissible if it has not been obtained through violence, in fear of prejudice, oppression, threats, promises or other improper inducements. (Ibrahim v R [1914] AC 599 at pages 612 and 614). [Privy Council]

(41) In the circumstances and having considered written submissions of all parties we come to the conclusion that any of the grounds of appeal of the petitioner's application for leave has not satisfied the threshold criteria in section 7(2) of the Supreme Court Act and therefore, should be dismissed

Accordingly, the leave to appeal is refused and the application is dismissed without costs.

Justice Saleem Marsoof
Judge of the Supreme Court

Justice Sathyaa Hettige
Judge of the Supreme Court

Justice Sriskandarajah Sundaram
Judge of the Supreme Court

Solicitors:
Petitioner in Person.
Mr Mosese D. Korovou for Respondent