Nasila v State [2022] FJSC 15; CAV0017.2019 (28 April 2022)

IN THE SUPREME COURT OF FIJI
[CRIMINAL APPELLATE JURISDICTION]

Criminal Petition No. CAV0017 of 2019
[From Criminal Appeal No. AAU0004
of 2011 and High Court of Fiji Action No. HAC 93 of 2009]

BETWEEN:
SAIRUSI NASILA

Petitioner

AND:

THE STATE

Respondent

Coram : Hon. Mr. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Mr. Justice Buwaneka Aluwihare, Judge of the Supreme Court
Hon. Mr. Justice Brian Keith, Judge of the Supreme Court

Counsel : The Petitioner in person

: Mr. S. Babitu for the Respondent

Date of Hearing : 20 April 2022

Date of Judgment : 28 April 2022

JUDGMENT

Marsoof, J:

[1] In September 2009, in Nakorokula village near Nadi at approximately 7 pm, Unise, a two years and 11 months old female child disappeared from her family compound, and after an unsuccessful search for her throughout the night, the Petitioner, Sairusi Nasila, a family friend who had visited her home that evening was apprehended by the Police.

[2] While in the Police vehicle, Nasila confessed his gruesome crime and led the police party to where Unise’s body was. He had made a full confession in a cautioned interview and in an answer to the formal charge he had admitted that he covered Unise’s mouth with sellotape so she couldn't cry out, and after carrying her to the pine forest he punched her in the head in an effort to keep her quiet when he heard others searching for her. He then laid her down, took her T-shirt and covered her nose and mouth with it to stop her breathing until she died. He confessed that he tried to have sex with the motionless body of Unise and then carried her body down a hill and hid it covered with clothes and long grass at a very remote spot.

[3] After investigation, Nasila was charged on two counts, the first for abduction in order to subject a person to unnatural lust contrary to section 252 of the Penal Code, Cap. 17 and on a second count of murder contrary to sections 199 and 200 of the Penal Code.

[4] Nasila was tried in the High Court of Fiji at Lautoka, and on 19^th November 2010 was convicted by the trial judge upon unanimous opinions of the assessors and sentenced to 10 years imprisonment on the first count to run concurrently with the life imprisonment imposed on the second count of murder with a minimum term of 25 years imprisonment.

Appellate proceedings in the Court of Appeal

[5] A single judge of the Court of Appeal heard Nasila’s application for leave to appeal out of time on 5 grounds of appeal against the conviction and two against the sentence, and by his Ruling of 26^th June 2013, granted enlargement of time but refused leave in respect of all grounds of appeal against the conviction and the sentence.

[6] Nasila then renewed his application for leave to appeal before the Court of Appeal pursuant to section 35(3) of the Court of Appeal Act, and the Court of Appeal for the reasons fully set out in its judgment dated 6^th June 2019, refused leave to appeal against conviction but allowed leave to appeal against the sentence. Having considered the sentence appeal, the Court of Appeal dismissed the appeal and affirmed the sentence on both counts.

Application for leave to appeal to the Supreme Court

[7] The Petitioner Nasila lodged his petition seeking leave to appeal against the impugned judgment of the Court of Appeal dated 6^th June 2019 in the Registry of this Court on 1st August 2019, approximately 12 days after the expiry of the period of 42 days permitted by the Rule 5 (a) of the Supreme Court Rules 2016 for filing such an application.

[8] It is noteworthy that the aforementioned petition seeking leave to appeal out of time was supported with an affidavit of the Petitioner dated 1^st August 2019 and set out two grounds of appeal against the conviction, which were as follows:-

Ground 1: The Court of Appeal had erred in law and fact to accept that “there is enough circumstantial evidence even without his (the Petitioner’s) confessional statements against him to prove the charges against him”

Ground 2: The Court of Appeal had erred in law and in fact in upholding the conviction on inferences without an expert witness on intention when commenting that: “Whatever the motive is, the appellant’s act of deliberately suffocating the victim could lead to one and only one inference that he had the knowledge that his act will probably cause the death of or grievous harm to the victim. Even if the appellant was indifferent as to whether death or grievous bodily harm would be caused or not to the victim, or even if he wished that death or grievous harm may not be caused to the victim, it makes no difference to his liability for murder.”

[9] The original petition of the Petitioner dated 1^st August 2019 did not seek leave to appeal against the sentence.

[10] Thereafter the Petitioner purported to file “Submissions” dated 1^st March 2021 (received in the Registry of this Court on 8^th March 2921) in which he advanced, without prior leave of Court, four grounds of appeal against conviction and one ground of appeal against the sentence, and followed up with a ‘Notice of Additional Grounds of Conviction’ dispatched through the Suva Correction Centre (received in the Registry of this Court on 12^th May 2021), with one more ground against conviction.

[11] The practice of litigants seeking to file grounds of appeal and argue their cases on a piecemeal basis without compliance with the applicable rules of procedure was commented upon by the Court of Appeal in this very case in its judgment dated 6^th June 2019 in paragraphs [4] to [14], and it was in this context of the Petitioner seeking to add to his grounds of appeal without prior leave of the Supreme Court, that at a virtual sitting of this Court held on 8^th November 2021 this Court considered the Petitioner’s application for enlargement of time and granted him leave to appeal out of time, fixing dates for the filing of a proper petition with grounds of appeal and thereafter written submissions by the Petitioner and the Respondent.

[12] Accordingly, by his undated letter dispatched by the Assistant Superintendent of Corrections on 25^th November 2021 (received in the Registry of this Court on 26^th November 2021), the Petitioner has sought leave to appeal of this Court on the following grounds of appeal:-

The Grounds:

(a) That the investigation by police was procedurally flawed and prejudicial where vital evidence concerning the appellant’s case was withheld deliberately from the court occasioning a grave miscarriage of justice to the appellant.

(b) That the self-incriminatory confession statement by the appellant used as evidence against him in court and was a fabrication procured through use of very excessive force, was illegal and wrong in law.

(c) That the comments by the trial judge that the appellant kidnapped the victim motivated by prurient reasons (sexual urge) was a misdirection that had the effect to unfairly disadvantage the appellant and influence the opinion of the assessors causing justice to miscarry.

(d) The conviction of the appellant for murder is not supported by the totality of the evidence.

(e) That the sentence is wrong in principle in that that judge had double counted the factors of aggravation.

[13] At the hearing of this application before this Court on 20^th April 2022, the Petitioner who appeared in Person, submitted that he would confine himself to the four grounds against conviction and one ground against sentence set out in the undated letter of the Petitioner received in the Registry of this Court on 26^th November 2021 and the written submissions filed by him with his previous grounds of appeal the essence of which are embodied in his aforesaid undated letter received on 26^th November 2021. Mr. Babitu, who represented the Respondent, stated that he would confine himself to his written submissions dated 27^th October 2021.

[14] Though the Petitioner had invoked the appellate jurisdiction of this Court approximately 12 days out of time, enlargement of time was granted to the Petitioner at a virtual sitting of this Court held on 8^th November 2021. However, the Petitioner has to satisfy this Court that the grounds of appeal urged by him in his undated letter of 26^th November 2021 meet the stringent threshold criteria laid down in section 7(2) of the Supreme Court Act, 1998. It is trite law that the Supreme Court will not grant leave to appeal unless (a) a question of general legal importance is involved, or (b) a substantial question of principle affecting the administration of criminal justice is involved, or (c) substantial and grave injustice may otherwise occur.

[15] I propose to examine the grounds of appeal set out in the Petitioner’s letter of 26^th November in the light of the threshold criteria mentioned above for the grant of leave to appeal.

[16] The first ground urged by the Petitioner against conviction is that the investigation by police was procedurally flawed and prejudicial where vital evidence concerning the appellant’s case was withheld deliberately from the court occasioning a grave miscarriage of justice to the Petitioner. The Petitioner did not file written submissions in support of this ground, but at the hearing he stated that his main grievance was that the trial judge did not take into account the statement made by him in his voir dire. I have examined the Voir Dire Ruling of 16^th November 2010 and am satisfied that the trial judge had taken into account the statement made by the Petitioner at the voir dire hearing.

[17] The second ground relied upon by the Petitioner was that the self-incriminatory confession statement made by him and used as evidence against him in court was a fabrication procured through use of very excessive force and was illegal and wrong in law. At the voir dire hearing, the Petitioner was represented by Counsel who took objection to the admissibility of the oral confession, caution interview and charge statement on several grounds, but after examining the testimony of five Nadi police officers, the grandfather of the young child victim who had led a search party that desperately searched for Unise throughout the night, Dr. Raqona from Nadi Hospital who had examined the Petitioner and the District Officer, Nadi, the trial judge by his Ruling of 16^th November 2010, concluded that the confession was entirely voluntary. He also concluded that the Petitioner’s responses to the caution interview and the answer to the charge were given voluntarily and the accused's version of events is not borne out by the medical evidence. The trial judge was entitled to make these findings. It is material to note that it was the Petitioner who had voluntarily taken the Police to the place where Unise’s body was found.

[18] The third ground urged by the Petitioner was that the comments by the trial judge that the Petitioner kidnapped the victim motivated by prurient reasons (sexual urge) was a misdirection that had the effect to unfairly disadvantage the appellant and influencing the opinion of the assessors causing justice to miscarry. I do not find the word “prurient” used anywhere in the summing up of the trial judge, and the only paragraphs where the trail judge has referred to the sexual elements are entirely fair, and I quote them below:

[32] I must say something to you about the sexual elements in this case. It is most important that you bear in mind that he is not charged with any sexual offence such as rape, indecent assault etc. You are to judge the accused on the evidence and only on the two charges he faces, looking as I said at each charge separately.

[33] There is however a sexual element in the first count as you now realize. He is charged with abducting Unise for the purposes of unnatural lust. He has said that he wanted to have sex with her, and later said the same thing in much more vulgar terms, and this evidence (if you believe he said it and it was true) is relevant to the first count.

[19] The fourth ground on which the Petitioner has sought to challenge his conviction is that “the conviction of the appellant for murder is not supported by the totality of the evidence.” This is identical with the second ground taken up by the Petitioner in the Court of Appeal and considered in paragraphs 64 to 69 in its judgment. The argument considered and rejected by the Court of Appeal was that since according to his caution interview the intention of taking the victim was to have sex with her and there is paucity of evidence of his having entertained malice afterthought and therefore the conviction for murder is not supported by evidence.

[20] As observed by the Court of Appeal in paragraph 66 of its judgment, “the evidence in the case completely militates against this argument.” It is noteworthy that the Petitioner has admitted in his caution interview that after carrying Unise to a secluded place, he laid beside her until she fell asleep and thereafter he took out her T-Shirt and tied her mouth and nose for her not to breath. He has admitted that she was struggling for some time and then he came to know that she was dead. Thereafter he carried her body a little away from that place and tried to have sex with her corpse.

[21] Apart from the aforesaid four grounds against conviction, the Petitioner also relies on a fifth ground against the sentence which was that “the sentence is wrong in principle in that that judge had double counted the factors of aggravation.” The Petitioner could not explain what factors have been double counted, and considering that this case involves a gruesome abduction and murder that could shock the conscience of any human being where the Petitioner murdered a young girl who was only 2 years and 11 months at the time of her death, the sentence is not at all excessive.

Conclusions

[22] Having considered the grounds advanced by the Petitioner for leave to appeal, I do not find any one of the grounds urged satisfy the threshold criteria for the grant of leave to appeal. Leave to appeal is therefore refused, and the Petition is dismissed.

Aluwihare, J:

[23] I have read the judgment of Marsoof J. in draft and I am in agreement with his reasoning and conclusions.

Keith, J:

[24] I agree with the judgment of Marsoof J.

The Orders of the Court are:

1. Leave to appeal is refused.
2. Application is dismissed
   

...................................................

Hon. Justice Saleem Marsoof

Judge of the Supreme Court

............................................

Mr. Justice Buwaneka Aluwihare

Judge of the Supreme Court

.......................................

Hon. Mr. Justice Brian Keith

Judge of the Supreme Court

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