Korovusere v State [2013] FJSC 2; CAV0005.2011 (24 April 2013)

IN THE SUPREME COURT OF FIJI
AT SUVA

CRIMINAL APPEAL NO. CAV0005 OF 2011

BETWEEN :

RUSIATE KOROVUSERE
Petitioner

AND :

THE STATE
Respondent

Coram : Hon. Justice Saleem Marsoof, Justice of the Supreme Court
Hon. Justice Suresh Chandra, Justice of the Supreme Court
Hon. Justice William Calanchini, Justice of the Supreme Court

Counsel : Petitioner in Person
Ms S Puamau for the Respondent

Date of Hearing : 11 April 2013
Date of Judgment : 24 April 2013

JUDGMENT

Justice Marsoof

[1] I have perused the draft judgment of Chandra J and I agree with the reasons and the conclusion reached.

Justice Chandra

[2] This is an application for Review of the decision of the Supreme Court by the Petitioner who was the 2nd Appellant in the Appeal to the Supreme Court and 4th Accused before the High Court.

[3] The Petitioner together with 6 others were jointly charged with one count of murder contrary to Sections 199 and 200 of the Penal Code (Ch.17) and the 8th Accused was charged with one count of accessory after the fact to murder, contrary to Section 388 of the Penal Code (Ch.17) before the High Court.

[4] The Petitioner, the 1st accused and the 8th accused were convicted after trial before the High Court, the Appellant and the 1st accused were sentenced to life imprisonment and the 8th accused was sentenced to 2 years' imprisonment. The 2nd, 3rd, 5th, 6th and 7th accused who were charged for murder on the basis of joint enterprise, were acquitted.

[5] The appeal of the Petitioner, the 1st Accused and the 8th Accused to the Court of Appeal was dismissed by a majority decision of the Court of Appeal.

[6] The application for special leave to the Supreme Court of the Appellant, the 1st Accused and the 8th Accused was dismissed by the judgment dated 21 August 2012.

[7] Section 8 of the Administration of Justice Decree 2009 provides for the Jurisdiction of the Supreme Court:

"(1) 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.

(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.

(3) In the exercise of its appellate jurisdiction, the Supreme Court has power to review, vary, set aside or affirm decisions or orders of the Court of Appeal and may make such orders (including an order for a new trial and an order for award of costs) as are necessary to the administration of justice.

(4) Decisions of the Supreme Court are, subject to subsection (5), binding on the courts of the State.

(5) The Supreme Court may review any judgment, pronouncement or order made by it."

[8] Thus S.8(5) empowers the Supreme Court to review its own judgments. However, the basis of exercising the power of review is not spelt out in the Administration of Justice Decree of 2009. Therefore it is necessary to consider the manner in which the Supreme Court has exercised its power of review in appropriate cases.

[9] It is settled law that the exercise of the powers of review are available in criminal cases after the decision in State v. Eliki Mototabua Review Application CAV 005 of 2009 delivered on 09/05/2012 where it was held that on a plain reading, there is no limitation of the application of Section 8(5) of the Administration of Justice Decree of 2009. This view was endorsed in Li Jun v State; Tan Lu Guang v State [2012] FJSC 7; CAV0017.2007S (9 May 2012).

[10] In Mototabua (Supra) the Supreme Court held that its power to review its own decision could only be exercised in "truly exceptional circumstances" or to "avoid irremediable injustice". The application for review was dismissed in that case as the application did not satisfy these requirements that were necessary to be established for review.

[11] In Li Jun (Supra) although the principle of review was endorsed, no relief was granted as the same points were re-argued or argued in a different way.

[12] In Surendra Prasad v The State 2011 FJSC 13 it was stated that S.8(5) review should never be a means of re-opening a case to rehearse submissions already decided upon. What represents truly exceptional circumstances is of course not able to be defined but would include the discovery of matters proving the occurrence of a substantial miscarriage of justice and proof to the Court that it had previously acted under a misapprehension of the facts or the relevant law. The Court will not accede to any application for review that raises previously determined issues.

Although these decisions have established the principle that the Supreme Court can review its decisions, it is with extreme caution that the Supreme Court would exercise this right and would not exercise same as a matter of course. It would be exercised in only extremely rare situations where there is an irremediable injustice or a grave miscarriage of justice.

[13] The application of the Petitioner presents a situation where the exercise of the powers of review should be considered. The Petitioner in his submissions before Court while reiterating some of the arguments that were made to the Supreme Court in the application for special leave to appeal has made out a ground which needs serious consideration.

[14] The ground made out by the Petitioner is as regards the direction in the summing up of the learned trial Judge in the High Court on the question of the cut off point or withdrawal in relation to joint enterprise where several accused have been charged on the basis of joint enterprise.

The Trial Before the High Court

[15] The Petitioner and six others were charged for murder on the basis of joint enterprise and the 8th accused was charged for being an accessory after the fact. Of the seven accused charged on the basis of joint enterprise, only the Petitioner and the 1st accused were convicted for murder, after a divided verdict of the Assessors with the learned trial Judge agreeing with the majority decision of the Assessors.

[16] The prosecution case was based entirely on circumstantial evidence. The deceased had been arrested while he was at his residence at midnight on 4th June 2007 on an allegation of robbery. The team of police officers who had proceeded to arrest the deceased comprised the 1st to 7th accused. The 1st, 2nd and 3rd accused had entered the house and arrested the deceased. The deceased's mother had known the 1st accused and when asked by her about the cause for the arrest, he had not told her the reason but had promised to bring him back. The deceased had been handcuffed at his home and the 1st accused had told her that he was following the others to make sure they did not assault her son.

[17] The deceased had been taken to Valelevu Police Station and the 1st accused had proceeded with the deceased straight into the crime office. When the deceased's mother had arrived at the Police Station sometime later, she had heard noises coming from the Crime Office. At about 1.00 a.m. she had seen three people sitting on a bench outside the Crime Office and she identified the 4th accused (the Petitioner) as one of them. Sometime later she had seen the 4th accused coming out of the Crime Room entrance and whispering to a police officer in the charge room and had looked at her and her other son who had accompanied her to the Police Station and gone away. She had seen the 4th accused again at the hospital on the next day where they found that the son who was arrested was dead with visible bruises all over the body.

[18] There was evidence from other witnesses who testified at the trial to the effect that voices were heard and the sound of crying coming from the crime office between 1 a.m. and 2 a.m. There was also evidence to the effect that around 3 a.m. a cry had been heard from the crime office saying 'wailei', and between 4 a.m. and 4.30 a.m. sound of loud crying saying "Officer please have mercy on me", "Officer please let me live".

[19] After about 7.00 in the morning the 2nd and 4th accused had been seen sitting outside the crime office looking tired and worried. Later on it had been seen that the deceased had been loaded on to a vehicle which was driven by the 1st accused and the 2nd and 6th accused had been sitting at the back of the vehicle. When the body of the deceased was being loaded on to the vehicle the 4th accused had been seen standing outside the Crime Office. The 4th accused had been seen cleaning the floor of the crime office around 7.00 a.m.

[20] From the evidence placed before Court it transpired that the 4th accused had been seen on four occasions from the time of the arrest of the deceased up to the time that the body had been taken to the hospital. Firstly, with the arresting party at the residence of the deceased, secondly at around 1.00 a.m. coming out of the entrance of the crime room, thirdly at about 7.00 a.m. seated outside the crime room, fourthly, cleaning the crime room floor.

[21] It is significant to note that the 2nd accused who was in the arresting party, who was seen along with the 4th accused seated outside the crime office and who was seen loading the body into the vehicle was acquitted as the majority decision of the Assessors was that he was not guilty with which the learned trial Judge agreed.

[22] It is also to be noted that the learned trial Judge in her judgment in the High Court stated with reference to the 2nd accused that "although the 2nd accused was involved in the conveying of the deceased to the hospital, and in the initial escort, I accept there is reasonable doubt as to his complicity in the unlawful assault in the Crime Office". This does not take into account the evidence that the 2nd accused was seen seated with the 4th accused outside the crime office looking tired.

[23] Further, it is noticed that in sentencing the first accused and the Petitioner, the learned High Court Judge stated thus:

"The evidence against you was that of secondary offenders, that is, that you were part of a joint enterprise to assault Malasebe. There was no evidence that either of you inflicted any of the assaults yourself. It is impossible in these circumstances to apportion responsibility to either offender".

[24] Considering the observations made by the learned trial Judge in the judgment and in the sentence, and also taking into account the fact as to whether Petitioner (4th accused) was involved in the beating up of the deceased in the crime room, when the evidence as regards the Petitioner was that he was present at the time that the deceased was arrested, he was seen outside the crime room as seen by the mother of the deceased around 1.00 a.m. when apparently the deceased was alive, his presence outside the crime room seated with the 2nd accused in the morning around 7.00 a.m. would cast doubt on his involvement in the beating up of the deceased. At least he appears to have been outside the crime room except for a brief period of about 30 minutes (according to his caution interview), when the deceased was inside the crime room. There was no evidence to indicate that he was inside the crime room throughout the period that the deceased was inside the crime room.

[25] This brings about a situation where even if it is assumed that there was a joint enterprise at the time that the deceased was brought to the Police Station or when taken into the Crime Room whether the Petitioner was part of the joint enterprise at any stage thereafter. This would necessitate the consideration of the continuation of the petitioner's participation in the joint enterprise if there was any. Had the Petitioner cut himself off or withdrawn from the joint enterprise at any stage, especially when he was seen outside the crime room while the deceased was inside? This is the ground that is being pointed out by the Petitioner in his application for review which has not been considered by the High Court, by the Appeal Court and also by the Supreme Court in their decisions.

[26] At this point it would be relevant to consider the nature of the summing up of the learned High Court Judge regarding joint enterprise to the Assessors which was as follows:

"There is no direct evidence that any of the accused laid a hand on the deceased. Indeed for some of the accused persons there is no evidence that these accused even entered the Crime Office on the night of 4th June.

Instead the prosecution relies on circumstantial evidence and the doctrine joint enterprise to prove its case. In law, the person who actually delivers the fatal blow in a murder case, is not the only person who is guilty of the murder. Anyone who aids or abets the principal offender is also guilty of murder. Furthermore, when two or more persons get together and form a common intention to do something unlawful together and in the course of doing that unlawful act, another offence is committed which is a probable consequence of the planned offence, then each of those who are part of the plan is also guilty of the resulting offence, even if he or she did not do the act which actually constitutes the offence.

Let me give you an example. If a group of men plan to commit a robbery carrying firearms, and in the course of the robbery the security guard guarding the premises gets shot by one robber, all the robbers are guilty of his murder even if they did nothing to actively contribute to the murder. So the robber standing guard outside and who never enters the premises is guilty of murder as well as the robber who actually fired the shot. This is because when you commit an armed robbery, it is a probable consequence of that common intention that someone will get shot and be seriously injured or killed. This is the doctrine of joint enterprise.

In this case the prosecution says that all accused persons were part of a common intention to bring Tevita Malasebe to the Valelevu Police Station to assault him prior to his interrogation. The prosecution's case is that all the accused either actively assisted in this plan or did nothing to stop the assault,, which, as police officers, they had a duty to do in law, and that the death of the deceased as a result of the assault was a probable consequence of that planned assault for which each accused 1 to 7 must be responsible for,. In considering whether or not there was a joint enterprise involving each accused in this case, ask yourselves:

1. Was there a joint common intention to bring Malasebe to the station to assault him?
2. Was each of the accused in the dock party to that common intention?
3. Was the death of Malasebe as a result of the assault, a probable consequence of the assault?
   

In considering these questions, you may look at all the circumstances of the case led in the evidence."

[27] The above is a fairly comprehensive disposition regarding joint enterprise. But the position of any one of the perpetrators moving out of the crime scene which necessitates the consideration of a cutoff point or withdrawal from a joint enterprise has not been addressed. In the circumstances of the case especially regarding the 4th accused, it was necessary to consider that position. In that respect the summing up was inadequate in view of the fact that the 4th accused had been seen only at the time of the arrest, thereafter outside the Crime Office during the period that the deceased was inside the crime room and still alive, and in the morning again seen outside the crime office when the deceased's body was loaded into the vehicle to be taken to hospital and when the body was in the hospital. In these circumstances there should have been a direction to the Assessors to consider whether the Petitioner would have been a participant in the joint enterprises and continued to be so throughout the period that the deceased was being beaten up, even if it had been considered that he was with the other perpetrators at the commencement and during the scope of the joint enterprise.

[28] In Archbold on Criminal Pleading, Evidence and Practice 2011, at para 18-26-29, the position regarding withdrawal has been very succinctly set out citing several decisions:

"A secondary party may be able to escape liability for aiding, abetting, counseling or procuring an offence if he makes an effective withdrawal before the offence is actually committed. Sloan J.A. in R v Whitehouse [1941] 1 W.W.R.112 (Court of Appeal of British Columbia) said:

"After a crime has been committed and before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility. That must depend on the circumstances of each case but it seems to me that one essential element ought to be established in a case of this kind: where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate from the contemplated crime to those who desire to continue in it. What is 'timely communication' must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that it will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw."

This dictum, as approved in R v Becerra and Cooper, [1975] EWCA Crim 6; 62 Cr.App.R 212ca, and R v Grundy [1977] Crim.L.R. 543, CA was applied in R. v Whitefield, 79 Cr.App.R 36, CA, where it was said that if participation has been confined to advice or encouragement there must at least be communication of the change of mind such as to give unequivocal notice to the effect mentioned in the dictum of Sloan J.A. In R Perman [2009] UKPC 41; [1996] 1 Cr.App.R. 24, the Court of Appeal doubted whether it is possible for a party to a joint enterprise to withdraw therefrom once the contemplated criminal activity has commenced. In R v Robinson [2000] 5 Archbold News 2, CA, it was said that only exceptionally can a person withdraw from a crime he has initiated. To do so, he must communicate his withdrawal in order to give the principal(s) the opportunity to desist rather than complete the crime, and this is so even in cases of spontaneous violence, unless it is not practicable or reasonable so to communicate, as in the exceptional circumstances pertaining in R. v Mitchell and King 163 J>P> 75, CA, where the accused had thrown down his weapon and moved away before the final and fatal blows were struck. And in R v Bryce [2005] EWCA Civ 292; [2004] 2 Cr.App.R 35, CA, it was said that where an act of assistance or encouragement, accompanied by the necessary mens rea was proved, the defendant would only avoid liability if he did a further act that amounted to a countermanding of the earlier assistance and a withdrawal from the common purpose; repentance alone would not suffice'; the fact that his mind was innocent when the crime was committed was no defence.

In R v O'Flaherty, Ryan and Toussaint [2004] 2 Cr.App.R.20,Ca, it was said that a person who effectively disengages or withdraws before the fatal injury is, or injuries are, inflicted is not guilty of murder because he was not a party to and did not participate in any unlawful violence which caused death; to disengage from an incident a person must do enough to demonstrate that he is withdrawing from the joint enterprise; ultimately, this is a question of fact and degree, account being taken, inter alia, of the nature of the assistance and encouragement already given and how imminent the infliction of the fatal injury or injuries is, as well as the action said to constitute the withdrawal; in a case of assistance, it is not an essential pre-requisite of an effective withdrawal that reasonable steps should have been taken to prevent the crime,; and, in a case of spontaneous violence, it is possible, in principle, to withdraw by ceasing to fight, throwing down one's weapons and walking away ...........

Where there is evidence of withdrawal by a secondary party, that evidence should be left to the jury to decide whether it amounts to an effective withdrawal in the particular circumstances. In R v Whitefield, ante, it was held to be an error of law for a judge to rule that in failing to communicate with the police, or take any other steps to prevent the burglary for which he had provided information, the defendant remained liable in law for the burglary even if he had, as asserted, communicated to the other parties his withdrawal from the matter before the offence was committed. A similar situation had arisen in R v Grundy ante.

In Becerra and Cooper, ante, the appellants had been convicted of murder committed during the course of a burglary. B had provided the knife to C shortly before the killing. It was held that B's sudden departure from the scene with the words "Let's go" when surprised by the victim was an insufficient communication of withdrawal. A valid withdrawal could only have been effected in some manner "vastly different and vastly more effective". The court left open the question whether the circumstances were such that physical action with a view to preventing the crime was required if B's prior assistance was to be effectively neutralized. The point was again left open in R v Rook [1993] EWCA Crim 3; 97 Cr.App.R. 327, CA. In principle, it seems clear that the measures necessary to absolve a person from liability as an accessory will vary according to what assistance, encouragement, etc., he has given. If, for example, a party provides the gun for a murder, it is submitted that even the plainest spoken communication to the principal would be insufficient on its own to absolve him from liability; but in each case it should be for the jury to decide whether there has been an effective neutralization.

[29] From the above exposition of the law as has been applied in the English Law, the position regarding withdrawal from the joint enterprise has been considered to be very important. It is a matter that relates to the facts of a case and the decision regarding same should be left to the Assessors and therefore there has to be a direction to that effect where the evidence would be suggestive of such withdrawal.

[30] In the present case, which has rested entirely on circumstantial evidence, the time of entertaining the joint enterprise, as to who inflicted the lethal blows, as to who continued with the joint enterprise were not established with any certainty, the nature of the participation of specially the 4th accused (Petitioner) as far as the causing the death of the deceased was not certain. In such circumstances, the direction to the Assessors regarding withdrawal from joint enterprise would be crucial as his presence in the crime room where the beating up took place was not established except for a period of about 30 minutes, and what was spoken to by the witnesses was about his presence outside the crime room at different times.

[31] In the cases referred to in paragraph [28] above, the presence of the perpetrators of the several crimes was certain and identified unlike in the present case. In such circumstances a general direction on joint enterprise would not be sufficient, and there should have been emphasis on withdrawal from the joint enterprise which was vital, for the Assessors to consider the culpability of the Petitioner.

The Judgment of the Court of Appeal

[32] The majority judgment was on the basis that there was a proper and adequate direction by the learned trial Judge on the charge of murder, circumstantial evidence and joint enterprise, and the grounds of appeal raised before the Court of Appeal failed. However, the point about withdrawal from joint enterprise was not raised and was not considered by the Court of Appeal.

[33] The Court of Appeal had not considered the observations made by the learned trial Judge in her judgment and sentence as regards the fact that there was no evidence that the Petitioner had inflicted any assaults and that the 2nd accused who was acquitted had been seen outside the crime office seated with the Petitioner at about 7.00 a.m. on 5th June and also seen loading the deceased onto the vehicle which took the body to the hospital.

[34] The Court of Appeal had also not considered the fact that the learned trial Judge should have given serious consideration to the fact that there was a divided verdict among the Assessors without endorsing the majority view of the Assessors when delivering her judgment. This aspect was not canvassed before the Court of Appeal.

The Judgment of the Supreme Court

[35] The Supreme Court refused the application for leave to appeal made by the Petitioner, the 1st accused and the 8th accused, as the grounds raised by the Appellants did not meet the threshold of S.7(2) of the Supreme Court Act of 1998.

[36] Before the Supreme Court, the grounds raised by the Appellants were the same grounds raised before the Court of Appeal which included the ground relating to the direction of the learned trial Judge to the Assessors on joint enterprise on a general basis. There too the aspect of withdrawal from the joint enterprise was not canvassed and brought to the attention of the Court.

The present application for Review

[37] As stated above in paragraphs [13] and [14] the present application of the Petitioner has set up a question of law which had not been addressed either in the High Court, Court of Appeal or in the Supreme Court, which is the question relating to withdrawal from joint enterprise which the Petitioner has worded as cut off point of the joint enterprise in his layman's language in his written submissions, as he was appearing in person.

[38] This question of law is a serious question of law as discussed above in relation to the aspect of joint enterprise and which affects the decisions of the High Court, the Court of Appeal as well as the Supreme Court. It is a question which affects the Petitioner and it has caused serious prejudice to him and would amount to a miscarriage of justice if his conviction for murder is allowed to remain.

[39] The submission made on behalf of the Respondent based on the case of A,B,C & D (joint enterprise) v. The Queen [2010] EWCA Crim.1622, set out in the written submissions of the Respondent can be distinguished from the present case as the identity of the several accused in that case had been certain and the only question had been as regards the nature of the acts of the principal offender and its effect on the other offenders who were acting on the basis of a joint enterprise. The present case is completely different where there is no certainty as to who dealt the lethal blows on the deceased and as to when and how they entertained the joint enterprise and continued with same.

[40] Although it is unsafe to hold that the Petitioner was guilty of murder it is necessary to consider whether he could be held liable for any other offence in relation to his conduct on that date.

[41] In the High Court, the 8th Accused was charged on the count of accessory after the fact and was convicted and his conviction was upheld both by the Court of Appeal and by the Supreme Court. His conviction was based on the fact that he had ordered the crime room to be cleaned and that he had directed that the body of the deceased to be taken to hospital which apparently were considered as acts committed by him to conceal the committing of the crime.

[42] The Petitioner also stood in almost the same position, as he was seen cleaning the crime room, had gone to the hospital in the vehicle carrying the deceased's body, and had been seen at the hospital and lied to the hospital nurse that they had found the body lying somewhere. These items of evidence may have been sufficient to find him guilty of the offence of being an accessory after the fact. There was no such charge against him as he was charged with six others for murder.

[43] The Court of Appeal Act in S.22(5) provides for a situation where the Court has the power to substitute for the conviction entered by the High Court a conviction of guilty of any other offence and pass sentence in substitution for the sentence passed by the High Court as may be warranted in law for that other offence. There is no such specific provision in the Supreme Court dealing with appeals to the Supreme Court except that S.7(b) provides that the Supreme Court can instead of dismissing the appeal make such orders as the circumstances of the case require or under S.7 (c) to grant special leave and allow the appeal and make such other orders as the circumstances of the case require.

[44] The powers of review of the Supreme Court have been couched in very wide terms inS.8(5) when it is laid down that "The Supreme Court may review any judgment, pronouncement or order made by it". In considering the scope of these terms, it would be appropriate to consider that in exercising the power of review that the Supreme Court has the jurisdiction to exercise the power laid down in S.8(3) in that the Court can review, vary, set aside or affirm decisions or orders of the Court of Appeal and may make such orders (including an order for a new trial and an order for award of costs) as are necessary for the administration of justice.

[45] Taking the view that the Supreme Court in the exercise of its powers of review in terms of S.8(5) has the power to make such orders as are necessary for the administration of justice, it would be appropriate to consider the liability of the Petitioner for the count of Accessory after the fact as laid down in S. 388 of the Penal Code. There was sufficient evidence against the Petitioner, when compared to the liability of the 8th accused who was charged for that offence, convicted and sentence to two years' imprisonment.

[46] I would in my judgment set aside the conviction and sentence for murder against the Petitioner and substitute in its place a conviction on the count of accessory after the fact in terms of S.388 of the Penal Code and sentence him to two years' imprisonment with effect from 23rd April 2008 and since he has already served that period he should be released forthwith.

Justice Calanchini

[47] I have had the advantage of reading the draft judgment of Chandra J and also agree with the reasons and the conclusion reached.

Hon. Justice Saleem Marsoof
Justice of the Supreme Court

Hon. Justice Suresh Chandra
Justice of the Supreme Court

Hon. Justice William Calanchini
Justice of the Supreme Court