Verma v State [2015] FJSC 29; CAV0019.2014 (23 October 2015)

IN THE SUPREME COURT OF FIJI
AT SUVA
[CRIMINAL APPELLATE JURISDICTION]

Criminal Petition No. CAV 0019 of 2014
(Criminal Appeal No. AAU 0097/2013)

BETWEEN:

SANJAY SINGH VERMA
PETITIONER

AND:

THE STATE
RESPONDENT

CORAM : Hon. Chief Justice Anthony Gates, President of the Supreme Court
Hon. Mr. Justice Saleem Marsoof, Justice of the Supreme Court
Hon. Mr. Justice Brian Keith, Justice of the Supreme Court

COUNSEL : Mr. G. O'Driscoll for the Petitioner
Mr. M. Delaney for the Respondent

Date of Hearing : 13 October 2015
Date of Judgment : 23 October 2015

JUDGMENT OF THE COURT

Gates, P

1. I have read in draft the judgment of Keith J. I agree with orders proposed and the reasons provided.
   

Marsoof, J

2. I have had the advantage of perusing the judgment of Keith J in draft, and agree with his reasons and conclusions.
   

Keith, J
Introduction

3. Section 22(1) of the Court of Appeal Act provides that if a defendant wishes to appeal to the Court of Appeal from a decision of the High Court in its appellate jurisdiction, he may do so on a ground of appeal "which involves a question of law only". The issue which arises on this appeal to the Supreme Court is whether any of the grounds of appeal on which the petitioner, Sanjay Singh Verma, wanted to rely on in the Court of Appeal involved a question of law only. The single judge in the Court of Appeal held that none of them did, and in consequence he held that the petitioner did not have the right to appeal to the Court of Appeal. He therefore dismissed the petitioner's appeal under section 35(2) of the Court of Appeal Act on the basis that the petitioner's appeal was bound to fail for that reason. That is the decision which the petitioner is challenging on this application for special leave to appeal to the Supreme Court, and this is the Court's judgment following the hearing of that application. I trust that I will be forgiven for referring to the petitioner and the other people who form part of the narrative by their family names from now on for convenience.
   

The facts

4. Verma brought a claim in the Small Claims Tribunal against his neighbour, Semiti Cakacaka. He alleged that Cakacaka had damaged the lights on his garden fence. In the course of the hearing, Verma produced an invoice for $550. The invoice was one of a set of printed invoices from Amit's Auto Electrical, which was the trading name of Amit Prasad. The date and details of the work which had supposedly been done had been written on it in hand, as had what purported to be a receipt signed by Prasad for the $550 from Verma. Verma said that this was the invoice for the works of repair, that he had paid Prasad for the work and that Prasad had acknowledged that the $550 had been paid by signing the invoice. Verma claimed the cost of those repairs from Cakacaka.
   
5. Cakacaka was summoned to appear at the Tribunal. His evidence was that before going to the Tribunal he had gone to see Prasad. He had asked Prasad if Prasad had issued the invoice. Cakacaka's evidence was that Prasad had told him that he had not. Since we have not seen the Tribunal's judgment, we cannot tell whether that part of Cakacaka's evidence was treated as inadmissible (on the basis that it was hearsay) or whether Prasad was then called as a witness. Whatever the position, the Tribunal entered judgment for Verma for $550. It must have thought either that the invoice had been issued by Prasad (despite Cakacaka's claim that Prasad had told him that he, Prasad, had not issued it), or that the repairs had been carried out, and at a cost of $550, even if Verma had attempted to bolster his claim by producing an invoice which he knew was not genuine.
   
6. Verma was subsequently tried in the Magistrates' Court in Suva. He faced two charges: forgery contrary to section 341(1) of the Penal Code, and uttering a forged document contrary to section 343 of the Penal Code. He was alleged to have forged the invoice for $550 (charge 1), and to have uttered it by producing it as evidence at the Small Claims Tribunal intending to deceive the Tribunal into thinking that it had been a genuine invoice which had been issued by Prasad (charge 2).
   
7. The prosecution's case at Verma's trial was based on Prasad's evidence. His evidence in effect was that he had first seen the invoice in question when Cakacaka had shown it to him. The invoice had come from a set of printed invoices in an invoice book which Prasad acknowledged was his, but he said that he had not issued this particular invoice. None of the writing on the invoice – including what purported to be his signature – was his. He said that no repair work had been carried out by him or his staff on Verma's fence. He claimed that he did not even carry out household repairs. He said that he only repaired cars, though he was apparently to resile from that when he was cross-examined.
   
8. On the other hand, the prosecution tendered a witness at the request of the defence who claimed that he had seen Prasad sign the invoice in question. The witness was Riteshwar Aman Lai who said that he had been working for Prasad at the relevant time. His evidence was that on two occasions Verma had asked Prasad to repair the lights on his garden fence. Lai added that Prasad had done that, and that he had seen Verma give $550 to Prasad. It had been Verma, Lai said, who had prepared the invoice – by which he meant, I presume, that it had been Verma who had written on the invoice the details of the work which had been done – but that Verma had done that at Prasad's request, and that Prasad had then signed the invoice.
   
9. The magistrate rejected a submission that Verma had no case to answer. Verma elected not to give evidence, and in due course the magistrate convicted him. The magistrate found that Verma had signed the invoice in question. He rejected Lai's evidence that he, Lai, had seen Prasad sign the invoice. One of his reasons for doing so was because the invoice book from which the invoice in question had come was produced towards the end of the trial – apparently after Lai's evidence and therefore at a time when he could not comment on it. The duplicate carbonised copy of the invoice was blank. The Magistrate thought that that had called for an explanation from Verma, but since Verma had not given evidence, no explanation was forthcoming from him. The inference to be drawn, as the magistrate himself said, was that the original invoice had been removed from the invoice book before it had been signed, and if it had been a genuine invoice, there would have been no need for Prasad to have done that. The prosecution's case was that Verma would have had access to the invoice book as he was a friend and neighbour of Prasad.
   
10. One other fact needs to be mentioned. Prasad swore two affidavits. They were in identical terms, though one was dated 2 December 2009 and the other 6 April 2010. Their contents were along the lines of his evidence in the Magistrates' Court. The use which was made of these affidavits at the trial related not so much to what the affidavits said, but to what Prasad's signatures on them looked like, because when the two affidavits were shown to Cakacaka in the course of his evidence, he said that Prasad's signatures on the affidavits did not look like the signature on the invoice. Whether it was permissible for someone who was not a handwriting expert to give evidence along those lines is questionable, but leaving that aside, the prosecution presumably relied on that as at least some evidence that it was not Prasad's signature on the invoice in question. On the other hand, Prasad's evidence was that although the signature on the first affidavit was his, the one on the second affidavit was not.
    
11. The magistrate sentenced Verma to 2 years' imprisonment. He appealed against his conviction and sentence to the High Court. The appeal against conviction was dismissed, but the judge allowed the appeal against sentence, and reduced Verma's sentence to 9 months' imprisonment. Verma then appealed to the Court of Appeal against the dismissal of his appeal against conviction. As I have said, that appeal was dismissed by a single judge of the Court of Appeal on the basis that none of the grounds of appeal involved a question of law only. Out task now is to look at each of the grounds of appeal relied on by Verma when he appealed to the Court of Appeal to see if any of them do involve a question of law only. There were 7 of them, though the last can be put to one side for the present as it was not really a ground of appeal at all. In it, Verma's lawyers merely reserved Verma's right to add further grounds of appeal if he was advised to do so when the court record became available. No further grounds of appeal were added.
    

The grounds of appeal to the Court of Appeal

12. Ground 1: The magistrate's refusal to recuse himself. In this ground of appeal, it was argued that the judge in the High Court had been wrong to rule that there had been no reason for the magistrate to recuse himself. The argument had two planks. The first was that Verma's counsel had failed to ask the magistrate to recuse himself or to place before the magistrate the correspondence between Verma, the magistrate and the Chief Magistrate when Verma had complained to the Chief Magistrate about the way the magistrate had behaved towards him. The second was that even though Verma's counsel had not asked the magistrate to recuse himself, the magistrate should have done that on his own initiative as he knew that Verma had complained to the Chief Magistrate about his conduct.
    
13. This ground of appeal proceeded on the assumption that the magistrate about whom Verma had complained to the Chief Magistrate was the magistrate who presided over his trial, and that the magistrate knew that the complaint to the Chief Magistrate was about him. That assumption was wrong. The record shows that it was not the magistrate who presided over Verma's trial who Verma had complained about, but the resident magistrate in Suva who was originally due to try Verma before the case was transferred to another magistrate. So there was in fact no reason for that magistrate to recuse himself. But that is not the point. The question is whether this ground of appeal – though factually misconceived – involved a question of law only. It did not. It involved questions of fact, namely whether the magistrate who tried Verma was the magistrate about whom a complaint had been made to the Chief Magistrate, and if so, whether the magistrate who tried him knew about that. It also involved a question of law, of course, namely whether, in the light of such facts as were found, there was at least an appearance of bias which should have led to the magistrate who tried Verma recusing himself. So this ground of appeal did not involve a question of law only.
    
14. Ground 2: The magistrate's refusal to uphold the submission of no case to answer. There are two provisions in the Criminal Procedure Decree which address the function of the court at the close of the prosecution's case. The first is section 178 which applies to trials in the magistrates' court and provides:
    

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused."

The second is section 231(1) which applies to trials in the High Court and provides:

"When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence."

The latter provision, which is not the relevant one for present purposes, has been held to cover the situation where there has been no evidence to prove an essential element of the offence with which the defendant has been charged. The weight of authority in Fiji suggests that it is not wide enough to cover the situation where the evidence is just so weak that the defendant cannot reasonably be convicted on the strength of it. That is to be contrasted with the provision which relates to trials in the magistrates' court, which is the relevant provision for present purposes. There is little authority on how that provision should be applied. The locus classicus for the view that a submission of no case to answer can be made in both situations is R v Galbraith [1981] 1 WLR 1039, though in England there are no statutory provisions similar to sections 178 or 231(1).

15. The submission of no case to answer made on Verma's behalf addressed both situations. First, it was contended that there had been no evidence to prove essential elements of both offences. There had been no evidence that the invoice had been forged on the date alleged in charge 1, or that Prasad's signature on the invoice had been forged by Verma, or that Verma had known that the signature on the invoice had been forged when he produced it in the Small Claims Tribunal, or that he had produced it with intent to defraud. Secondly, it was contended, in effect, that the evidence was so weak that the magistrate, properly directing himself, could not reasonably convict Verma on either charge. Reliance was understandably placed on the fact that the only witness who had claimed to have seen the invoice being signed was Lai, and he had said that it was Prasad who had signed it. The ground of appeal to the Court of Appeal was that the judge in the High Court had been wrong to rule that the magistrate had not erred when he had refused to uphold the submission that Verma had no case to answer.
    
16. This is neither the time nor the place for us to say what is the true test to be applied in Fiji as to when a submission of no case to answer will succeed in a trial proceeding in the magistrates' court, nor for us to say whether we agree with the High Court judge's conclusion or not. The only question for us is whether this ground of appeal involves a question of law only. We think that a determination of a submission of no case to answer does involve a question of law only. It involves considering whether the evidence called by the prosecution is or is not capable of amounting to proof of guilt. The incapability of the evidence to amount to proof of guilt may arise in a number of different ways. It may arise because there is no evidence that an offence has been committed at all. Or it may arise because there is no evidence that the offence, though committed, was committed by the defendant. Those would be examples of the first situation covered by Galbraith. On the other hand, it may arise because such evidence as the prosecution called was too weak, inconsistent, vague or implausible for any sensible person to rely on it. That would be an example of the second situation covered by Galbraith. Either way, the question is whether the evidence is capable of amounting to proof of guilt, and whether the evidence is capable of amounting to proof of guilt is a question of law only. Indeed, the fact that a submission of no case to answer involves the determination of a question of law only was regarded as axiomatic in R v Abbott [1955] 2 QB 497, in which at p 505 Lord Goddard CJ referred to the determination of a submission of no case to answer as a "decision in point of law". By the same token, in R v Garside (1967) 52 Cr App R 85, Winn LJ at p 89 described a submission of no case to answer as a "point of law". Similarly, in R v Cockley [1984] Crim L R 429, the court assumed that the wrongful rejection of a submission of no case to answer would mean that "the judge had been wrong in law." These cases all led the Court of Appeal in Fiji in The State v Mosese Tuisawau (Criminal Appeal No 14 of 1990) to say, without apparent disapproval, that "[i]t has been held that where a submission of no case to answer is made at the close of the prosecution case it calls for a decision of a question of law".
    
17. We discussed this issue with Mr. Michael Delaney for the State in the course of the hearing before us. He gave careful thought to the State's position following the hearing, and he has responsibly taken the view that a ruling on a submission of no case to answer involves a question of law only. The State does not oppose any longer this ground of appeal.
    
18. Grounds 3 and 4: The magistrate's approach to the burden of proof. Grounds 3 and 4 come to the same thing, and I deal with them together. As I have said, the evidence before the magistrate was that the duplicate carbonised copy of the invoice in the invoice book was blank. The magistrate thought that this had called for an explanation from Verma. The criticism of the magistrate was that he had thereby shifted the burden of proof by requiring Verma to explain the discrepancy between the presence of the signature on the original invoice and its absence on the duplicate carbonised copy, and presumably that he had then drawn an inference adverse to Verma from the fact that by not giving evidence he had not given an explanation for that. Of course, this presupposes that the reason for the discrepancy would have been something which Verma would have known about, and the State accepted in its submissions to the judge in the High Court that the effect of the magistrate's approach had indeed been to reverse the burden of proof. The judge in the High Court thought that the only burden which had been shifted onto Verma was an evidential one, not a legal one, and that the magistrate's approach had been permissible.
    
19. Again, this is neither the time nor the place for the Supreme Court to engage with this issue, though it may be that the issue is not so much whether the magistrate impermissibly shifted the burden of proof, but whether the magistrate's approach infringed Verma's right to silence. The question for us is whether the criticism of the magistrate's approach involves a question of law only. In my opinion, it does. There is no question of fact for the court to decide. The Magistrate's approach as set out in his judgment is there for all to see. The issue is whether by commenting on the absence of any evidence from Verma explaining the discrepancy, and by presumably drawing an inference adverse to Verma from that fact, the magistrate either impermissibly reversed the burden of proof or undermined Verma's right to silence. I cannot see how that issue can involve anything other than a question of law only.
    
20. Ground 5: the approach of the judge in the High Court. In lengthy written submissions in support of his appeal to the High Court, Verma's lawyers submitted that the magistrate had erred in a number of respects. Although they could properly be made grounds of appeal in the appeal to the High Court, they were not grounds of appeal in the appeal to the Court of Appeal. That is because all those grounds are acknowledged to involve questions of law and fact. That can be said with a fair degree of confidence because each ground begins with the words "THAT the Learned Trial Magistrate erred in law and in fact ..." (emphasis supplied).
    
21. The ground of appeal to the Court of Appeal was that the judge in the High Court had dismissed these grounds of appeal "without himself analyzing and taking into consideration the facts and the law" before the magistrate. In my opinion, this ground of appeal involves questions of fact and law. The questions of fact relate to the extent, if at all, to which the judge in the High Court (a) analysed the evidence called at the trial, (b) took those facts into consideration in determining whether the appeal should be allowed or dismissed, and (c) applied the law to the facts which he thought the magistrate was entitled to find. The question of law relates to whether the extent to which the judge in the High Court did not do any of those things meant that he failed to approach the issues he had to decide on the appeal properly. The fact that this ground of appeal involves questions of fact and law means that it does not involve a question of law only.
    
22. Ground 6: The comment attributed to the judge in the High Court. In this ground of appeal, it is alleged that the judge in the High Court said to Verma's counsel at the beginning of the hearing: "Is this the same case where the Small Claims Tribunal documents [have] been tampered with? If that is the case, a custodial sentence is warranted." The criticism of the judge in the High Court is that he had predetermined at least the appeal against sentence. In my opinion, this ground of appeal involves yet again questions of fact and law. The questions of fact are whether the judge in the High Court actually said what is being attributed to him, and if he did, or if he said something very like what is being attributed to him, what was it that he was trying to get across. If he did say something along these lines, he had obviously heard about the case. Was he expressing a concluded view about whether Verma would have to go to prison if his appeal against conviction on either of the charges failed? Or was he merely saying that his provisional view was that, in the event that the appeal against conviction on either of the charges was dismissed, it was likely to be case for a sentence of imprisonment? The question of law is whether, in the light of such findings of fact as were made on those issues, it could be said that the judge in the High Court had predetermined the appeal against sentence. The fact that this ground of appeal involves questions of fact and law means that it does not involve a question of law only.
    

Conclusion

23. For these reasons, I would grant special leave to appeal to the Supreme Court on the ground that a question of general legal importance is involved, namely whether a submission of no case to answer involves a question of law only. In accordance with the Supreme Court's usual practice, I would treat the hearing of the application for special leave to appeal as the hearing of the appeal. I would allow the appeal and quash the decision of the single judge of the Court of Appeal to dismiss Verma's appeal to the Court of Appeal under section 35(2) of the Court of Appeal Act, at least in respect of the magistrate's refusal to uphold the submission of no case to answer and his approach to the burden of proof.
    
24. Verma's lawyers are content for his appeal to the Court of Appeal to be remitted to a single judge of the Court of Appeal to consider on their merits the grounds of appeal which I have identified as involving questions of law only, and to determine whether leave to appeal to the Full Court of Appeal should be granted on those grounds. That assumes that leave to appeal to the Court of Appeal is required in an appeal to the Court of Appeal from a decision of the High Court in its appellate jurisdiction. In fact, no such leave is required. All that is required is for the appeal to involve a question of law only. Accordingly, I would remit the appeal to the Full Court of Appeal for it to determine the appeal on its merits, limited to those grounds of appeal which I have identified as involving questions of law only.
    

Hon. Chief Justice Anthony Gates
President of the Supreme Court

Hon. Mr. Justice Saleem Marsoof
Justice of the Supreme Court

Hon. Mr. Justice Brian Keith
Justice of the Supreme Court

Solicitors:
Iqbal Khan & Associates for the Petitioner
Office of the Director of Public Prosecutions for the Respondent.