Nand v Reginam [1964] FijiLawRp 39; [1964] 10 FLR 37 (21 February 1964)

[1964] 10 FLR 37

COURT OF APPEAL OF FIJI^[*]

Criminal Jurisdiction

RAVI NAND AND ANOTHER

v

REGINAM

Hammett P., Adams J.A., Marsack J.A.

January 29th-31st, February 21st, 1964

Criminal law — witness — allegation of bias — question of possibility of infidelity by witness' wife with one accused — unnecessary to arrive at positive preliminary finding.

Criminal law — witness — previous inconsistent statements by — allegation of conspiracy to give false evidence.

Criminal law — summing up — defence of alibi — adequacy of direction thereon to assessors.

Criminal law — parties — participation in offence — presence at scene of crime.

The appellants were convicted of murdering one Jahur Buksh by stabbing him to death. On the appeal the principal grounds relied upon were (a) that the evidence of certain witnesses should have been rejected on the ground of hostility and bias (b) that the trial judge did not adequately put the defence before the assessors (c) that the trial judge failed specifically to direct himself and the assessors as to the effect of previous inconsistent statements made by certain of the prosecution witnesses and (d) that there was no evidence or no sufficient evidence of participation by the second appellant in the crime.

Held –

1. Where an allegation of bias in relation to a Crown witness is based on an assertion that he had knowledge of his wife's infidelity with an accused person, there being a conflict of evidence on the question, this is a side issue and it is not a matter in respect of which a court is bound to arrive at a positive preliminary finding

An allegation of conspiracy among witnesses to give false evidence is not sustained merely by the fact that the evidence of the witnesses is similar on certain material points.

2. (a) Though the trial judge made no direct reference to the principle that if a defence of alibi induces a reasonable doubt in the minds of the assessors as to whether or not the accused persons were at an altogether different place at the time of the crime, that doubt should be resolved in favour of the accused, the real issue was whether or not the assessors were left in no doubt as to where the onus of proof lay.

(b) It has been frequently pointed out that the trial judge is under no obligation to explain in detail the case for the defence provided that his summing up as a whole is fair.

R. v Raymond [1956] NZIR 527, followed.

The summing up was adequate and fair to the defence.

(a) The statement of the law relating to the credibility of witnesses who have previously made inconsistent statements contained in the judgment of the Court of Appeal in Gyan Singh v Reginam (post) is not to be taken as giving rise to an inference that in such cases there is a preliminary issue which must be decided as a preliminary and separate question before proceeding to evaluate the testimony. It is sufficient if due consideration is given to the acceptability of any proffered explanation, and the fact that this has been done may appear inferentially from the summing up or judgment, and does not necessarily call for an express and separate decision of the point.

(b) There were reasonable grounds in the present case for the acceptance by the assessors and the trial judge of the explanation of some of the witnesses, and it was impossible to say that the damning evidence of the presence of the appellants in the vicinity of the crime at material times depended even largely upon that of witnesses who had made previously inconsistent statements.

There was ample evidence to prove such participation by the second appellant in the crime as to make him guilty as a principal offender.

Hari Krishna v R (1963) 9 FLR 85, distinguished on the facts.

Moreover the presence of the second appellant at the scene of the crime was unexplained except by an abortive attempt to set up an alibi.

R v Sharmpal Singh [1962] AC 188, applied.

Cases referred to: Ram Swamy Naidu v R (Criminal Appeal 18 of 1961—unreported):

Bullard v R [1957] AC 635; 42 Cr App R 1

R v Radich [1952] NZLR 193

R v Anderson [1951] NZLR 615

Gyan Singh v R (1963) 9 FLR 105

R v Young (1838) 8 C & P 644; 173 ER 655

R v Coney (1882) 51 LJMC 66; 8 QBD 534.

Appeals against conviction.

K. C. Ramrakha for the appellants.

B. A. Palmer for the Crown.

The facts are set out in the judgment of the court.

Judgment of the Court: [21st February, 1964]—

These are appeals against convictions for murder entered on the 21st November, 1963. The trial was held before a judge and five assessors. All five assessors gave their opinion that each of the accused was guilty of murder. The trial judge gave judgment in accordance with this unanimous opinion, convicted both accused of murder and pronounced sentence of death.

The evidence against appellants may be shortly summarised as follows. On the 6th December, 1962, the body of one Jahur Buksh was found, tied up in rope and sacking, in a shallow grave in a dry creek bed in an area known as Barotu in north Viti Levu. The body showed a number of stab wounds in the neck, chest and abdomen which, according to the medical evidence, were probably inflicted by two separate pointed knives or daggers, one larger than the other. According to the medical witness either one of two of the wounds would have been sufficient to cause death. The body appeared to have been dead for four or five days at the time of the postmortem examination on the 7th December.

From certain blood stains found in the ditch beside what is known as the Barotu feeder road, and certain other signs between that spot and the place where the body was found, it would appear that de-ceased had been killed in the vicinity of this ditch and his body carried to the creek bed where it was buried.

One Shanti Prasad deposed that on the afternoon of the 3rd December he was riding a horse along a track leading to the feeder road, and he saw deceased walking along that road with the two appellants walking eighteen or nineteen yards behind him. Witness turned on to the feeder road and overtook, first appellants and then deceased, who was wearing a white shirt and khaki shorts. He then rode on ahead and turned off into another track. Witness shortly afterwards heard a scream from the direction of the feeder road; he turned back on to this road and saw both appellants bending over someone in the ditch who was wearing a white shirt. The first appellant then said — "If this secret will be made known a similar thing will happen to you." Witness turned and rode off. In front of the house of one Mohan Lal he met three other persons, Jag Mohan, Birmanand brother of first appellant, and Vishun Dayal. Jag Mohan and Vishun Dayal gave evidence that after meeting Shanti Prasad they went on past Birmanand's house where Birmanand left them, and on to the feeder road where the second appellant, on horseback, passed them from behind.

A Fijian named Panapasa gave evidence that in the evening of the 3rd December, he and two other Fijians, Semi and Simione, met deceased coming down the feeder road, and about twenty feet behind him the two appellants. Deceased was wearing a white shirt and shorts. Later they saw Shanti Prasad on horseback. Semi and Simione both deposed to having met four persons altogether in the way described by Panapasa, but they did not know who those persons were. The appellants were also seen together on the feeder road late that afternoon by one Deo Narayan. Several other witnesses gave evidence of having seen appellants together in the general vicinity of the feeder road during the late afternoon or early evening of 3rd December.

There is also evidence of statements admitting the killing alleged to have been made by first appellant, in the presence of second appellant to Deo Narayan, and alone to Uday Nand, two of the witnesses for the Crown.

Deo Narayan stated that the two appellants came to him and first appellant said "Now that you have reported seeing that blood to the police we are going to cut you up in the same way as we cut up Jahur Buksh." Uday Nand deposed that first appellant said to him "I believe that you have given a statement . . . in the manner that I have killed Jahur I will kill another three or four."

The defence in each case set up an alibi. That of the first appellant was supported by the evidence of his father, that of the second appellant by the evidence of his wife and his brother.

Nine grounds of appeal in all were put forward, four in the original notice of appeal and five additional grounds which Counsel for appellants was granted leave to submit. These grounds overlap to a considerable extent but those upon which Counsel mainly relied may be shortly summarised as follows:

1. That the verdict is unreasonable and cannot be supported having regard to the evidence;

2. that the trial Judge misdirected the assessors in that he failed to put to them properly and adequately the defence set up by appellants;

3. that the trial Judge erred in not specifically directing himself and the assessors that the effect of previous inconsistent statements made by certain of the prosecution witnesses was to render their testimony on oath unworthy of credence;

4. that there was no evidence or insufficient evidence of participation of second appellant in the crime.

Certain aspects of the first ground of appeal set out above are closely interwoven with other grounds more specifically stated, and they will be dealt with later under other headings. The main submissions urged by Counsel for appellants exclusively relevant to the first ground may be examined under two heads:

(a) That the evidence of several of the Crown witnesses, in particular Shanti Prasad, was dictated by hostility and bias to such an extent that the evidence should have been rejected;

(b) that the main witnesses for the Crown had conspired together to give false evidence inculpating appellants.

As to the first point: there is certainly a considerable body of evidence, given in cross-examination, tending to show the existence of bad feeling among certain families living in the general area concerned in the case. Some of the witnesses, including Uday Nand and Deo Narayan, are members of a religious organisation known as the Ramayan Mundli which is said not to be on good terms with the fathers of the appellants. But there is nothing in the evidence, taken as a whole, to show that any hostility which existed would or did lead to bias of such a degree as to render the evidence of the particular witnesses unworthy of acceptance.

The most serious allegation of bias made against a witness was directed to the evidence of Shanti Prasad and was based on what was said to be witness's knowledge of his wife's infidelity with first appellant. Counsel for appellant complained that the truth or otherwise of this allegation of infidelity was not resolved by the Court, and that it should have been so that the assessors should be able accurately to estimate the grounds which the witness Shanti Prasad would have for giving false evidence incriminating first appellant.

The witness's wife gave evidence in the Court denying adultery but admitting having signed a previous statement to the effect that adultery had taken place between herself and first appellant. The trial Judge, rightly in our opinion, directed the assessors that they might very well ignore her evidence altogether. The important point is whether or not the witness Shanti Prasad believed that his wife had been unfaithful. In cross-examination he affirmed that he had never suspected first appellant of having an affair with his wife and had never questioned his wife on the subject. It is true that only the witness himself would know what was in his mind on this subject, though the Court would be entitled to draw the inference that he was not speaking the truth if the surrounding circumstances were such as to make it reasonably certain that that was the case.

The evidence is conflicting, and in our opinion it cannot well be said that either the fact of adultery or knowledge or suspicion thereof on the part of Shanti Prasad is clearly proved or clearly disproved. A side issue of this kind, bearing, as it does, only on the credibility of an individual witness, is not a matter in respect of which the Court was bound to arrive at a positive preliminary finding. The judgment treated it, quite properly, as "a matter of conjecture", and the learned Judge was entitled to say, as he did, that, even assuming the adultery to be proved, this in no way led him to doubt the reliability of Shanti Prasad's evidence.

These allegations of bias against several of the witnesses, and in particular against Shanti Prasad, who was the most important witness for the prosecution, were brought out in the cross-examination of the witnesses, were enlarged upon by Counsel in their addresses, and were referred to adequately by the learned trial Judge in his summing up. The trial Judge, acting upon the advice of the assessors, must be taken to have held that the allegations of bias could not be sustained to the point of rendering this evidence unworthy of credence. We can see no reason for interfering with his judgment on this point.

With regard to the submission that certain witnesses for the Crown had entered into a conspiracy to give false evidence against appellants, we can find in the evidence not the slightest foundation for such a contention. Some of the witnesses involved, namely Panapasa, Semi and Simione, were Fijians and did not belong to the Indian community of which some of the other witnesses were members. Counsel's argument may be put shortly in this form: the evidence of each of these witnesses is similar on certain material points to that given by the others, therefore they must have concocted the story among themselves. There are in our opinion no grounds for any such submission. As a result we find that there is no substance in the first ground of appeal.

The second ground of appeal is that there was what amounted to misdirection in that the learned trial Judge did not adequately put the defence before the assessors. At the hearing of the appeal Counsel submitted that in the course of his summing up the trial Judge had too heavily underlined the prosecution's case and not fully put to the assessors the case for the defence. In Counsel's submission the cumulative effect of the trial judge's references to the case for the prosecution would have been to make the assessors believe that the defence had no merit.

The trial Judge in summing up examined the evidence of witnesses for the prosecution one by one and summarised its general effect. In turning then to the evidence for the defence he first read out verbatim the whole of the evidence in chief of each of the appellants in turn. He then proceeded to give a summary of the evidence of each individual witness for the defence. When this had been done he said "In considering the alibi put forward by the defence you will bear in mind that the onus remains on the prosecution (I stress this) of establishing the guilt of the accused beyond all reasonable doubt." The trial Judge went on shortly to summarise the case for the prosecution and to say that if the assessors were satisfied of the truth of this case beyond all reasonable doubt then they might give their opinion that both the accused are guilty of murder.

No direct reference is made by the trial Judge to the principle that if a defence of alibi induces a reasonable doubt in the minds of the assessors as to whether or not the accused persons were at an altogether different place at the time of the crime, that doubt should be resolved in favour of the accused. The appropriate form of summing up in such cases is examined in the judgment of this Court in Ram Swamy Naidu v Reginam, Criminal Appeal No. 18 of 1961. But, as was said in that judgment, following Bullard and The Queen [1957] AC 635, the real issue is as to whether or not the jury was left in no doubt as to where the onus of proof lay.

It is certainly true that in the final few minutes of his summing up the learned trial Judge does not make reference to the evidence for the defence. But immediately prior to that he had explained the evidence for the defence in detail, including a verbatim reading of the evidence in chief of each appellant. We are unable to see in what way it can be affirmed that the procedure adopted by the trial Judge in that matter amounted to misdirection leading to a substantial miscarriage of justice. Even if his closing comments could be regarded as inferentially an expression of his opinion — and we do not think that they went as far as that — he had made it perfectly clear to the assessors that they were not in any sense bound by his views of the facts:

" On matters of fact however it is for you to reach your own conclusions. If I express any opinions on the facts of this case you are not obliged to accept those opinions. You must arrive at your own conclusions."

It has frequently been pointed out in this Court that the trial Judge is under no obligation to explain in detail the case for the defence provided that his summing-up as a whole is fair. In this respect we adopt as an accurate statement of the law what was said by the New Zealand Court of Appeal in R v Raymond [1956] NZLR 527 at 531:

" It is sufficient if we can say here, as was said by this Court in R v Radich [1952] NZLR 193, that "the summing-up was fair and adequate, bearing in mind that it is impossible for any Judge to traverse all the details of a case so complicated as this" (ibid., 206,) . Morever it is pointed out in R v Anderson [1951] NZLR 615, that in some cases if the Judge discusses an argument put forward in defence of the accused, he may be forced to introduce factors which strengthen the Crown case rather than assist the accused. To require the Judge to make reference to every such argument might have the effect of compelling him to discuss also the answers thereto; and, so long as every question of fact is left open for decision by the jury, the Judge may legitimately elect to be silent with regard to matters of defence rather than to reveal his opinion that they are groundless, or to appear to argue the case in favour of the prosecution."

In our opinion the summing up as a whole was both adequate and fair to the defence, and could not lead, of itself, to an inference such as that suggested by Counsel for appellants, namely that the defence had no merit.

We conclude therefore that there is no substance in this ground of appeal.

The third ground of appeal, concerning the effect of previous inconsistent statements made by a witness on the credibility of his evidence given at the trial, requires a careful examination of the pieces of evidence to which exception is taken.

The first witness concerned is Deo Narayan, and the inconsistency between his evidence and the statement previously given to the police is one of omission. In his statement to the police the witness made no reference to the abovementioned threat made by first appellant in the presence of second appellant, to which witness deposed at the trial. In fact this evidence appeared for the first time in the course of his cross-examination by Counsel for first appellant. The threat to which witness testified was in these words — "Now that you have reported seeing that blood to the police we are going to cut you up in the same way as we cut up Jahur Buksh." The explanation given by the witness as to his previous silence on the subject of this threat was that he was frightened; because of that fright he did not tell.

The second witness concerned was Jag Mohan. The inconsistency alleged in his case concerned the time of his journeying along the track towards the feeder road when he met Shanti Prasad and later second appellant. In his previous statement to the police, this witness said that he left Musa's Store about 5.30 p.m. and then made for home along the hill road. In his evidence at the trial, he said he left Musa's Store at 6.00 or 6.30pm and would reach the feeder road, where he met first Shanti Prasad and then second appellant, some 30 to 35 minutes later.

Counsel for the appellants stressed that this discrepancy in the time was one of some importance as it was established by the evidence of the bus driver Lal Bahadur Singh that deceased was travelling in his bus until its arrival at Barotu feeder road about 5 to 10 minutes to 7.

In the course of his cross-examination Jag Mohan said that as he went along the feeder road it was getting dark, that he did not know what was the time. He did not have a watch.

The third witness to whose evidence counsel for the appellants referred was Vishun Dayal. He testified at the trial to the effect that he left Musa's Store with Jag Mohan at between 5.30p.m. and 6 p.m. . In his previous statement to the police he said that they had left " as it was starting to get dark." He also said that the times given were an estimate and that he did not look at the time when they left Musa's Store. When he was pressed on the subject of times, he repeated that it was getting dark; and this was in fact consistent with the statement he had made to the police.

The vagueness of each of these two witnesses as to the precise hour is such that it can hardly be said there was any marked inconsistency on this point between their first statements to the police and the evidence they gave at the trial.

The last two witnesses referred to in this branch of counsel's argument were the Fijians Semi and Simione who, with another Fijian witness, Panapasa, deposed to having met on the feeder road by the culvert a tall Indian followed by two young Indians a few yards behind. The inconsistency in their case was that when first interrogated by the police they said they had not seen anyone. The explanation given by Semi was that he first told the police he had seen no one " because this is the first murder case I have come across. I was very afraid," Simione's explanation was " I was afraid at that time."

The law relating to the credibility of witnesses who have made previously inconsistent statements was carefully examined by this Court in Gyan Singh v Reginam (1963) 9 FLR 105. In the course of that judgment this passage occurs:

"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 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. It is for the Assessors to take all these factors into consideration before they give their advice to the trial Judge."

It is true that the summing up by the learned trial Judge does not contain a detailed direction such as that which was approved by this Court in Gyan Singh v Reginam. But it is not to be inferred from the passage cited that there is a preliminary issue which must be decided as a preliminary and separate question before proceeding to evaluate the testimony. It is sufficient if due consideration is given to the acceptability of any proffered explanation, and the fact that this has been done may appear inferentially from the summing up or judgment, and does not necessarily call for an express and separate decision of the point.

At the conclusion of his examination of the case for the prosecution, the trial Judge said:

"Defence counsel has properly emphasised the danger of accepting sworn evidence which is inconsistent or in conflict with statements previously made by the same witness. It is still, however, your duty to evaluate the evidence given by the witness before you, bearing this in mind."

It would no doubt have been better if the trial Judge had specifically referred to the quality of the explanation given by each of the witnesses as to the reason for the discrepancy between his sworn evidence and his previous statement to the police. At the same time it is quite clear that the discrepancies were emphasised by counsel, and the explanations offered were in each case in the mind of the Assessors. The Judge referred in his summing up to the fact that counsel had emphasised the danger of accepting such evidence, and went further by saying that the emphasis placed by counsel on this danger was proper. He then proceeded to direct the Assessors that it was still open to them to evaluate the evidence — that is to say to decide what weight should be placed upon it — bearing in mind the warning they had received. Having regard to the background of the witnesses in question and to the fact they were living a considerable distance away from the possibility of police protection, we think that there were reasonable grounds for the acceptance by the Assessors and by the trial Judge of the explanation given by some of the witnesses, namely fear that a disclosure of the truth to the police at that stage might have involved them in unpleasant consequences.

In the course of his judgment the learned trial Judge examines the alleged discrepancy in the evidence of the witness Deo Narayan in that it was for the first time in the course of his cross-examination, that he told of the threat by first appellant to cut him up in the same way they had cut up Jahur Buksh. It is clear that the late disclosure of this piece of evidence was present in the Judge's mind, that he decided none the less that it had the ring of truth, and accepted it.

The trial Judge then went on to refer to the evidence of six witnesses who deposed to the presence of both appellants in the general vicinity of the place where deceased met his death in the late afternoon or early evening of the day in question, and concluded from that evidence that the alibis advanced by the defence were utterly false. The only one of these six witnesses whose credibility was attacked by counsel on this ground of appeal was Mohan Lal. It is impossible, therefore, to say that the damning evidence of the presence of appellants in the vicinity of the crime at material times depended even largely upon that of witnesses who had made previously inconsistent statements. Even if we concluded, which we do not, that there was misdirection on the law relating to this ground of appeal, we are satisfied that no miscarriage of justice took place.

The last ground of appeal applies only to second appellant and is based upon a submission that the participation of second appellant in the crime was not established by the evidence beyond reasonable doubt. We are unable to accept this contention. There was ample evidence proving that second appellant was in company with first appellant along the feeder road shortly prior to the killing of deceased and that both appellants had in fact been following deceased along that road. There is the evidence of Shanti Prasad, which was accepted by the assessors and the trial Judge, that he had seen both appellants bending over the ditch in which it is clear deceased was lying shortly after having been attacked. There is evidence that second appellant made no protest when first appellant made the threat to Deo Narayan in the words:

" Now that you have reported seeing that blood to the police, we are going to cut you up in the same way we cut up Jahur Buksh."

Then, finally, there was the attempt of second appellant to set up an alibi, the evidence supporting which was, rightly in our opinion, rejected in the Court below.

With regard to the arguments based upon the mere presence of second appellant at the scene of the crime, we were referred to the cases considered by this Court in the appeal of Hari Krishna, Criminal Appeal No. 1A/1963, namely R v Young 8 C & P 644 and R v Coney 51 LJMC 66.

The present case, however, is entirely distinct in its essentials from the case of Hari Krishna. In the latter case, there was no evidence of any act by the appellant directly referable to the charge brought against the principal accused. In the present case, there is no direct evidence as to which of the two appellants inflicted the injuries upon the deceased; it is, in fact, a reasonable inference from the medical evidence that two persons were responsible for the assault, as from the nature of the wounds themselves, it appeared extremely probable that two separate weapons were used. If two persons did inflict the injuries on deceased, and one of these persons was first appellant, it is impossible to avoid the conclusion that the other was second appellant.

Moreover, the presence of second appellant at the scene of the crime was unexplained. As was stated by Lord Morris in R. v Sharmpal Singh [1962] AC 188 at p.198:

" This is the sort of case in which a not incredible explanation given by the accused in the witness box might have created a reasonable doubt. But there is no explanation; and the prisoner's silence is emphasised by his consequent conduct."

The consequent conduct in this case was an abortive attempt to set up an alibi. Quite independently of any conclusion to be drawn from his silence at the time of the statement made by first appellant in his presence to Deo Narayan we think that no other inference is possible from the totality of the evidence regarding second appellant's presence at the scene of the crime at material times than that he was an active participant in the crime committed.

With regard to the second appellant's silence when, in his presence, first appellant said "We cut up Jahur Buksh" when "we" could only mean first and second appellants, the prosecution does not have to rely on this as definitely proving second appellant's complicity in the crime. Its effect would be corroborative only, in that it would tend to negative any innocent explanation of the presence of second appellant at the scene of the crime if such explanation had been put forward. The crux of the matter is whether the statement made by first appellant was so made upon an occasion which might be expected reasonably to call for some explanation or denial from second appellant. In this case the very serious crime of murder was involved and we find it hard to believe that a man who was entirely guiltless of any participation in that murder, would have stood by and listened without protest to a statement made directly inculpating him.

In our opinion the only inference to be drawn from appellant's silence on that occasion is an inference of guilt; but there is ample evidence quite independently of this to prove such participation of second appellant in the crime as to make him guilty as a principal offender. Accordingly we are of opinion that there is no substance in this ground of appeal.

Although nine grounds in all were put forward in respect of the appeal, they did not cover any matters which have not been dealt with in the opinions we have expressed on the four grounds which summarise the contentions put forward by the appellants. In our opinion none of those grounds of appeal has been shown to have any merit. For these reasons both appeals are dismissed.

Appeals dismissed.

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^[*] Application for leave to appeal to the Privy Council was refused.