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Supreme Court of Fiji |
IN THE SUPREME COURT OF FIJI
AT SUVA
[CRIMINAL APPELLATE JURISDICTION]
Criminal Petition No. CAV 21 of 2015
(Criminal Appeal No. AAU 83 of 2012)
BETWEEN:
SURESH CHANDRA
PETITIONER
AND :
THE STATE
RESPONDENT
CORAM : The Hon. Mr. Justice Saleem Marsoof,
Justice of the Supreme Court
The Hon Mr. Justice Brian Keith,
Justice of the Supreme Court
The Hon. Mr. Justice Priyasath Gerard Dep,
Justice of the Supreme Court
COUNSEL : Mr. H. Nagin for the Petitioner
Mr. M. Delaney for the Respondent
Date of Hearing : 8 October 2015
Date of Judgment : 10 December 2015
JUDGMENT OF COURT
Saleem Marsoof, J
[1] I have had the advantage of reading in draft the two following judgments of Dep J and Keith J. In view of the several important
issues in regard to which my two honourable colleagues are in disagreement, I wish to set out in some detail my own reasoning and
conclusions.
[2] In doing so, I do not wish to repeat all the material facts of the case which have been dealt with in detail in the other two
judgments. However, I shall touch on the facts which I consider important for my own reasoning.
[3] Around mid-night on Saturday, 15th January 2011, the petitioner Suresh Chandra, found Farzana Begum, dying or dead with one end of a sulu (a typically Fijian dress) tied to her neck and the other to a rafter on the roof of her flat situated at Dilo Street, Nakasi, The petitioner was tried and convicted for murder and sentenced to a term of life imprisonment with a minimum term of 18 years in prison, and the Court of Appeal affirmed his conviction and sentence.
[4] Mr. Nagin, who appeared for the petitioner at the hearing of this appeal, has strenuously contended that there were grave doubts as to whether this was a case of suicide as opposed to homicide, despite the Court of Appeal stating in paragraph 4 of its impugned judgment that "the cause of death was never an issue at the trial".
[5] It is noteworthy that in the post-mortem report tendered in evidence by Dr. Gupta marked Exhibit P.4, the cause of death of Farzana Begum is stated to be "asphyxia due to or as a consequence of strangulation". The said report was issued by Dr. Goundar, who performed the autopsy, but who for some inexplicable reason did not testify at the trial. In the said report, Dr. Goundar did not express any opinion as to whether the strangulation was the result of suicide or homicide, nor did his report advert to any particulars of morbid or other significant conditions contributing to her death. The absence of any photograph showing the deceased neck, and Dr. Gupta's admission that in cases of hanging, constricting force on ligature will depend on the weight of the deceased, add to the inconclusive nature of the post-mortem report and the testimony of Dr. Gupta who was called as an expert to speak on the report.
[6] The term "strangulation" as used in the post-mortem report is itself neutral as to its cause, and has been defined in the Webster's Ninth New Collegiate Dictionary as "the state of being strangled or strangulated; especially: excessive or pathological constriction or compression of a bodily tube that interrupts its ability to act as a passage." In its ordinary meaning, the word is used to refer to both homicidal and suicidal strangulation.
[7] Even if the post-mortem report is taken to be evidence of homicide as did the trial judge and the Court of Appeal, I share with Keith J the concern that the contents of the post-mortem report marked Exhibit P.4 might be inadmissible hearsay, since Dr. Goundar, who performed the autopsy and issued the report was not called to give evidence in the case.
[8] The report does not come within the scope of section 4 of the Evidence Act, Cap 41 (Ed 1978) as it was not a record relating to any "trade or business" within the meaning of that Act, and in any event, there was nothing on record that would establish any of the circumstances such as the death or unavailability of the maker set out in paragraph (b) of that section to justify the admission of the report. Hence, on the reasoning of the House of Lords in Myers v DPP [1964] 2 All ER 881 and the Court of Appeal of England in R v. Patel, [1981] ER 94, both decisiocisions which were based on legislation then in force in England which are similar to section 4 of the Evidect of Fiji, the contents of the said report would have been inadmissible hearsay.
[9] Of course, it is clear from the record that though the post-mortem report was not one of the Agreed Facts, it was admitted in evidence by agreement of Counsel at the time when Dr. Gupta was called to testify. There is nothing to show that it was agreed to admit the contents of the report, and the tenor of the cross examination of Dr. Gupta would suggest otherwise. Dr. Gupta stated that she was giving evidence only on the report, and that the best person to testify on the contents of the report was Dr. Goundar himself.
[10] In Subramaniam v The Public Prosecutor [1956] UKPC 21; [1956] WLR 965, the Privy Council stressed that a statement or document made by a person who is not called to give evidence, may or may not be hearsay depending on the purpose for which such statement or document is sought to be used. As the Privy Council observed at page 970 of its opinion,
"It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but that it was made." (Emphasis added)
[11] It is therefore unfortunate that the learned trial judge in his summing up, did not explain to the assessors this vital distinction, and allowed the assessors and himself to be guided by the testimony of Dr. Gupta, who when giving evidence, relied on the contents of the post-mortem report marked Exhibit P.4, which was hearsay.
[12] Another witness who referred to contents of the post-mortem report was PC 3660 Gasio. He was the first police officer to arrive at the residence of Farzana on being informed about her death. Towards the tail end of his testimony at the trial, he mentions that the police regarded this as a case of homicide after receiving the post-mortem report, and his testimony based on the contents of the post-mortem report is clearly hearsay. I quote below his testimony, italicising what is clearly hearsay:
"Found a driver to go to scene. Arrived there. I was briefed by Suresh the complainant he sitting on settee. He said already CPR and water and I checked her pulse. None. Then I asked why not remove deceased from rafter. He said when he first saw her she still alive. That is why he removed her and did CPR. I did initial life signs check. I saw sulu hanging from rafter. Left body and notified senior officers. Put deceased in body bag and collected exhibits including sulu. Corporal said she was hanging but when I got there she on the floor. This looks like the sulu I took. This was no longer a suicide after post-mortem. Pathologist said marks on the neck. Conclusion that she had been strangled. That changed our mind from being suicide."(Emphasis added)
[13] Not only did the trial judge fail to warn the assessors that witness Gasio's reference to the post-mortem report and his understanding of what the pathologist Dr. Goundar had concluded might be hearsay, he caused even greater prejudice to the petitioner in his summing up, where he stated:-
"[24] PC Gasio was the Policeman who arrived at the scene. He had received a report of suicide. When he got there he was briefed by Suresh who said that he had applied CPR. She had been hanging from the roof rafter but he had got her down because he had seen that she was still alive. When the PC arrived she was lying on the floor and he saw a sulu hanging from the rafter. After the post mortem, PC says the Police know it was not suicide but homicide because she had been strangled." (Emphasis added)
[14] It is noteworthy that except for the evidence of David Sunil Singh, which will be dealt with in the succeeding paragraphs of this judgment, the circumstantial evidence in the case as a whole was suggestive of suicide rather than homicide. On the evening of 15th January 2011, Farzana had called her parents in desperation, and had thereafter been crying in the darkness of her room and did not talk to either David Sunil Singh or Steven Sachin Singh except for telling David that she does not want to talk as she is upset and will do something to herself. Moments later, the petitioner Suresh Chandra, found Farzana dead or dying with one end of a sulu tied to her neck and the other to a rafter on the roof of her flat, calls David and Steven for help and gets down an ambulance and the police to the flat.
[15] The only witness to testify at the trial that the petitioner Suresh Chandra strangled Farzana Begum to death is David Sunil Singh, who was Farzana's landlord and lived upstairs with his family including his brother Steven Sachin Singh. David stated as follows in his evidence:-
"....Heard a thump in Farzana's flat. I looked down through the hole and saw Suresh was there in her flat. She fell down, then found Suresh holding her neck. They used to fight a lot and he used to hold her neck. Saw him punch her. She fell down. He on top of her holding neck and her mouth. She was moving. I didn't do anything...."
[16] Whether there was sufficient light for David to have seen what transpired in the flat below is the question that arises in the context that David had stated to police in the course of his caution interview conducted on 18th January 2011 that when he looked through the hole he could not see anything as it was very dark. David's brother, Steven Sachin Singh also stated in his testimony at the trial that he had Farzana's lighter with him, and that when the petitioner Suresh told him that "she wants it to light the light below", he ran down and knocked at Farzana's door, but she would not open the door or take the lighter as she was crying and angry. Kamlesh Sami, who occupied the other ground floor flat, has testified that when the petitioner Suresh called "David! David!" he followed David to Farzana's flat, and since it was very dark, he used his phone's light and saw the petitioner applying first aid and trying to revive Farzana. Then he went to his room to get a light bulb.
[17] Under cross-examination, David stated that he could not recall the petitioner trying to resuscitate Farzana mouth to mouth, though he had said so in his caution interview, which was confirmed by Kamlesh Sami in his testimony in court. Another factor that seriously undermined David's testimony is that having made three previous statements to the police in which he mentioned nothing about any killing, it was only in his fourth statement made to the police on 22nd January 2011 that he for the first time came out with the account which he repeated in his testimony in court that he saw the petitioner Suresh strangle Farzana to death. His explanation for not disclosing this vital information to the police earlier and pretending that Farzana had committed suicide was that he was scared for his life.
[18] The prosecution did not lead any evidence at the trial regarding the petitioner's disposition to show that the petitioner was a dangerous criminal to be afraid of, and it was plain was that David changed his story when the police discovered that David had sold Farzana's jewellery to one Prakash at Nausori days after Farzana's death, and confronted David with this material discovery. At first, he told the police that the jewellery was given to him by Aunt, which he later corrected to Cousin, and testified at the trial that Farzana had given the jewellery three weeks before she died for "rent and for food".
[19] In all the circumstances of this case, I am of the opinion that the prosecution failed to establish beyond reasonable doubt on the basis of admissible evidence that Farzana did not hang herself to death and she was murdered. The post-mortem report was inconclusive as to the cause of Farzana's death, and its contents were inadmissible hearsay. I regret that I cannot agree with Keith J that Dr. Gupta's evidence was unchallenged, and in any event, her testimony was entirely based on the hearsay contents of the post-mortem report prepared by Dr. Goundar, who was not called as a witness. Nor can I agree with the observation of the Court of Appeal in paragraph [4] of its judgment that "the cause of death was never an issue at the trial". In a trial for murder, it is for the prosecution to establish every ingredient of the offence beyond reasonable doubt, and just as the accused may remain silent, he is not expected to put in issue any of the ingredients of the offence which the prosecution has to establish by evidence, including the cause of death.
[20] I am also of the considered opinion that the prosecution failed to establish the guilt of the petitioner beyond reasonable doubt. I agree with Dep J that this application for leave to appeal gives rise to several substantial questions of general legal importance which affect the administration of criminal justice, and if leave to appeal is not granted to the petitioner, substantial or grave injustice might result.
[21] Furthermore, I am of the opinion that the learned trial judge failed to direct the assessors and himself in regard to the hearsay content of the post-mortem report marked Exhibit P.4, and agree with Dep J that the learned trial judge did not direct the assessors carefully and in detail with regard to the inconsistencies and omissions in the evidence of David Sunil Singh, Kamlesh Sami and Steven Sachin Singh, who were prime prosecution witnesses. In this context, the following observation of Lord Hailsham in R v Lawrence [1982] AC 510, 519 concerning a trial judge's function in addressing the jury may be equally relevant to a trial judge summing up the case to the assessors assisting the court-
"A direction to a jury should be custom built to make the jury [as much as the assessors] understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides and a correct statement of the inferences which the jury [or assessors] are entitled to draw from their particular conclusions about the primary facts."
[22] It is noteworthy that at the end of the trial in this case the assessors were divided 2-1 in regard to the guilt of the petitioner Suresh Chandra, and the trial judge agreed with the majority of the assessors in a very brief judgment. The question that arises in this context is whether the learned trial judge erred in law by failing to make an independent assessment of the evidence before agreeing with the majority of the assessors, and the Court of Appeal erred in affirming a verdict which was unsafe, unsatisfactory and unsupported by evidence, giving rise to a grave miscarriage of justice.
[23] This aspect of the matter has been carefully examined by Dep J in his judgment, and I agree with his opinion that the learned trial judge as well as the Court of Appeal had erred in this regard. However, in view of some confusion that has surfaced by reason of paragraphs [23] and [24] of the impugned judgment of the Court of Appeal as to the ratio of the decision of this Court in Praveen Ram v State [2012] FJSC 12; CAV0001.2011 (9 May 2012), I consider it useful to clarify what was decided by this Court in that case. In this case, the accused was found guilty of murder by the assessors who were unanimous in their opinion, and the trial judge agreeing with their opinion convicted the accused and imposed a life sentence without fixing a minimum term. The conviction and sentence was affirmed by the Court of Appeal, but on appeal to this Court, the conviction was set aside on the basis that the Court of Appeal had failed to make an independent assessment of the evidence before affirming the verdict of the High Court which was found to be unsafe, unsatisfactory and unsupported by the evidence, giving rise to a miscarriage of justice.
[24] In arriving at its decision, this Court examined in paragraphs [79] and [80] of its judgment the difference between the jury system and the system of trial with assessors that prevails in Fiji, and concluded that in terms of section 299(2) of the Criminal Procedure Code, Cap 21, which was in force at the time of the High Court trial in 2008, as well as under section 237 of the Criminal Procedure Decree, which is currently in force, the trial judge was required to make an independent assessment of the evidence to be satisfied that the verdict of court is supported by the evidence and is not perverse. This Court also noted that if the trial judge disagrees with the unanimous or majority opinion of the assessors, "he shall give his reasons, which shall be written down and be pronounced in open court". This Court was here simply setting out the requirements of the statutory law currently in force. In Praveen Ram, this Court did not, and did not have to in the circumstances of that case, express any view in regard to whether reasons have to be provided by the trial judge for agreeing with the opinion of the assessors.
[25] The confusion that surfaces in paragraphs [23] and [24] of the impugned judgment of the Court of Appeal arises from a failure to distinguish between (1) the requirement of making an independent assessment of the evidence; and (2) giving reasons for disagreeing with the opinion of the assessors. In every case where a judge tries a case with assessors, the law requires the trial judge to make an independent evaluation of the evidence so that he can decide whether to agree or disagree with the opinion of the assessors. The judge is duty bound to make such an evaluation as the decision ultimately is his, and not that of the assessors, unlike in a trial by jury. Once the trial judge makes such an evaluation and decides to agree with the assessors, he is not required by law to give reasons, but he must give his reasons for disagreeing with the assessors. However, as was observed by this Court in paragraph [32] of its judgement in Mohammed v State [2014] FJSC 2; CAV02.2013 (27 February 2014),"an appellate court will be greatly assisted if a written judgment setting out the evidence upon which the judge relies when he agrees with the opinions of the assessors is delivered. This should become the practice in all trials in the High Court."
[26] Applying then the reasoning of this Court in Praveen Ram v State, supra, to the facts and circumstances of this case, I am of the opinion that for the reasons set out in this judgement, the trial judge had failed to make an independent assessment of the evidence in agreeing with the opinion of the majority of the assessors that the petitioner was guilty of murder, and the Court of Appeal in turn had failed to make an independent assessment of the evidence in affirming the decision of the High Court. In arriving at this conclusion, I am mindful of the fact that the function of the Court of Appeal or even this Court in evaluating the evidence and making an independent assessment thereof, is essentially of a supervisory nature, and an appellate court will not set aside a verdict of a lower court unless the verdict is unsafe, unsatisfactory and unsupported by the totality of evidence in the case.
[27] For all the reasons set out in this judgement, I am of the considered opinion that the conviction of the petitioner for murder was unsafe, unsatisfactory and unsupported by the totality of all the evidence in this case. In my view, there was insufficient evidence in this case for reasonable men to be satisfied beyond reasonable doubt that this was a case of homicide as opposed to suicide, and that if the former was the case, that the petitioner Suresh Chandra is guilty of murder.
[28] I am in agreement with the reasons and conclusions of Dep J and agree specifically that the appeal should be allowed, the conviction and sentence quashed and the impugned judgments of the High Court and the Court of Appeal set aside. I also agree with Dep J that the case should be remitted to the High Court for fresh trial.
_________________________________
Hon. Mr. Justice Saleem Marsoof
JUDGE OF THE SUPREME COURT
Brian Keith, J
[29] I have had an opportunity to read in draft Dep J's judgment in this case. With some reluctance, I am unable to agree with his conclusion that special leave to appeal should be given and that the appeal should be allowed. I shall explain why as briefly as I can. I begin by setting out what seem to me to be the relevant facts, and I shall then deal with the appeal under the four headings which in my opinion encapsulate the thrust of the grounds of appeal which were rather repetitious and overlapped somewhat. I also deal in a final heading with an additional concern which Dep J has. I trust that I shall be forgiven for referring to the petitioner and the other people who form part of the narrative by their family names for convenience.
The facts
[30] The deceased was Farzana Begum. She lived in a shack in a squatter settlement in Nakasi. The shack had two floors. She lived downstairs, and her landlord, David Singh, lived upstairs. The petitioner, Suresh Chandra, was her boyfriend. The prosecution's case against Chandra was primarily based on Singh's evidence. His evidence was that on the evening in question, 15 January 2011, Chandra had come to the shack. Chandra and Farzana were drinking upstairs with Singh. Chandra was getting drunk, and he and Farzana had an argument. Singh thought that it was over her infidelity. He claimed that Chandra had punched her in the mouth and that she had then gone downstairs. Some time later, Chandra went downstairs as well. Singh claimed that while Chandra was downstairs, he heard a thump coming from downstairs. There was a sizeable opening in the floor which enabled him to see into the part of the shack downstairs. Singh claimed that he saw Farzana on the floor with Chandra on top of her punching her, holding her by the neck and covering her mouth.
[31] After a while, Chandra returned upstairs, and he and Singh continued drinking. They were joined by Kamlesh Sami who also lived in the shack. At one stage, Singh left for the washroom, and when he returned only Sami was there. Sami told him that Chandra had gone downstairs. Not long after that, Singh heard Chandra call out for him. He went downstairs. He saw Chandra holding Farzana. She was hanging from one of the rafters and had a sulu round her neck. According to Singh, Chandra said that when he had got downstairs Farzana had "tried to jump" and he had "tried to save her". Farzana had no pulse and the police were called. Farzana was pronounced dead in due course. The prosecution's case was that Chandra had strangled her, and had then tried to make it look as if she had committed suicide by hanging herself.
[32] Sami also gave evidence. He claimed to have been there when Chandra had hit Farzana, but he said that Chandra had slapped her on the face, and that the argument between them had been about a phone. He did not see Farzana hanging from the rafter. When he got downstairs after Chandra had called out for Singh, Farzana was lying on the floor with her clothes soaked in urine.
[33] The forensic pathologist who conducted the post mortem was Dr Goundar. He did not give evidence. Evidence about the cause of Farzana's death came from another forensic pathologist, Dr Gupta. In the light of Dr Goundar's findings which he had set out in his post mortem report, Dr Gupta thought that the cause of Farzana's death was asphyxiation as a result of strangulation. She ruled out death by hanging because, according to the post mortem report, there were no ligature marks or "furrows" on Farzana's neck – marks which are present when a death by hanging occurs. As for Chandra himself, he did not give evidence, so no positive case was advanced on his behalf. It looks as if his case was that the prosecution could not rule out the possibility either that Farzana had committed suicide by hanging herself despite Dr Gupta's unchallenged evidence about the cause of death, or if strangulation had been the cause of death, that the prosecution could not exclude the possibility that it had been Singh who had strangled her.
[34] Singh's credibility as a witness was obviously one of the critical issues in the trial. Three things in particular were said to have seriously undermined his credibility. The first was that although he had been interviewed four times by the police, he accepted that on the first three occasions he had not mentioned that he had seen Chandra through the opening holding Farzana by the neck. He had only told the police that in the last of the four interviews. He gave a number of reasons for not having mentioned that earlier. He said that he had been frightened and that in any event Chandra had told him not to say anything. The second thing which was said to have seriously undermined his credibility was that he had initially told the police that he had not been able to see through the opening what was happening downstairs because it had been too dark. It was only when he was interviewed for the last time that he had claimed that it had been light enough for him to see what Chandra had been doing. The third thing which was said to have seriously undermined Singh's credibility was another possible reason why he had been reluctant to tell the police exactly what he had seen. Two days after Farzana had died, Singh sold some of her jewellery. He had not mentioned that to the police either, and he only admitted that he had done that when it was apparent to him that the police had discovered that that was what he had done. He claimed that Farzana had given him the jewellery before her death "as a deposit for rent".
The form of the trial judge's judgment
[35] The majority of the assessors expressed the opinion that Chandra was guilty of murder. The trial judge agreed with the majority, but in his judgment he did not say why. The form of his judgment is heavily criticised by Chandra's legal team. They rely on Praveen Ram v The State [2012] FJSC 12 in which Marsoof JA said at [80]:
"A trial judge's decision to differ from, or affirm, the opinion of the assessors necessarily involves an evaluation of the [entirety] of the evidence led at the trial ... In independently assessing the evidence in the case, it is necessary for a trial judge ... to be satisfied that the ultimate verdict is supported by the evidence and is not perverse ..."
[36] I agree, of course, that since the trial judge is the ultimate finder of the facts, he has to evaluate the evidence for himself, and come to his own conclusion on the guilt or otherwise of the defendant. In my opinion, by far the better practice is for the judge to explain in his judgment what his reasons for his verdict are, and I urge all judges to do that. I unreservedly endorse what Calanchini JA said in Sheik Mohammed v The State [2013] FJSC 2 at [32]:
"An appellate court will be greatly assisted if a written judgment setting out the evidence upon which the judge relies when he agrees with the opinions of the assessors is delivered. This should become the practice in all trials in the High Court."
[37] But it is dangerous to elevate what should be best practice into a rule of law. The best practice about the form of the judge's judgment does not mean that the law compels the judge to do that in every single case. I do not think that the law requires the judge to spell out his reasons in his judgment in those cases in which (a) he agrees with the assessors (or at any rate a majority of the assessors) and (b) his evaluation of the evidence and his reasons for convicting or acquitting the defendant can readily be inferred from his summing-up to the assessors without fear of contradiction.
[38] The critical question, therefore, is whether the trial judge's evaluation of the evidence and his reasons for convicting Chandra can readily be inferred from his summing-up. I think they can. He accepted that the cause of Farzana's death had been strangulation, and he believed David Singh's evidence about what Singh had seen Chandra do on the evening in question, even though Singh had left out a crucial part of that account on the first three occasions on which he was interviewed by the police, had for some time claimed that it had been too dark to see what was happening downstairs and had failed to tell the police that he had been selling Farzana's jewellery.
The absence of a warning
[39] The trial judge criticised for not having warned the assessors about the danger of relying on the evidence of a witness who had made previous inconsistent statements. However, this was not a case in which the witness had made previous statements inconsistent with his evidence in court. Instead, on three of the four occasions on which he had been interviewed by the police, Singh had not mentioned having seen Chandra through the opening holding Farzana by the neck. In those circumstances, the authorities relied on by the defence are not of direct relevance. It was a matter for the trial judge to decide whether in the particular circumstances of the case a warning of some kind was appropriate – perhaps that the assessors should scrutinise that part of Singh's evidence with particular care – perhaps even that it would be dangerous for the assessors to accept that part of Singh's evidence unless they were sure that his explanation for not coming up with that part of his account at the time was true.
[40] I accept that this was a crucial part of the evidence, and that the trial judge may have encouraged the assessors to minimise the significance of Singh's omission by telling them that if they did not believe the evidence he gave about the jewellery, that did not necessarily mean that he had been lying about what he claimed he had seen on the evening in question. But the trial judge did express the view to the assessors that Singh's evidence about how he had come to sell some of Farzana's jewellery was "rather unsatisfactory", and the assessors could, I think, have been in no doubt that they would have to scrutinise Singh's evidence about having seen Chandra holding Farzana by the neck with particular care. A warning to that effect did not need to have been spelt out to them. It would have been obvious anyway.
The cause of death.
[41] In para 4 of his judgment in the Court of Appeal, Basnayake JA said that the cause of death had never been an issue at the trial. He meant by that, I think, that the evidence of Dr Gupta about the cause of Farzana's death had not been challenged at the trial. I acknowledge that the cross-examination of Dr Gupta included questions about the marks you might expect to see on the neck of someone who had hanged themselves. But it was not suggested to Dr Gupta that the absence of any marks on Farzana's neck was just as consistent with her having hanged herself as her having been strangled, let alone more consistent with her having hanged herself than her having been strangled. Despite the length of the submissions filed on behalf of Chandra, Basnayake JA's statement was not challenged, even though Chandra's legal team now wish to challenge the cause of death. Everything I now say on that subject is subject to that overarching point.
[42] The post mortem report did not refer to any marks on Farzana's neck apart from a superficial scratch and a contusion. Although there were no photographs of the neck, there was no evidence to contradict the fact that these were the only marks on her neck. Since Dr Goundar did not give evidence, the contents of the report would have been inadmissible hearsay but for the fact that the report was admitted into the evidence by agreement. The record does not say whether that agreement related only to the authenticity of the report or whether the agreement was that the contents of the report could be treated as evidence of what Dr Goundar saw at the post mortem without him having to be called, but the agreement is likely to have been the latter if Dr Gupta's evidence about the cause of Farzana's death was not challenged at the trial. That is so even if Dr Gupta's evidence about the cause of Farzana's death had been challenged at the trial. That is because Chandra's case would have been, not that there were marks on Farzana's neck, but that the absence of marks on her neck did not mean that she had been strangled.
[43] The next question, then, is what conclusion could be drawn from the absence of any marks on Farzana's neck. That is where Dr Gupta's evidence is important. She said that where someone dies as a result of hanging, ligature marks will be present "below mandible and above thyroid gland", so the absence of ligature marks on Farzana's neck meant that her death had all the hallmarks of death by strangulation. That was accurately summarised by the trial judge in para 26 of his summing-up. That evidence was not hearsay because she was just expressing her own opinion on the conclusion to be drawn from the fact that there were no other marks on Farzana's neck. In the light of her evidence, it was open to the judge and the assessors to conclude that death was by strangulation, not hanging.
[44] The defence point to the fact that in another case – State of Madhya Pradesh v Sanjay Rai (Supreme Court of India, Appeal no 641 of 1998, 25 March 2004) – the evidence was that even in cases of hanging, ligature marks may be absent, and the presence of ligature marks would depend on the nature of the ligature and the length of time the body was hanging for. But the trial judge and the assessors could only go on the evidence in this case, and on that topic the evidence of Dr Gupta was: "Ligature depends on weight, length of time hanging". Chandra's counsel said that that meant that that the presence or absence of ligature marks depended on the weight of the body and the time the body was hanging for, but it could just as easily have meant that the extent of the ligature marks will depend on those things, ie that there will always be ligature marks in cases of hanging, though their extent will depend on the circumstances. In these circumstances, the fact that on the times given in evidence the body may not have been hanging for very long is inconclusive.
The summing-up
[45] The summing-up is criticised on the basis that the trial judge did not draw the assessors' attention to (a) what is said to be the unlikelihood of Chandra returning to the flat and trying to resuscitate Farzana if he had indeed killed her, (b) the possibility that it may have been Singh who killed her as he had both the motive (to steal the jewellery) and the opportunity to do so, and (c) some of .the things which were said to undermine Singh's credibility. But (b) was not put to Singh in cross-examination, and as for (c) the judge did remind the assessors of some of the things which were said to undermine Singh's credibility. He did not remind the assessors about (a), but the judge does not have to remind the assessors of all the points made on behalf of a defendant.
[46] So long as the summing-up covers the important parts of the evidence, the fact that the judge did not remind the assessors of everything will not amount to a successful ground of appeal. The summing-up might have been more comprehensive than it was, but it was sufficient in the circumstances.
Circumstantial evidence
[47] I note the observations made by Dep J about the judge's failure to give the assessors proper directions about how they were to approach circumstantial evidence, but (a) no criticism was made of the directions he gave the assessors on the topic, and (b) those directions in my opinion were adequate. I understand the concerns about what are said to be the "inconsistencies" in Singh's evidence, though I prefer to characterise them as features of the case which could have undermined his credibility in the eyes of the judge. But those "inconsistencies" were for the judge to resolve, and they cannot form a successful ground of appeal if the evidence was such that the judge, properly directing himself in law, could convict. In my view, the evidence was such that the trial judge, properly directing himself in law, could convict Chandra of Farzana's murder.
[48] For these reasons, I would refuse Chandra special leave to appeal, but in the interests of completeness, I want to add two things. Dep J has criticised the approach of the Court of Appeal in a number of respects. But we are a second-tier court, and our function is the same as that of the Court of Appeal, namely to consider whether Chandra's trial in the High Court was fair. We will, of course, derive much assistance from what the Court of Appeal has to say about the trial, but whether or not the approach of the Court of Appeal to that issue can be questioned, our focus has at all times to be on what happened in the trial at first instance.
[49] That leads me on to a second point. Both the Court of Appeal and the Supreme Court are appellate courts. It is not for the Court of Appeal or the Supreme Court to substitute their view of Chandra's guilt or otherwise for that of the trial judge. The function of the Court of Appeal and the Supreme Court is to scrutinise Chandra's trial to see whether it is infected with error. It is not for the Court of Appeal or the Supreme Court to allow the appeal merely because it is thought that Chandra's conviction was against the weight of the evidence, just as it is not for the Court of Appeal or the Supreme Court to dismiss the appeal if it is thought that the weight of the evidence supported Chandra's conviction. Some people might say that the Court of Appeal fell into that trap, and my view that Chandra's appeal should not succeed does not mean that I go along with the Court of Appeal's approach to the case.
_________________________________
Hon. Mr. Justice Brian Keith
JUDGE OF THE SUPREME COURT
Priyasath Gerard Dep, J
[50] The State filed an information in the High Court of Fiji at Suva against the Petitioner Suresh Chandra, alleging that on 15 January 2011 at Nasinu in the Central Division, he did commit the murder of Farzana Begum, an offence contrary to section 237 of the Crimes Decree 44 of 2009. The prosecution is required to establish beyond reasonable doubt that the conduct of the accused caused the death of Farzana Begum and that by engaging in such conduct the accused intentionally or recklessly caused her death.
[51] The case was taken up in the High Court and the assessors by a majority decision found the Petitioner guilty of murder. The Judgment was delivered on 5 October 2012. The Petitioner was sentenced on 8 October 2012 to life imprisonment with a minimum term of 18 years in prisons. The Petitioner on 6 June 2014 appealed against the conviction and the sentence, and a single judge of the Court of Appeal granted leave. The full Court of the Court of Appeal heard the appeal and dismissed the Appeal on 28 May 2015. The Petitioner has now sought special leave to appeal from this Court on the basis of several grounds set out in the petition.
[52] The deceased Farzana Begum was married and separated from her husband. She had a child who was looked after by her parents. During the period relevant to this case she was living in a rented out flat belonging to David Sunil Singh who is the principal witness in this case. The flat in which she was living forms part of a building consisting of three flats. The up stair flat was occupied by David Singh, the landlord. Out of the two down stair flats one was occupied by the deceased and the other by Kamalesh Singh. A wooden floor separated the up stair flat from the down stair flat. Farzana died on 15 January 2011. The Prosecution alleged that the Petitioner, herein after sometimes referred to as the 'accused', caused her death by strangulation. The Petitioner alleged that Farzana committed suicide. Was she strangled to death or did she commit suicide is a live issue throughout this case.
Proceedings in the High Court
[53] The trial commenced on 2- October 2012 and concluded on 5 October 2012. It is useful to refer to the evidence given in this case for the purpose of having a better understanding of the issues involved in this case.
[54] The prosecution called Nashaad Begum, the mother of Farzana as the first witness. In her evidence she stated that on 15 January 2011, Farzana called her and she asked her to come home. She said that she would come home on Monday. She was depressed but later she spoke properly. They conversed for about five minutes. She stated that Farzana was a good daughter. She never threatened to commit suicide. She used to live with them happily in a good way. Under cross-examination she stated that the deceased wore lot of jewellery and she identifies the jewellery shown to her by the police after her death.
[55] The prosecution thereafter called Sunil Prasad Sharma, husband of the previous witness and father of Farzana. He stated that in 2011 Farzana was living in Nakasi. She was a very good person. When she met people she would talk in a very friendly manner. On 15th January she called home between 10 to 10.30 pm. She spoke to his wife on the speaker phone and she said she has a problem at the place where she is residing and he asked her to come home. She said she would come home on Sunday. At about 11.30 pm daughter's landlord gave a call and wanted her son's mobile number. He asked for what purpose he requires it. He then slammed the phone. His son came home in about half and hour's time and he said something had happened to Farzana. He and his son went to Nakasi Police station. He saw Suresh Chandra giving a statement and everyone there said Farzana committed suicide. He asked Suresh as to how it happened. Suresh said Farzana had hanged herself and they took her down. He gave water to drink and gave mouth to mouth respiration. He asked him as to why he took her down without calling the police. Then they went to Nausori Health Centre where her body was lying and he identified Farzana's body.
[56] Sgt 820 Rakesh Mani, was the next witness. He said that he visited the crime scene on 18 January 2011 and took photographs using a digital camera and downloaded them and saved them on the hard drive. These photographs were marked in evidence as PW 2 exhibits.
[57] The prosecution thereafter called David Sunil Singh, the main witness in this case, who was a self-employed person living at Dilo Street, Nakasi. He stated in evidence as follows:-
"On 15 January 2011 when he was at home Farzana who is living in the flats downstairs came to his flats and asked for a mobile to call Suresh. His sister in law gave her mobile phone to her. She stayed at home all day watching movies. She left at 8.30 pm to go for a massage. At about 9.30 she came back with Suresh. They came upstairs to have drinks. Usually they have their drinks downstairs. Suresh was drunk and he was smelling of beer. Suresh gave $40 to his brother (Stephan) to buy beer, cigarettes and one packet of sausages. They were sitting on the porch waiting for Stephan to come. After Stephan returned, they started drinking again. That day Farzana was unhappy as she was quarrelling with Suresh. Suresh accused her of having several boyfriends, and playing with him. Suresh punched her on the mouth and she went down to her flat. Suresh went to the kitchen and Suresh asked him to call Farzana. So, he went to the kitchen where there is a hole. He looked through the hole and called Farzana. She said "I don't want to talk. I am upset and I will do something to myself." He went and told Suresh what she said. Suresh said "no she won't do anything". They continued to drink. David stated that day Farzana drank 2 – 3 bottles and they drank the rest (6 bottles). When her brother came back Suresh inquired from him regarding Farzana's lighter and asked him to go and give it to Farzana. Stephan went down and knocked the door of Farzana's flat and Farzana had told him that she didn't want to talk. He came back and returned the lighter to Suresh. Then Stephan went to his room and David continued to have drinks with Suresh. He sent Kamlesh to get some cigarettes. Kamalesh left. When Suresh and this witness were on the porch his daughter called him and asked for milk. He went to kitchen (They have 2 separate kitchens). He went to his kitchen and put water to boil on the stove and was looking for a bottle brush and went to his mother's room to get the milk. When he looked towards the porch there was no one sitting on the porch. Suresh was not there. He couldn't find the bottle brush. He went to the kitchen to get the brush. He heard a 'thump' sound in Farzana's flat. He looked down through the hole and saw Suresh in her flat. According to this witness "She fell down, then saw Suresh holding her neck. They used to fight a lot and he used to hold her neck. Saw him punch her. She fell down. He on top of her holding neck and her mouth. She was moving. I didn't do anything. Went back to prepare the milk." He gave her child milk and he saw Suresh coming from outside. David was inside the kitchen for about 20 minutes making milk. From time to time he looked towards the porch. Suresh was not there. Suresh came out in 20 – 25 minutes. Then he started drinking the remaining one and half bottles. Suresh and Kamlesh both were on the porch. He went to the wash room and was in the washroom for about 10 -15 minutes. When he came to the porch only Kamlesh was there. Kamlesh said Suresh has gone down. When he was sitting on the porch, Suresh called his name. He asked Kamalesh to go and see why he is calling. He went with Kamalesh to Farzana's flat. He saw Suresh holding Farzana from the back and Suresh said "when I came in, Farzana tried to jump and I tried to save her". He went inside and Suresh asked him to remove the clothes from the neck. He tried but couldn't. Sulu was tied around her neck and the other end was tied to a rafter, he couldn't remove it. He took off the sulu from the neck. Then Suresh asked him to call an ambulance. He called the police. Police arrived in about 30 minutes' time. Suresh was excited – He was trying to see whether she is alive. He was not behaving well. They checked her pulse to see if she is alive. There was no response. Police came and took the body to Nausori Hospital."
[58] The prosecutions next witness was Kamlesh Sami alias Papu, the tenant of one of the flats belonging to David. He stated as follows:-
"... ... On 11 January 2011, David, Suresh, Farzana and himself, were drinking beer on the porch. Suresh and Farzana had an argument regarding Farzana's boyfriends. Suresh said. "Fucking around here and there". They kept shouting for about 20 minutes. Suresh gave a phone to Farzana. He slapped Farzana on the face. Farzana put the phone on table and went downstairs. Then he went to a shop to buy cigarettes. David and Suresh were still on porch. When he returned after 30 minutes, Suresh and David came back to the porch from different directions. Suresh went down again saying that he is going to sleep. David and he remained in the porch. David went to wash room came back from the wash room and ask where Suresh is. He said that he has gone down. Then Suresh called "David David". This was about 3-4 minutes after Suresh went down. David went down to see what has happened. He followed him few minutes later. He saw Farzana lying on floor, with clothes all wet smelling of urine. He touched her hand and there were no pulse. So David called the Police. He went to his room to get a light bulb. They called the Police and police arrived in thirty minutes time."
[59] Under cross-examination this witness stated that it was dark inside the flats and he had to use the phone light to see as to what has happened. He stated that with the light coming from outside, the inside of the flat could not be seen.
[60] The next prosecution witness was Steven Sachin Singh, brother of David. He stated that Suresh wanted him to return the lighter to Farzana. He went down stairs and knocked at the door. She was crying and refused to open the door. He went back and gave the lighter to Suresh and went back to his room.
[61] PC 3660 Gasio testified thereafter, and stated that he received information regarding a case of suicide and he visited the scene. He was briefed by Suresh, the complainant who was sitting on a settee. He said that he had already given CPR and water and he checked her pulse. Then he asked him as to why the deceased was removed from the rafter. Suresh said that when he first saw her she was still alive and that is why he removed her and did CPR. He did an initial life signs check. He saw a sulu hanging from the rafter. He notified senior officers. He put the deceased in a body bag and collected exhibits including the sulu and took it to the hospital. He stated that after the post mortem examination it was revealed that this is not a case of suicide. The Pathologist said that there are marks on the neck. The conclusion was that she had been strangled. That changed their mind from considering this case as a case of suicide.
[62] Corporal 217 Satish Lal (PW8), was called next and he stated in evidence that he visited the scene of murder and at the station he interviewed the accused under caution and after the interview he was released. He recovered jewellery from a jeweller to whom David had sold jewellery belonging the deceased. He also stated that Corporal Patricia Liga took photographs for the post mortem examination.
[63] Thereafter, pathologist Dr. Abha Gupta, MBBS (Path) India, MB (Path), who had performed more than one thousand post mortem examinations, gave evidence based on the report submitted by Dr Dr Ramaswamy Ponnu Swamy Goundar, who had conducted the post mortem examination. She stated in evidence that the cause of death was asphyxia due to strangulation.
[64] After leading the medical evidence the prosecution closed its case. The accused opted to remain silent. After the summing up of the Learned High Court Judge, the assessors by a majority opinion (two assessors as against one) expressed the opinion that the accused was guilty of murder.
The judgment of the High Court Judge
[65] The learned High Court Judge in his judgment dated 5 October 2011 stated that:
"(2) In the majority opinion of three assessors you have been found guilty of the charge. The case as prosecuted was a largely circumstantial case, and as such the circumstantial evidence against you is strong.
(3) I agree with the majority verdict of the assessors and find you guilty as charged. You are convicted accordingly. That is the judgment of the court."
The Grounds of Appeal
[66] The Petitioner on 6 June 2014 appealed against the conviction and sentence and a single Judge of the Court of Appeal granted leave and the appeal was taken up before the full bench. The Petitioner submitted the following five grounds of appeal:
1. The learned trial Judge has erred in law and in fact in not adequately directing/misdirecting that the prosecution evidence before the court proved beyond reasonable doubt that when there were serious doubts in the prosecution case and as such the benefit of the doubt ought to have been given to the appellant.
2. The learned trial Judge has erred in law in not analysing all the facts before him before he made a decision that the appellant was guilty as charged on the charge of murder. Such error of the learned trial Judge in law by failing to make an independent assessment of the evidence, before affirming a verdict which was unsafe, unsatisfactory and unsupported by evidence, has given rise to a grave miscarriage of justice.
3. The learned trial Judge has erred in law and in fact in not directing/and/or adequately directing the Assessors and himself on the previous inconsistent statements made by David. The learned trial Judge ought to have directed the Assessors and himself that when a witness is shown to have made previous statements inconsistent with the evidence given by the witness at the trial, he ought to have directed the Assessors that the evidence given at the trial should be regarded as unreliable. The failure to do so caused a substantial miscarriage of justice.
4. The learned trial Judge has erred in law and in fact in not directing and/or adequately directing the Assessors and himself on the serious contradiction between David and Kamlesh whereby David who was the main prosecution witness' evidence was completely discredited during the cross-examination by the appellant's counsel. Failure to do so caused a substantial miscarriage of justice.
5. The learned trial Judge has erred in law and in fact in not directing himself and or the Assessors to refer to in the summing up the possible defence on evidence and as such by his failure there has occurred a substantial miscarriage of justice.
Judgment of the Court of Appeal
[67] The full Court of the Court of Appeal heard the appeal and dismissed the Appeal on 28 May 2015. In paragraph 33 of the judgment it was held that:-
"[33] With all these infirmities I am of the view that no prejudice was caused to the appellant. The learned Judge in both his judgment and sentencing decision has given a short analysis as to why he agreed with the Assessors in convicting the appellant. While considering all the evidence that was led in this case I am of the view that the judgment is correct and fair and thus has caused no miscarriage of justice. Hence I am of the view that appeal is without merit."
Petition for Special Leave to Appeal
[68] The Petitioner sought special leave to appeal from the Supreme Court as required under 98 (4) of the Constitution which states that 'An appeal may not be brought to the Supreme Court from the final judgment of Court of Appeal unless the Supreme Court grants leave'.
[69] Under section 7 (2) of Supreme Court Act No.14 of 1998 in relation to a criminal matter Supreme Court must not grant special leave unless-
(a) a question of general legal importance is involved;
(b) substantial question of principle affecting the administration of criminal justice is involved;
(c) substantial or grave injustice may otherwise occur.
[70] Petitioner submits that his special leave to appeal satisfy the criteria laid down in section 7 (2) of the Supreme Court Act. I have carefully considered the grounds of appeal contained in the petition and the written submissions filed by both parties and the oral submissions made at the hearing. I am of the opinion that the Petitioner had satisfied the criteria laid down in section 7(2) of the Supreme Court Act No 14 of 1998. Therefore I grant special leave and proceed to hear the appeal.
[71] The Petitioner in his Petition dated 8th July 2015 based his Petition on numerous grounds enumerated under paragraphs 3 (a) - (t).The principal grounds upon which this Petition is based are:-
(a) The Court of Appeal erred in law in not properly addressing the Grounds of Appeal.
(b) The Court of Appeal erred in law in wrongly purporting to over-rule or not follow the recent Supreme Court decision in Praveen Ram v The State; Criminal Appeal CAV 0001 of 2011.
(c) The Court of Appeal erred in law in wrongly purporting to distinguish and not following case of Gyan Singh v R. (1963) 9 FLR 105.
(d) The Court of Appeal erred in law in wrongly applying the case of Jagdishwar Singh & Another v R. (1962) 8 FLR 105 to the present case.
(e) The Court of Appeal erred in law in wrongly purporting to review the facts and wrongly making findings on credibility and additional facts and not giving any weight to Petitioner's evidence and relied more on David Sunil Singh's evidence when his statements were not consistent with his evidence.
(f) The Court of Appeal erred in law in relying on evidence of David Sunil Singh when this was vague, unreliable, motivated by his own dishonesty and contradictory and it was unsafe to convict on his evidence.
(g) The Court of Appeal erred in law in not holding that the conviction in this case was, in any event, unsafe and the Petitioner should have been given the benefit of the doubt as the assessors were not properly directed by the Trial Judge in relation to the inconsistent statements of David Sunil Singh and the rule relating to previous inconsistent statements.
(h) The Court of Appeal erred in law in not holding that the previous statements of David Sunil Singh only contained omissions and were contradictory.
(i) The Court of Appeal erred in law at paragraph 30 of the judgment by giving much emphasis and weight to David Sunil Singh's evidence that there was enough light for him to identify the Petitioner when the other witness Kamlesh Sami said it was dark and they used the mobile phone and fixed the bulb to get light. The evidence of this two prosecution witnesses was clearly contradictory and raised serious doubts in the case.
(j) The Court of Appeal erred in law in not given any weight to the time taken by David Sunil Singh to make the baby's milk was unreasonably long and this coupled with the fact that he had managed to take and sell the Deceased's jewellery raised serious doubts in this case against the Petitioner.
(k) The Court of Appeal erred in law in not giving any weight as to how David Sunil Singh obtained the deceased's jewellery and sold the same especially when he did not inform the police of this in his first statement.
(l) The Court of Appeal erred in law in giving credit to David Sunil Singh's evidence when his evidence was seriously challenged in cross-examination and his own 4 previous statements to the Police were contradictory.
(m) The Court of Appeal erred in law in holding that the evidence produced was very strong to make out a case against the Petitioner and this strongly prejudiced the Petitioner.
(n) The Court of Appeal erred in law in not setting aside the Petitioner's conviction even though it held that the learned High Court Judge had not assisted the Assessors by way of analysing and drawing inferences to assist them in coming to a correct conclusion.
(o) The Court of Appeal erred in law in holding that despite several infirmities in the case no prejudice was caused to the Petitioner.
(p) The Court of Appeal erred in law in not properly analysing the evidence of the Pathologist and wrongly holding that the death was due to hanging and that the cause of death was not an issue at the trial.
(q) The Court of Appeal erred in law in failing to properly consider the Police statements of Steven Sachin Singh and Mrs Vulaco.
(r) The Court of Appeal erred in law in not properly considering the timing issues relating to the case especially in light of the evidence of David Sunil Singh, Kamlesh Singh, P.C. Gasio and the Police statements of Steven Sachin Singh and Mrs Vulaco.
(s) The Court of Appeal erred in law in holding that injury to the scalp was caused with a blunt instrument when there was no evidence as to what this blunt instrument was and no evidence was led by prosecution on this and there was a statement by David Sunil Singh that the Deceased was involved in an accident days before her death. This could have caused the injury to the scalp.
(t) The Court of Appeal erred in law in accepting the circumstantial evidence was sufficient to dismiss the Petitioner's Appeal and this has seriously prejudiced the Petitioner.
[72] These grounds could be crystallised into four grounds and accordingly I have reformulated grounds under following headings given below:-
(1) Did the Court of Appeal err in law in not properly addressing the grounds of appeal?
(2) Did the Court of Appeal err in law in not setting aside the Petitioner's conviction even though it held that the learned High Court Judge had not assisted the assessors by way of analysing and drawing inferences to assist them in coming to a correct conclusion?
(3) Did the Court of Appeal err in law when it did not properly analyse the evidence of the pathologist and wrongly held that there was nothing to indicate that the death was due to hanging and the cause of death not an issue at the trial?
(4) Did the Court of Appeal err in law when it wrongly purporting to overrule and not follow the decision of the Supreme Court in Praveen Ram vs State [2012] FJSC 12; CAV0001.2011 (9 May 2012)?
(1) Did the Court of Appeal err in law in not properly addressing the grounds of appeal?
[73] The Petitioner submits that the Court of Appeal at the hearing did not properly address the grounds of Appeal. Petitioner alleged that the trial judge had made improper directions relating circumstantial evidence and relating to contradictory statements made by witness David Sunil Singh. These raised questions of general legal importance and substantial questions of principle affecting the administration of criminal justice which, unless remedied, will cause substantial and grave injustice to the Petitioner.
[74] The Petitioner is urging this court to consider grounds 3 and 4 of the grounds of appeal submitted to the Court of Appeal wherein it was alleged that the trial Judge had failed to give necessary directions regarding the inconsistencies of the evidence of David Singh and his credibility and the contradiction between his evidence and that of Kamalesh.
[75] It is appropriate at this stage to consider the inconsistencies and infirmities in David Singh's evidence. David Singh was considered as an eye witness and the main witness for the prosecution.
(a) David admitted that he had given four statements to the police and only in his fourth statement recorded on 22 January 2011, he stated that he saw Suresh holding the neck and mouth of Farzana. This omission or inconsistency relates to fundamental aspect of his evidence.
(b) Prior to making the fourth statement he was arrested by the Police for selling the jewellery belonging to Farzana. When confronted he had lied as to how he got the jewellery.
(c) He was treated as a suspect and his statement was recorded under caution. It is the position of the defence that in order to save himself he falsely implicated the accused.
(d) David first said that he could not see the inside of the deceased's flat through the gap in the wooden flow as there was no light. Then in his last statement and evidence in court he said that he could see inside of the flat.
(e) David did not mention about the jewellery belonging to the deceased in any of the statements until he was caught selling them just two days after the death of the deceased.
(f) David in his statements stated that the Petitioner tried to resuscitate her. He omitted to state this in his evidence.
(f) The conduct of David when he saw the Petitioner holding the mouth and neck. As a reasonable man he should have raised cries and alerted others.
[76] Petitioner submits that as David is the principal witness in this case, proper directions should have been given to the assessors as to how they should assess his evidence. The trial judge had failed to give proper and adequate directions.
[77] As stated in State of Bihar vs. Rada Krishna AIR [1983] SC. 684 "One of the most difficult tasks of a Judge is to assess and evaluate the evidence of a witness and decide whether to believe or disbelieve it."
[78] In the past, the courts applied the maxim 'Falses in Uno Falses in Omnibus' - meaning "He who speaks falsely in one point will speak falsely upon all" - to a witness who gives false evidence. The present trend is instead of rejecting the totality of evidence, to act on that part of evidence which is true and reliable. This approach is known as divisibility of credibility. The learned judge should have impressed upon the assessors that due to serious inconsistencies and infirmities in David's testimony he is an unreliable witness and not worthy of credit and it is unsafe to act on his evidence. However the assessors should be informed that they are free to act on his evidence provided he had given a satisfactory explanation or can act on parts of evidence corroborated by independent evidence. The trial judge had failed to give adequate directions regarding this matter.
[79] The Petitioner relied on the case of Guan Singh v R [1963} 9 FLR 105 which held:
"It is the duty of the trial judge to warn the assessors, and to keep in mind himself, that it is dangerous to accept sworn evidence which is in conflict with statements previously made by the same witness; or, at least, that such evidence should be submitted to the closest scrutiny before acceptance. It is, however, still the duty of the assessors, and of the judge himself, after full attention has been paid to this warning, to determine whether or not the evidence given before them in court at the trial is worthy of credence and, if so, what weight should be attached to it. The assessors and the trial judge, in determining the credibility of the evidence, must decide the preliminary question as to whether or not the explanation given by the witness as to the reason for such conflict is feasible and acceptable."
[80] The Court of Appeal did not follow the case of Guan Singh vs R (supra) instead followed the decision in Jagdishwar Sing and Another v R (1962) 8FLR 159. The Court of Appeal in its judgment stated:-
"[20] It must be noted that the facts of the above case is different to the facts of the instant case. The instant case is not one wherein the witness made a different and/or conflicting statement to the police. What the witness (David) did was to omit an important fact in three previous statements. The witness gave a reason for the omission. He said that he was told by the appellant not to mention it to the police. He also said that he was scared. The learned Judge had drawn the attention of the Assessors to this important aspect. It may be that this witness made an attempt to protect the appellant who was acquainted with him. When he was implicated for the theft of jewellery he changed his mind and revealed the truth. (Jagdishwar Singh and Another v R (1962) 8FLR 159)."
[82] The next important question is whether the trial judge gave adequate directions regarding the assessment of circumstantial evidence. In his judgment at paragraph 2 he had stated that:
"(2) In the majority opinion of three assessors you have been found guilty of the charge. The case as prosecuted was a largely circumstantial case, and as such the circumstantial evidence against you is strong."
[83] However the trial judge in his judgment did not adequately deal with the question of assessing the items of the circumstantial evidence. He had failed to sufficiently explain to the assessors what is circumstantial evidence, how to assess and how to come to a finding based on circumstantial evidence. The failure of the learned trial Judge to give proper directions to the assessors regarding circumstantial evidence had occasion a substantial and grave injustice to the Petitioner.
[84] In the Commonwealth jurisdictions, judges very often refer to the following words of Pollock CB in R.v Exall (1866)4F &F,922 at929 in explaining the nature and effect of circumstantial evidence.
"It has been said that circumstantial evidence to be considered as a chain and each piece of evidence as a link in the chain, but that is not so, for then, if any one link breaks, the chain would fall. It is more like the case of a rope comprised of several codes. One strand of the rope might be insufficient to sustain the weight, but three stranded together may be quiet of sufficient strength. Thus it may be in circumstantial evidence- there may be a combination of circumstances, no one of which would raise a reasonable conviction or more than a mere suspicion; but the three taken together may create a conclusion of guilt with as much certainty as human affairs require or admit."
[85] In order to convict an accused the cumulative effect of circumstantial evidence should be consistent with the guilt of the accused. Most of the Commonwealth countries still tend to follow the rule of Alderson B. in R. vs. Hodges (1838) 2 Lev C.C. 227; 8 c & P 195. According to that rule the Jury has to decide, not only whether they are consistent with the hypothesis of the prisoners guilt, but whether they are inconsistent with any other reasonable hypothesis of his innocence. This rule which is referred to as Hodges rule is not followed in England since the case of McGreevy vs the DPP (1973) 1 W.L.R. 276, (1973) 1 A.E.R. 503.However in other Commonwealth jurisdictions such as Australia, New Zealand, India and Sri Lanka courts follow this rule. In the instant case the main issue is whether this is a case of murder or suicide. Therefore the cumulative effect of the circumstantial evidence should be consistent with the guilt of the accused and inconsistent with the innocence of the accused. The trial judge had erred in law when he failed to give proper direction regarding circumstantial evidence having regard to the facts and circumstances of this case.
[86] The trial judge in paragraph 2 of his judgement stated "In the majority opinion of three assessors you have been found guilty of the charge. The case as prosecuted was a largely circumstantial case, and as such the circumstantial evidence against you is strong." At this stage it is relevant to consider the items of circumstantial evidence against the accused:-
1. The accused was with the deceased on the date of the incident.
2. Prosecution alleged that the accused had a motive to kill the deceased. There is evidence that the accused had a quarrel with the deceased and he had assaulted the deceased.
3. He was last seen in the flat of the deceased at or about the time of her death.
4. According to the post mortem report death was due to strangulation.
[87] The following items of circumstantial evidence are favourable to the accused:-
[88] In order to find the accused guilty of murder, all the items of circumstantial evidence including items favourable to the accused when taken together, the cumulative effect of the evidence should irresistibly lead to the conclusion that the accused committed the crime and it is inconsistent with the defence of suicide.
[89] The Learned trial judge and the Court of Appeal did not properly assess the evidence, and failed to consider the defence and items of evidence favourable to the accused and as a result substantial and grave injustice was caused to the accused.
(2) Did the Court of Appeal err in law in not setting aside the Petitioner's conviction even though it held that the learned High Court Judge had not assisted the assessors by way of analysing and drawing inferences to assist them in coming to a correct conclusion?
[90] In paragraph 32 and 33 of the judgment the Court of Appeal held that:-
"[32] I am of the view that the evidence produced was very strong to make out a case against the appellant. I agree that the learned Judge had not assisted the assessors by way of analysing and drawing inferences to assist them in coming to a correct conclusion without merely leaving the facts and allowing them to arrive at a decision. The judge cannot content himself by simply reiterating the incantation that it is for the jury to decide the facts (Cross on Evidence 9th Edition at pg.199 citing R.v Gilbey (1990) (26 January 1990) unreported (cited in Mears v R) (1993) 97 Cr App Rep 239).
[33] With all these infirmities I am of the view that no prejudice was caused to the appellant. The learned Judge in both his judgment and sentencing decision has given a short analysis as to why he agreed with the Assessors in convicting the appellant. While considering all the evidence that was led in this case I am of the view that the judgment is correct and fair and thus has caused no miscarriage of justice. Hence I am of the view that appeal is without merit."
[91] The Court of Appeal had erred when it stated that the learned trial judge had given a short analysis as to why he agreed with the assessors in convicting the appellant when no such analysis was made. In his judgment he had merely commented that 'the case as prosecuted was a largely circumstantial case, and as such the circumstantial evidence against you is strong.' This is the only reference in the judgment regarding the evidence.
[92] The learned trial judge in his summing up failed to give adequate directions regarding fundamental matters such as credibility of witnesses, evaluation of circumstantial and expert evidence. In the circumstances the Court of Appeal erred in stating that there was no miscarriage of justice when it is apparent that the Petitioner was deprived of a fair trial.
[93] The Court of Appeal having held that 'the learned trial judge had not assisted the assessors by way of analysing and drawing inferences to assist them in coming to a correct conclusion without merely leaving the facts and allowing them to arrive at a decision' erred when the Court of Appeal held that no prejudice has been caused to the Petitioner whereas substantial and grave injustice was caused to the Petitioner.
(3) Did the Court of Appeal err in law when it did not properly analyse the evidence of the Pathologist and wrongly held that there was nothing to indicate that the death was due to hanging and the cause of death not an issue at the trial?
[94] The Petitioner did not raise this ground as a ground of appeal in the Court of Appeal' However the at the trial, defence counsel cross-examined the doctor and challenged her findings that the death was due to strangulation. There are enough authorities to support the view that if new grounds are raised it will be more stringent to obtain leave than in cases where the ground of appeal was taken up in the Court of Appeal. Therefore we have to consider whether this ground could be entertained or not by the Supreme Court.
[95] In Dip Chand v The State; CAV 0014.2012(9 May 2012), the Supreme Court had in paragraph 27 held that:
"Given that the criteria set out in Section 7 (2) of the Supreme Court Act 14 of 1998 are extremely stringent and special leave to appeal is not granted as a matter of course, the fact that the majority of the ground relied upon by the Petitioner for a special leave to appeal have not been raised in the Court of Appeal makes the task of the petitioner of satisfying the threshold requirements for special leave even more difficult."
[96] In the case of Kwaku Mensah v The King (1946) AC 83 where extension of time was granted. In that case it was held that "Where a substantial and grave injustice might occur the Privy Council would allow a new point to be taken up which has not been raised below even when it was not raised in the petitioners printed case."This case was cited solely to emphasize the fact that even in Privy Council where strict procedure is followed in granting leave, in an appropriate case new points could be taken up. Although this ground was not raised in the Court of Appeal, this Court will grant leave as this ground is crucial to the determination of this appeal.
[97] The issue involved in the reception of medical evidence is whether or not the trial judge abdicated his function to the expert witness. It is important to understand who is an expert, and what expert evidence is. In Section 4(1) of the Evidence Act of England, the following definitions are found:
'expert means a person who has specialised knowledge or skill based on training, study or experience'
'expert evidence means the evidence of an expert based on the specialised knowledge or skill of that expert and includes evidence given in the form of an opinion'
[98] The role of the expert witness was explained by Lord President Cooper in Davie v Edinburg Magistrates [1953] SC 34, 40 thus:
"Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence."
Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd - The Ikarian Reefer [1993] 2 Lloyd's Rep.68,81 described the role of an expert thus: "Án expert witness should provide independent assistance to court by way of objective unbiased opinion in relation to matters within his expertise... ...."
[99] In this case the trial judge abdicated his function and adopted the medical evidence as conclusive evidence. The statement made by the trial judge before the commencement of the trial proper manifest his complete reliance on the medical report:-
"Court: we now serve statement of the pathologist to determine whether suicide or homicide. Filing of agreed facts by end of to-day. For mention on 16th March2012."
(High Court trial proceedings - dated23 -2-2012)
[100] Similarly the Court of Appeal approached the medical evidence in somewhat similar manner when it stated: "The pathologist gave the cause of death as asphyxia due to strangulation... ... There was nothing to indicate that the death was due to hanging. The Cause of death was never an issue at the trial".
[101] It is appropriate at this stage to refer to the medical evidence. Dr. Aabha Gupta, Pathologist, [MBBS (Path) India, MB (Path)(1994)] who had performed more than one thousand post mortem examinations gave evidence based on the report submitted by Dr. Ramaswamy Ponnu Swamy Goundar who conducted the post mortem examination. The cause of death was asphyxia due to strangulation.
[102] It is unfortunate that Dr. Goundar who viewed the body and made observations and came to certain conclusions was not summoned as a witness. His absence or non availability was not explained. This is a serious infirmity in this case. Dr. Gupta who gave evidence based on Dr. Goundar's report admitted that the best person to give evidence regarding findings is Dr. Goundar.
[103] According to the post mortem examination report there was haemorrhage - a collection of blood in the outer part of the thyroid (Lower part). Swelling on lungs and more oedema (extra blood) in lungs. A contusion under skin on scalp on the brain. According to Dr. Gupta this injury "could be caused after a blunt injury to that area. Some force applied to skull area". She further opined "that all the features go in favour of strangulation. If someone died due to hanging asphyxia caused by restriction on neck. Ligature mark present below mandible and above thyroid gland. In this case no ligature mark. Ligature depends on weight, length of time hanging. No ligature marks in the photos. In hanging case- death occurs not in a fixed time. Can be immediate or it could be slow when legs touching the ground for example in hanging case-knot round the neck depends if sliding knot or affixed not."
[104] The absence of a ligature mark had influenced Dr. Gupta to exclude suicide. However the doctor had opined that presence of ligature mark depend on other factors such as weight, length of time of hanging. Dr Gupta had come to the conclusion that the injury to the scalp was caused by a blunt weapon. There is no evidence regarding the use of a blunt weapon. However there is evidence to prove that deceased had met with an accident few days before and was taking treatment. The injury to the scalp may be due to the accident. The post mortem report refers to a 'mark at the lower part of the neck 14cm x 2cm'. Dr. Gupta had failed to explain this injury. The defence position is that this is consistent with the sulu been tied around the neck.
[105] The learned trial judge did not properly direct the assessors as to how they should consider the medical evidence and come to a conclusion regarding the cause of death. The Learned trial judge had abdicated his function and accepted medical evidence as conclusive evidence. There is a serious error of law in the summing up which caused grave and substantial injustice to the Petitioner. Similarly the Court of Appeal has also fallen into this error. I am of the view that approach adopted by the learned trial judge and the Court of Appeal regarding evaluation of medical evidence is erroneous. It has the effect of withdrawing the defence of suicide from the assessors and resulted in miscarriage of justice.
(4) Did the Court of appeal err in law when wrongly purporting to overrule and not follow the recent Supreme Court decision in Praveen Ram vs State (Criminal Appeal CAV 001 of 2011)?
[106] The Petitioner submits that the Court of Appeal (in paragraphs 23 and 24 of the judgment) refused to follow the decision of the Supreme Court in Praveen Ram v The State (Criminal Appeal CAV 001 of 2011.) The Court of Appeal was therefore wrong in law in refusing to follow this judgment and has gone beyond its jurisdiction.
[107] This case involves complex issues such as dealing with circumstantial evidence, credibility of witnesses and expert evidence. Therefore it is necessary to examine the summing up and the judgment to ascertain whether the trial judge had addressed his mind to the crucial issues involved in this case and given adequate directions to the assessors and whether or not his judgment contain a proper assessment and analysis of the facts involved in the case.
[108] The learned High Court Judge in his judgment dated 5 October 2011 stated that:
"(2) In the majority opinion of three assessors you have been found guilty of the charge. The case as prosecuted was a largely circumstantial case, and as such the circumstantial evidence against you is strong.
(3) I agree with the majority verdict of the assessors and find you guilty as charged. You are convicted accordingly. That is the judgment of the court."
(para (1) refers to the Statement and Particulars of the offence)
[109] Under section 237 of the Criminal Procedure Decree, in a case where the trial judge agrees with the decisions of the assessors, if the summing up is on record, there is no necessity to give reasons. However if he disagrees with the findings of the assessors he is required to give reasons. In the instant case the trial judge agreed with the majority decision of the assessors. Therefore it is not mandatory for him to give reasons.
[110] I find that the learned trial judge in his summing up had not adequately dealt with fundamental issues involved in the case and it does not contain a proper assessment and analysis of the evidence. The appeal courts in reviewing decisions of lower courts, examine whether a trial judge in his summing up or judgment had properly evaluated the evidence in order to determine whether the decision or the judgment is supported by evidence or is inconsistent with the evidence or is perverse. I am of opinion that the rationale of Praveen Ram v The State (supra) is relevant in this context. In Praveen Ram v The State (supra) the Supreme Court held that:-
"A trial judge's decision to differ from, or affirm, the opinion of the assessors necessarily involves an evaluation of the entirely of the evidence led at the trial including the agreed facts, and so does the decision of the Court of Appeal where the soundness of the trial judge's decision is challenged by way of appeal as in the instant case. In independently assessing the evidence in the case, it is necessary for a trial judge or appellate court to be satisfied that the ultimate verdict is supported by the evidence and is not perverse. The function of the Court of Appeal or even this Court in evaluating the evidence and making an independent assessment thereof, is essentially of a supervisory nature, and an appellate court will not set aside a verdict of a lower court unless the verdict is unsafe and dangerous having regard to the totality of evidence in the case."
[111] The Petitioner submits that the Court of Appeal erred in law when it refused to follow the judgment in Praveen Ram vs. State and instead followed the judgments in Mohamed vs State (unreported CAV 2 of 2013; 27 February 2014) and Edward Sheik Faruk Ali vs Reginam [1974] Fiji LR 35 at 38 where it was stated that if the trial judge agrees with the majority of assessors he need not write a judgment but write down the decision of the court.
[112] The Petitioner submits that even in the case of Mohammed v State; CAV 2 of 2013 where judgment of the Supreme Court was delivered on the 27th February, 2014, the Supreme Court followed the judgment in Praveen Ram vs State when it stated:-
"An appellate court will be greatly assisted if a written judgment setting out the evidence upon which the judge relies when he agrees with the opinions of the assessors is delivered. This should become the practice in all trials in the High Court."
[113] In view of the complex issues involved in this case, though not mandatory, the appellate court would have been greatly assisted if the trial judge had given reasons for agreeing with the majority of the assessors and giving reasons for rejecting the defence put forward by the accused and finding the accused guilty of the charge.
Conclusions
[114] It is my considered view that the learned trial judge did not adequately assess and evaluate the evidence and it results in grave and substantial injustice to the Petitioner. Having considered the evidence of this case, I am of the view that the learned trial judge had failed to give adequate directions to the assessors. His summing up contains many misdirections and non-directions. This deprived the accused of a fair trial and caused grave prejudice to him. The Court of appeal failed to consider the grounds of appeal. In view of these infirmities the conviction and sentence could not be sustained. Therefore the conviction and sentence have to be quashed, and the case remitted to the High Court for retrial.
Orders of Court
[115] Accordingly, I would make the following orders in the exercise of the powers vested on this Court in terms of section 98 (5) of the Constitution of the Republic of Fiji 2013 read with the Supreme Court Act No. 14 of 1998:-
_________________________________
Hon. Mr. Justice Priyasath G. Dep
JUDGE OF THE SUPREME COURT
Solicitors:
Sherani & Co. for the Petitioner
Office of the Director of Public Prosecutions for the Respondent.
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