Nadim v State [2016] FJSC 24; CAV 0029.2015 (22 June 2016)

IN THE SUPREME COURT OF FIJI
[APPELLATE CRIMINAL JURISDICTION]

CRIMINAL PETITION No: CAV 0029 of 2015
(Court of Appeal No. AAU 80 of 2011]

BETWEEN : MOHAMMED NADIM

Petitioner

AND : THE STATE

Respondent

Coram : Hon. Justice Sathyaa Hettige, Justice of the Supreme Court
Hon. Justice Suresh Chandra, Justice of the Supreme Court

Hon. Justice Almeida Guneratne, Justice of the Supreme Court

Counsel : Petitioner in Person
Mr. L. J. Burney for the Respondent

Date of Hearing : 15 June 2016

Date of Judgment : 22 June 2016

JUDGMENT

Sathyaa Hettige, J

[1] I agree with the reasoning and conclusions of the Orders proposed by Guneratne, J.

Suresh Chandra, J

[2] I agree with the reasoning and conclusions of Guneratne, J.

Almeida Guneratne, J

Background to the present application

[3] By judgment dated 4^th August, 2011, the High Court in Suva convicted R V Padiyachi and Mohammed Nadim on two counts of murder under Sections 199 and 200 of the Penal Code.

[4] A Single Judge of the Court of Appeal in pursuance of Section 35(1)(a) of the Court of Appeal Act (Cap. 12) by a Ruling dated 14 March, 2014 granted leave to appeal to the full court against the said Judgment of the High Court. Leave was restricted to three of the ten grounds that had been urged. However, when the matter was taken up for hearing on 16^th September, 2015, the Court of Appeal, having noted some intervening events acted under Section 17 of the Court of Appeal Act (Cap. 12) with the concurrence of Counsel for both parties, and put down four grounds of appeal for consideration.

The Resulting Grounds of Appeal

[5] They were:

“Ground One

The learned trial Judge erred in law and in fact when he did not properly direct the assessors on how to approach the previous inconsistent statements of some witnesses.

Ground Two

The learned trial Judge erred in law and in fact when he did not properly direct the assessors in respect of circumstantial evidence.

Ground Three

The learned trial Judge erred in law and in fact when he did not direct the assessors to disregard the evidence of larceny after the prosecution amended the information hence causing substantial miscarriage of justice and prejudice to the Appellants.”

Ground Four

The learned trial Judge erred in law and in fact when he forced the Appellants’ Counsel to continue representations despite informing the Court of his intention to withdraw.”

Some Preliminary Matters

[6] Before I proceed to consider those grounds and the response of the Court of Appeal thereto it is necessary to mention some matters that surfaced at the outset of the hearing.

1. Counsel, Mr. Savou, who had appeared for the Appellant on 10^th June, 2016 when this matter had been originally scheduled for hearing was granted an adjournment and the hearing was rescheduled for the 15^th. But, learned counsel informed the Court that he is not able to act further on behalf of the Appellant. The Appellant being present in Court agreed to proceed with the matter by himself. The Court was not disposed towards granting another adjournment.
   
2. However, in addition to the written submissions dated 3^rd October, 2015 filed by the Appellant he urged Court to accept and consider an amended application dated 15^th June, 2016 in support of his appeal on the basis that some additional grounds were contained therein. Having regard to the history of his lament, we accepted the said amended application in the interest of justice.
   

Re : The Grounds of Appeal urged before this Court

[7] The grounds of appeal urged in the written submission dated 3^rd October, 2015 and the Additional Grounds urged in the submission of 15^th June, 2016 are the same grounds that had been put before the Court of Appeal in assailing the judgment of the High Court except that the submissions I referred to above are more detailed.

The Common Strand that runs through the said Grounds

[8] The common strand that runs through the petitioner’s grievance is that, the Court of Appeal did not properly address the grounds of appeal urged before it and in its failure to address them erred in law in not applying the correct principles enunciated in Swadesh Singh v. State [2006] FJSC 15 and Praveen Ram’s decision, CAV 0001 of 2011. The Petitioner in fact goes further in his lament that, the Court of Appeal purported to overrule and not follow the Supreme Court decision in Praveen Singh’s case (supra) thereby contravening Section 98(1) of the Constitution.

Does the Judgment of the Court of Appeal fail to bear scrutiny?

[9] I shall first take Ground 1 and Ground 2 urged before the Court of Appeal (vide: recapped in paragraph [5] of this judgment) for they are intrinsically connected.

[10] In so far as Ground 1 is concerned the Court of Appeal held at paragraph [19] of its judgment thus:

“Should the High Court Judge necessarily have followed Swadesh Kumar guidelines in this case? I think not, inter alia for the following reasons. The highlighted omissions in Ronish’s and the inconsistency in Moshim’s evidence are not directly inconsistent with their overall evidence in court and taken separately and in isolation they do not implicate the Appellants with the charges either. Most importantly those do not go to the root and shake the very foundation of Ronish’s and Moshim’s evidence. In addition, their police statement had not been made under oath. Further Ronish’s discrepancies are omissions not inconsistencies. The said omissions and event the sole inconsistency do not damage the basic fabric of the evidence of the two witnesses. They are not material omissions or inconsistencies.”

[11] As regards Ground 2 the Court of Appeal noted as follows at paragraph [22] to [24] of its judgment.

“[22] The main complaint of the Appellants is that the High Court Judge has failed to direct the assessors on the lines approved by the Court of Appeal in Lole Vulaca and Two Others v. The State Criminal Appeal No. AAU0038/08; 29^th August 2011 [2011 FJCA 39] in that the Court of Appeal found no error in the summing up of the trial judge where he had said inter alia

‘Remember that in considering circumstantial evidence you must be satisfied beyond reasonable doubt that the only reasonable inference available to you is the guilt of the Accused before you can find them guilty. If you find that there are other reasonable inferences you can draw which are consistent with the Accused’s innocence or if you have a reasonable doubt about it, then you should find each not guilty.’

[23] It is necessary to examine how the High Court Judge had directed the assessors in the instant case. He stated inter alia as follows;

‘It is not sufficient that the proved circumstances are merely consistent with the Accused persons having committed the crime. To find him guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the Accused persons committed the crime.’

[24] The Supreme Court decision in Senijieli Boila v. The State (Criminal Appeal No. CAV 005 of 2006S; 25^th February 2008) is also relevant in this regard. The Court observed on the use of circumstantial evidence that

‘What is required is a clear direction that the tribunal of fact must be satisfied of the guilt of the accused beyond reasonable doubt (McGreev v. Director of Public Prosecutions [1973] 1 WLR 276, applied Kalisoqo v. R Criminal Appeal No. 52 of 1984). See also R. Hart [1986] 2 NZLR 408. The adequacy of a particular direction will necessarily depend on the circumstances of the case.’

Did the Court of Appeal have any Reservations in regard to those precedents?

[12] I posed that question for myself for the reason that, the Court of Appeal before considering the circumstantial evidence led against the Appellants is seen stating thus: (vide: paragraphs [25] and [26] of its judgment)

[25] There is merit in the Appellants’ complaint that the High Court Judge has not said in the summing up that if there are other reasonable inferences the assessors can draw consistent with the accused’s innocence or if they have a reasonable doubt about it, then they should find them not guilty. In other respects the direction of the High Court Judge as quoted above is blameless. He has been almost spot-on with the first limb but had not touched on the second limb of the direction sanctioned by the Court of Appeal in Lole Vulaca’s case. However as the Supreme Court remarked in Senijieli Boila’s case what is required is a clear direction that assessors must be satisfied of the guilt of the accused beyond reasonable doubt and in my view the impugned direction satisfies this requirement in no uncertain terms and as accurately as it could be. Thus, there being no ideal stereotyped direction in evaluating circumstantial evidence, the adequacy of any given direction will necessarily depend on the circumstances of the case as stated in Senijieli Boila’s case.

[26] I shall now consider the circumstantial evidence led against the Appellants to determine whether in the absence of a specific statement based on the second limb approved by the Court of Appeal in Lole Vulaca’s case, the impugned direction could be considered adequate or not.”

Re : The two limbs His Lordship (the author of the Principal Judgment) spoke of in the context of the Directions given by the High Court to the Assessors

[13] The said two limbs may be discerned as follows:

1^st limb: that, “in considering circumstantial evidence you must be satisfied beyond reasonable doubt that the only reasonable inference available to you is the guilt of the Accused before you can find them guilty.”

2^nd limb: that, “if you find that there are other reasonable inferences you can draw which are consistent with the Accused’s innocence or if you have a reasonable doubt about it, then you should find each not guilty.”

What is the merit the Court of Appeal saw in the Appellant’s complaint in regard to that second limb?

[14] Was the trial judge required to say in directing the Assessors that, the prosecution case being founded entirely on circumstantial evidence, the absence of direct evidence should be regarded as a factor to be taken into consideration leading to a reasonable inference that could be drawn which could be consistent with the accused’s innocence or if you have a reasonable doubt about it, then you should find each not guilty?

Re : Section 7(2)(a) of the Supreme Court Act

[15] Having regard to the basis on which the Court of Appeal saw merit in the Petitioner’s case as recounted by me above and the reasons articulated by me thereon I was inclined to grant special leave to appeal as the matter being one involving “a question of general legal importance” as envisaged in Section 7(2)(a) of the Supreme Court Act.

Re: Ground 3

[16] In that context, I was struck by the reasoning of the Court of Appeal at paragraphs [57] and [58] in its judgment. .

[17] The Court of Appeal commenced its reasoning on the said ground thus:

[57] On a careful consideration, I have no doubt that the items of evidence challenged by the Appellants as being only relevant to the charge of larceny and therefore should have been disregarded in respect of murder charges, are quite admissible and relevant under the principles applicable to the doctrine of res gestae. The impugned evidence has been properly admitted. Therefore there need not have been a direction by the High Court Judge to disregard them to the assessors. No substantial miscarriage of justice and prejudice has come upon the Appellants.

[58] It would not be complete, if I do not place on record that there was no application by the defence for a mistrial after the prosecution abandoned the charge of larceny and closed its case. Neither was there any request to the trial judge to direct the jury on the lines now suggested on behalf of the Appellants with regard to the items of evidence being objected to by them. It looks as if the defence had not considered the impugned evidence to be so prejudicial to the Appellants as to have required a direction by the judge to the assessors to ignore. The argument couched in ground three put forward by the Appellants seems to be an afterthought.”

[18] I endorse fully what the Court of Appeal has said in regard to Ground 3.

Re : Ground 4

[19] Having perused the summary of events relating to the said ground recounted by the Court of Appeal at paragraphs [61] to [71] of its judgment, I could see nothing that I could add thereto. I saw no merit whatsoever in this ground.

Consideration of the Threshold Criteria decreed in section 7(2) of the Supreme Court Act

[20] Section 7(2) of the Supreme Court Act decrees thus:

“S.7(2) 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; or
(c) substantial and grave injustice may otherwise occur.”

[21] It is to be noted that, while (a) and (b) are employed in the conjunctive, criterion (c) is referred to in the alternative.

[22] Is the said section then to be read as, if criterion (a) is satisfied (no doubt in its wake attracting criterion (b) as well) that ought to suffice in decreeing an order under Section 7(1)(c) of Supreme Court Act?

[23] I think not, for the reasons I adduce hereunder.

(a) Given the Court of Appeal’s reservation in seeing ‘merit’ in so far as the 2^nd limb in the trial judge’s direction which I have referred to in paragraph [13] above and my own reflections at paragraph [14] of this judgment, I am of the view that the appellant is entitled to special leave in terms of Section 7(2)(a) and (b).

(b) However, adapting the well reasoned approach which the Court of Appeal did as reflected in paragraph [25] read with paragraphs [57] and [58] of its judgment which I have re-capped earlier and the conclusion it reached at paragraph [72], I cannot see any “substantial and grave injustice” having been caused to the Appellant at the trial in an overall sense, in as much as a conviction cannot be disturbed solely on the criteria laid down in Section 7(1)(a) and (b) of the Supreme Court Act.

Some Concluding Remarks

Re : the Authorities the Appellant Relied on

[24] I hasten to say that, the authorities relied upon by the Appellant including the Swadesh Singh Case (supra) and the Praveen Ram Case (supra) struck me as being against the Appellant rather than being in his favour.

[25] Moreover, I did not see anything in the Court of Appeal judgment as purporting to overrule the Praveen Ram’s Case as alleged by the Appellant. On the contrary, the Court of Appeal faithfully followed the principles laid therein.

Re : the Trial Judge’s Summing Up in regard to previous statements made to the Police during the stage of investigations as opposed to statements made on Oath impacting on the aspect of Circumstantial Evidence in turn

[26] In addition to the authoritative precedents the Court of Appeal went on, I felt obliged to refer to an illuminating statement made by Lord Hailsham of St. Marylebone LC in Lawrence [1982] AC 510 wherein His Lordship said,

“The purpose of a direction to a jury (to be read as to the assessors in the Fijian context) ... ... should be custom built to make (them) understand their task in relation to a particular case.”

[27] Having looked at the learned High Court Judge’s direction to the assessors in the present case and the Court of Appeal’s approval of the same, I myself could see no fault in the said direction, though noting that in McVey [1988] Crim LR 127, which appears to have distanced from the Lawrence approach (supra) in the overall, the dictum of Lord Hailsham in my view, remains intact.

[28] The views I have expressed above are in relation to Grounds 1 and 2 taken together.

The Invisible Burden on a Trial Judge

[29] For the said reasons I am of the view that, taking McVey (supra) even in opposition to the Lawrence Approach (supra) that invisible burden on the trial judge had been discharged by the learned trial judge. (See: in this context Sean Doran ‘Alternative Defences’ ... [1991] Crim LR 878 cited in Watson [1992] Crim LR 434.

[30] Nevertheless for the reasons I have stated at paragraph [12], [14] and [15] of this judgment Special Leave is granted in regard to the said Grounds of Appeal.

Re : Ground 3 – The Trial Judge’s Summing up Therein

[31] On that I have nothing to add to what I have said earlier in this Judgment.

Re : Ground 4

[32] In that context I took the opportunity to look at the principles emanating from R v. Long-Hall, The Times, March 24, 1989; R v. Edwards (N.W.) [1983] 77 Cr. App. R.5, CA as well as R v. Southgate [1963] 47 Cr. App. R. 252, CA and lastly the precedents reflected in a plethora of cases such as R v. Cocks [1976] 63 Cr. App. R. 79.

[33] I saw nothing in the learned High Court Judge’s directions on the said Ground (4) that offended any one or more principles enunciated in those precedents I have adverted to.

Conclusion

[34] On the basis of the foregoing reasons, I have no hesitation whatsoever in rejecting Grounds 3 and 4 urged by the Appellant. In the light of what I have articulated in regard to Grounds 1 and 2, the Appellant is granted special leave on the said grounds.

[35] However, on the basis that, the Appellant has failed to satisfy the criterion envisaged in Section 7(2)(c) of the said Act, in pursuance of the provisions of Section 7(1)(b) while granting special leave I dismiss the appeal treating the matter as a hearing in appeal in accordance with the practice of this Court, following the approach this Court had adopted in Bogidrau v. State [2016] FJSC 5, CAV 0031, 2015, 21 April 2016 per His Lordship Keith, J.

Orders of the Court are:

1. Special Leave is allowed on the basis that the Appellant has satisfied the criteria in Section 7(2)(a) and (b) of the Supreme Court Act in regards to Grounds 1 and 2 above.
   
2. The Appeal shall however stand dismissed.
   

__________________________

Hon. Justice Sathyaa Hettige

Justice of the Supreme Court

_________________________

Hon. Justice Suresh Chandra

Justice of the Supreme Court

__________________________

Hon. Justice Almeida Guneratne

Justice of the Supreme Court