Cava v State [2015] FJSC 3; CAV0028.2014 (23 April 2015)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Petition No. CAV0028 OF 14
(On Appeal from Court of Appeal No.AAU19/09

BETWEEN:

ILAISA SOUSOU CAVA
Petitioner

AND:

THE STATE
Respondent

CORAM : Hon. Justice Sathyaa Hettige, Judge of the Supreme Court
Hon. Justice Buwaneka Aluwihare, Judge of the Supreme Court
Hon. Justice William Callanchini, Judge of the Supreme Court

Counsel : Petitioner in Person
M. Delaney for the Respondent

Date of Hearing: 13th April, 2015
Date of Judgment: 23rd April, 2015

JUDGMENT OF THE COURT

SATHYAA HETTIGE, JA
Introduction

1. The appellant was charged in the High Court of Suva together with two others for the murder of Murad Buksh s/o Azad Buksh, Larceny of a taxi meter and unlawful use of Motor vehicle at Lami in the Central Division between 24th of August 2007 and 25th of August 2007 and was convicted of counts 1 and 3 by the trial Judge on 26 November 2008 and the petitioner was acquitted of the charge of Larceny by the trial Judge having considered the mixed opinion of the assessors.
   
2. The appellant was sentenced to a minimum term of 16 years imprisonment for the offence of murder before being eligible for parole and in relation to the offence of unlawful use of motor vehicle the appellant was sentenced to a term of 7 months imprisonment to be served concurrently with the sentence on count 1.
   
3. The petitioner initially sought leave to appeal out of time in the Court of Appeal which was refused by Byrne J because his application was seven months late . However, the petitioner filed an application for leave afresh before the Full Court of Appeal.
   

Grounds of appeal in the Court of Appeal

4. The petitioner filed five grounds of appeal in the Full Court seeking leave to appeal as follows:
   
   • (a) Absence of any direct evidence, reliance on circumstantial evidence.

(this ground of appeal had been abandoned by the petitioner at the hearing)

(b) Failure to issue Turnbull direction

(c) Failure to direct on alibi witness

(d) Reliance on evidence of accused 3

(e) Minimum term imposed.

( this ground too had been abandoned by the petitioner).

5. The Court of appeal had considered the substantive grounds of appeal and granted leave and dismissed the appeal on 6th December 2013 on the basis that the petitioner had not made out the grounds of appeal.
   

The amended grounds of Appeal before the Supreme Court

6. The petitioner by a letter dated 3rd January 2014 filed additional grounds of appeal in court registry well within time and were amended by the petitioner by the letter dated 10th March 2015. It appears on a careful examination of the above the additional grounds of appeal dated 3rd January 2015 are the substantive grounds of appeal filed in the Supreme Court whereas the decision of the Court of Appeal was delivered on 6th December 2013 dismissing the petitioner's appeal.
   
7. We also observe that the amended grounds of appeal dated 10th March 2015 filed by the petitioner have been received in the Registry of the Supreme Court on 11th March 2015 which are as follows:
   
   • (i) The learned trial judge erred in convicting me over the offences on the 1st and 3rd counts as the charges were defective.
     
   • (ii) The learned appellate court erred in law in failing to apply the correct principle on the grounds of appeal raised in relation to:
     
     • (a) The issue of accomplice warning that should be given on the evidence of the 3rd accused ( Manoa Toviriki Qalovaki) and
       
     • (b) The issue of identification by police constable Nacanieli Lomani (PW 3)
       
   • (iii) The learned trial Judge erred in law in failing to warn the assessors during trial on the dangers of convicting upon uncorroborated evidence of the 3rd accused (Manoa Qalovaki) alone who was an accomplice.
     
   • (iv) The learned trial Judge erred in law as the direction given to the assessors during trial relating to the evidence of identification is inadequate and improper.
     
   • (v) The learned trial Judge erred in failing to adequately and properly put the defence case to the assessors during trial.
     
   • (vi) The learned trial judge erred in failing to put to assessors during trial the substantial inconsistencies contained in the prosecution's evidence.
     
   • (vii) The leaned trial judge erred in failing to put and clearly explained to the assessors during trial the relevant law concerning offence we were charged with.
     
   • (viii) The trial judge erred in misdirecting the assessors by stating at page 27, paragraph 3, line 1-4 of the summing up that " if you accept the 3rd accused's sworn evidence as being credible and reliable then you may consider in assessing the guilt or innocence of the 1st and 2nd accused."
     
   • (ix) The learned trial court erred in convicting me on the murder charge as the prosecution failed to prove in court whether who amongst us killed the deceased.
     
   • (x) The learned trial court erred in allowing the proceedings of this matter to take place without the presence of the doctor who actually conducted the Post Mortem in this matter therefore.
     
   • (xi) There are substantial defects contained in the summing up of the learned trial judge.
     
   • (xii) The learned trial judge erred in failing to direct the assessors on the law relating to manslaughter and or the possibility of manslaughter as being an alternative verdict.
     
8. Before dealing with the amended grounds of appeal put forward and relied upon by the petitioner when this matter was heard on 13th April 2015, it is necessary to consider briefly the facts of this case in order to determine the case before us.
   

Factual Matrix in Brief

9. Between 24th of August and 25th of August 2007 the deceased, Murad Buksh who was a young taxi driver was asked by the petitioner and two others to drive to a remote and isolated spot at Veisari where he was robbed, assaulted, strangled with a rope and the deceased was killed and thereafter the deceased was hung by the neck at a bridge. Before the deceased was hung he had been dragged along the ground, a distance of about 27 meters from the bridge. The cause of death was asphyxia as a result of manual strangulation. Constable Nacanieli Lomani who was manning a Roadblock at Delainavesi recognized the petitioner while the petitioner was travelling in the deceased's taxi on the night 24th August 2007. Constable Nacanieli recognized the petitioner because he had lived with them in the Nadonumai Settlement for twenty years.
   

Ground One (1)

10. When this matter was taken up for hearing on 13th April 2015 the petitioner submitted that his charge statement was wrongly taken and it was defective. However, the court observed that the ground of appeal referred to a defective charge and not to a charge statement as alleged and this matter was never raised in the Court of Appeal and therefore the ground 1 of the grounds of appeal fails.
    

Grounds 2, 3, 4 and 8

11. The grounds 2,3, 4 and 8 can be dealt with together as they refer to the one and the same issue relating to the 3rd accused's defence evidence implicating the petitioner in the offence as alleged . In fact it can be seen that the Court of Appeal has very carefully dealt with the issue of 3rd accused's cut-throat defence evidence which the petitioner raises. The Court of Appeal observed that the petitioner's submissions on this issue were misconceived because the 3rd accused was not called by the prosecution to testify on behalf of the prosecution but what the 3rd accused presented was commonly known as cut-throat defence. The 3rd accused gave exculpatory evidence for himself and inculpatory evidence against the other accused who stood the trial and the petitioner.
    

The petitioner contended that the Nacanieli's (PW3) evidence was unreliable because he was a police officer and the petitioner was known as an offender to the witness. The Court of Appeal observed that there was no merit in this argument of the petitioner. The witness (PW3), Nacanieli who was manning the Delainavesi Roadblock testified and said that he recognized the petitioner because they lived in the same community and not because he was a known offender.

12. The trial Judge gave a proper direction to the assessors on the identification evidence at page 57 of the record (volume 1) as follows:
    

"The evidence of SC Nacanieli is very significant because his is the only direct evidence implicating Sousou as being in the deceased's taxi that night other than the 3rd accused's sworn evidence. In considering constable Nacanieli's identification, you must consider the circumstances of the identification. What was the lighting like? How slow was the taxi? How well does he know Moto and Sousou? What distance was he from them? How accurate is his recollection. If you accept that he knew Souse and Moto very well because they come from his settlement, you must ask yourselves whether his identification is reliable. Sometimes we recognize people we know but later find we are mistaken. Sometimes an honest witness makes a mistake in identifying even relatives.

You must consider all the evidence of identification when you consider what weight to put on Constable Nacanieli's evidence.

You may also consider the evidence of WPC Salote who also saw a white taxi with the stickers drive past the check point at 3 am that night with an Indian man driving it and two Fijian men at the back seat. She could not recollect if someone was sitting next to the driver. You will recall that neither she nor Constable Nacanieli were carrying their note books at the time and make no record in them about the event."

13. The trial Judge has given proper directions to the assessors when considering the evidence of identification by Nacanieli (PW3) and what weight should be attached to his evidence and it was a matter for the assessors to decide.

14. It is important to refer to the allegation of the petitioner that the trial Judge failed to warn the assessors on the evidence of the 3rd accused who was an accomplice according to the petitioner. The question arises as to whether in fact the 3rd accused was an accomplice in this case because the prosecution did not call the 3rd accused to give evidence for the prosecution incriminating the petitioner. The 3rd accused has given exculpatory evidence for him.

15. The petitioner's position is that the 3rd accused was an accomplice and the assessors were not properly warned by the trial judge on the danger in accepting his evidence against the petitioner.

In Davies v DPP (1954) 38 C. APP. R. at 11 in the House of Lords Lord Simonds explained meaning of the term "accomplice."

" ...On the case it would appear that the following persons, if called as witnesses for the prosecution have been treated as falling within the category:-

On any view persons who are participles criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting ( in the case of misdemeanours)"

16. In the case of Sachida Nand Mudliar v The State (2008) FJSC 25 CAV0001.2007 (17 October 2008) the court observed that in that case Abhikesh ( accomplice) was not participes criminis in the offence of manslaughter . He was only involved, if at all, in the carrying out the abortion. As such no warning as to the dangers of convicting upon his evidence in the absence of corroboration was necessary.

17. In the Mudliar case para. 70 (supra) the court further observed that " The trial judge did remind the assessors that Abekesh had been granted immunity from the prosecution....... What he failed to do was to explain to the assessors precisely why Abekesh's evidence may have been tainted with improper motive. That is a fundamental aspect of any accomplice warning, but it applies with equal force to those cases in which, though technically an accomplice warning is not required, a warning closely analogous thereto should be given."

18. The learned High Court Judge had not given a direct warning so to speak, that
the evidence of the 3rd accused may be tainted with improper motive, held as required to explain to the assessors in the case of Mud liar ( supra) . However, the assessors had been put on notice by the learned High Court Judge that there is a possibility of one accused falsely implicating the other co-accused, when addressing on the legal position with regard to admissibility of caution interview evidence, which is reproduced below:

" A caution interview is only evidence against the maker of the interview...... This is because suspects when interviewed by the police may blame others in order to deflect blame from themselves."

The learned High Court Judge has also warned the assessors that they may consider the evidence of the 3rd accused in assessing the guilt or innocence of the 1st and 2nd accused, only if they (assessors) accept the sworn evidence as being credible and reliable.

Considering the above along with the rest of the cogent evidence led against the petitioner at the trial, this court is of the view even if a full accomplice warning was given by the learned High Court Judge, the assessors would have come to the same conclusion and as such we conclude that no prejudice or miscarriage of justice has been caused to the petitioner as a result of the non direction on the part of the High Court Judge, referred to above.

Grounds 5, 6, 7, 9, 10, 11, and 12

19. When dealing with all these grounds of appeal it seems that most of the grounds have not been raised in the Court of Appeal and in answering a question put to the petitioner by court he admitted that most of the amended grounds are fresh grounds of appeal. It also appears that these grounds of appeal are an extension of the petitioner's allegation already considered by court. As discussed above the grounds the petitioner relied on have been dealt with in the Court of Appeal and have been considered to be of no merit and substance. We find that the trial judge's directions are adequate and no errors are there to be found in the summing up.

Analysis

20. It must be stated that in this case the 3rd accused had given evidence in his own defence that he was present only because he had been taken at knife point to the scene by the petitioner and the 1st accused and he did not take part in the commission of killing the deceased. The 3rd accused was not a part of the joint enterprise to rob or kill.The 3rd accused also said that he participated in the offence out of fear for his life and threats made to him. However, it was for the assessors and the trial judge to decide on the 3rd accused's evidence. Accordingly the 3rd accused was acquitted of all the charges as he had got involved under duress.

21. In Tamaibeka v State (1999) FJCA 1 AAU15S that " The duty of the Judge in any criminal trial ....is adequately and properly performed ... if he puts before the jury clearly and fairly, the contentions on either side, omitting nothing from this charge, so far as the defence is concerned, of the real matters upon which the defence, but that does not mean to say he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence ..."

22. The petitioner complains in the amended grounds of appeal that there were substantial defects in the summing up. However, we do not agree with the submissions of the petitioner because we are satisfied that the trial Judge has fairly dealt with the defence of the petitioner by giving a correct and balanced summing up. It is also the discretion of the trial judge to guide himself or herself when directing the assessors on the evidence and relevant arguments of both the prosecution and defence without causing any prejudice to any of the parties.

In the present case in her summing up, the trial Judge directed the assessors that they could rely on the 3rd accused's evidence in assessing the guilt or innocence of the appellant. It does not seem from the submissions of the petitioner that he suggested that the said direction was a misdirection. The following direction of the learned trial Judge is reproduced as follows:

"If you accept the 3rd accused's sworn evidence as being credible and reliable they you may consider his evidence in assessing the guilt or innocence of the 1st and 2nd accused...." (At page 70 of the Court of appeal Record.)

23. The Court of Appeal found that the summing up by the trial Judge was correct and there were no serious errors made by the trial judge in his summing up to be corrected which is a task of the appellate courts and not to interfere with the trial Judge's findings of credibility.( See Jai Ram & Others v State Cri.App. No.AAU0017 of 2004S).

24 The petitioner submitted that the witness Nacanieli (PW 3) identified the petitioner while travelling in the taxi going past the checkpoint because the identifier knew him as a known offender. Nacanieli has testified very clearly that he knew the petitioner for a long time because he was living in the same Nadonumai Settlement and not as a known offender.

25. The petitioner strongly submitted that when the trial Judge said to the assessors that they could rely on 3rd accused evidence in assessing the guilt or innocence of the appellants without corroboration and thereby failed to give a proper warning on the cut-throat defence of the 3rd accused implicating the petitioner and Nute, the 1st accused resulting in miscarriage of justice.

26. There is no rule of law which governs this technical area of the law with regard to corroboration of the co accused's evidence given in his own defence. In England there had been several judgments where the issue of corroboration of a co accused's evidence was discussed.

In Peter Barnes and James Richards (1940) 27 Cr. App. R. 154 the head note read as follows:

"Where the prisoners are tried jointly, and one of them gives evidence on his own behalf incriminating a co-prisoner, the prisoner who has given incriminating evidence is not placed in the position of an accomplice nor does the rule of practice with regard to the corroboration of an accomplice apply to such a case . The rule applies only to witnesses called for the prosecution." at P. 166 (emphasis added)

The court further observed at p.166 that "The witnesses whose evidence it is said needed corroboration are Mrs. Hewitt and Mrs.O'Hara. They are not called as witnesses for the prosecution .They went into witness box to give evidence, and they gave evidence on their own behalf, and the rule with regard to corroboration of accomplices does not seem to apply to such a case."

In King v Baskerville (1916) Cri. App. R. p.658 at p. 665 the court observed that " The rule of practice as to corroborative evidence has arisen in consequence of the danger of convicting a person upon the unconfirmed testimony of one who is admittedly a criminal. What is required is some additional evidence rendering it probable that the story of the accomplice is true and it is reasonably safe to act upon it".

In Regina v Julie Mary Ann Francis Cheema No. 91/ 4201/Y3 Court of Appeal , Royal Court of Justice 4th October 1993 Chief Justice of England Lord Tailor of Gosforth
when giving the reasons for their judgments, referred to rules regarding corroboration and observed as follows:

"... This case illustrates par excellence, the highly technical and some think anamolous rules which have by accretion come to govern this area of the law. We note that the Law Commission in their Working paper No. 115, " corroboration of evidence in criminal trials (1990) recommend the abolition the present rule in favor of a simpler form of judicial warning. The Royal Commission on Criminal Justice (1993) echo that recommendation in their report, we would add our support for a review of this area of the law which has become arcane, technical and difficult to convey to juries." (emphasis added)

27. It can be emphasized from perusing an array of judgments where the issue of corroboration of cut-throat defence evidence has been discussed in detail that a summing up by a trial judge should be tailored to the needs of a particular case.

28. It can be further observed from carefully considering the English Judgments that English law does not recognize a rule requiring a full corroboration direction in respect of a co-accused's evidence despite existence of early judgments where the petitioner appears to have relied upon. It is also necessary to mention that in view of the most recent judgments on corroboration issue co-accused's evidence that a co-accused who gives cut-throat defence evidence should not be treated as an accomplice as he is not called as a prosecution witness.

29. In Julie Mary Ann case (supra) the court further observed that " the effect of this considerable case law is to show that in recent years time and again the court has reiterated that although a warning in suitable terms as to the danger of a co-accused having an axe to grind is desirable, there is no rule of law or practice requiring a full corroboration direction."

30. We observe that the evidence of a co-accused given in his own defence cannot be disregarded by court as requirement of a full corroboration warning would devalue his evidence as he is not a prosecution witness. Therefore, we find that the grounds of appeal of the petitioner fail.

Leave Criteria

31. Section 7 (2) of the Supreme Court Act 1998 deals with requirements to be met by an aggrieved party when seeking leave to appeal from the Supreme Court. The provisions contained in the section requires the Supreme Court to be satisfied that any one or more of the threshold criteria set out therein is made out when leave to appeal is granted.

Section 7 (2) 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 criminal justice is involved;

(c) Substantial and grave injustice may otherwise occur.

32. In our opinion the amended grounds of appeal seeking leave to appeal advanced by the petitioner must necessarily meet one or more threshold criteria in section 7(2).

In Dip Chand v State CAV0014/2012 9th May 2012 the Supreme Court observed that in para.34 that:

"given the criteria set out in section 7(2) of the Supreme Court Act No. 14 of 1998 are extremely stringent and special leave to appeal is not granted as a matter of course, the fact the majority of grounds relied upon by the petitioner for special leave to appeal have not been raised I the Court of Appeal makes the task of the petitioner of crossing the threshold requirements for special leave even more difficult."

33. We agree with the submissions of the State that the petition does not disclose a question of general legal importance or a substantial question of principle affecting the administration of criminal justice.

Conclusion

34. Having carefully considered all the written submissions of both the petitioner and State and all the material placed before this court we are inclined to conclude that there is no merit in the application and no substantial or grave injustice has been caused to the petitioner.

35. The petitioner has failed to establish any of the threshold criteria contained in section 7(2) of the Supreme Court Act 1998 and we find no miscarriage of justice or any prejudice has been caused to the petitioner by the trial court or in the Court of Appeal.

36. In the circumstances we are of the considered view that the petitioner's application for leave to appeal should be dismissed.

Orders of the Court:

1. Accordingly the petitioner's application for leave to appeal is dismissed.
2. The judgment of the Court of Appeal dated 6th December, 2013 is affirmed.
   

Aluwihare JA
I have perused the judgment in draft and agree with the reasoning and conclusion of the Judgment of Hettige JA.

Calanchini JA
I perused the judgment in draft and agree with the reasoning and conclusion of the judgment of Hettige JA.

Hon. Justice Sathyaa Hettige
Judge of the Supreme Court

Hon. Justice Buwaneka Aluwihare
Judge of the Supreme Court

Hon. Justice William Calanchini
Judge of the Supreme Court

Solicitors:
Petitioner in person.
Office of the Director of Public Prosecutions for the respondent.