Naidu (alias Kutti) v Reginam [1964] FijiLawRp 6; [1964] 10 FLR 153 (21 August 1964)

[1964] 10 FLR 153

COURT OF APPEAL OF FIJI

Criminal Jurisdiction

MUNSAMY NAIDU (alias KUTTI)

v

REGINAM

Mills-Owens P., Marsack J.A., Briggs J.A.

July 8^th - 10th, August 21st, 1964

Criminal law — evidence — confession — custody of police — whether appellant at liberty to depart.

Criminal law — evidence — confession — voluntariness — confrontation of accused by witness

Criminal law — misdirection of assessors on matter of fact — no miscarriage of justice.

The appellant was convicted of murder upon evidence consisting almost entirely of his own confessions, which included a signed statement made in the police station at 7.15 p.m. on the 10th December, 1963, in which he admitted killing the deceased by striking him a number of blows with his cane knife; he claimed to have done this at the instigation of one Y. S. Mani. At the trial the appellant gave evidence that his self-incriminatory statements of the 10th December were the result of threats by the police that he would be hanged the following day if he did not make a statement implicating Y. S. Mani, and of pressure by Kamla Wati, a daughter of the deceased, that he should confess and blame Y. S. Mani.

On the appeal it was submitted (inter alia) (a) that the appellant had been in custody from 1 p.m. to 7.15 p.m. on the 10th December or had every reason to believe that he was in custody and (b) that the confessions of the 10th December were the result of a confrontation of the appellant by Kamla Wati arranged with the connivance of that witness and the police.

Held –

1. That though the appellant may have mistaken the effect of a search warrant which was shown to him, there was no reason to interfere with the trial judge's finding of fact that he was not in custody.

2. It is well established law that a person who is taken to a police station in such circumstances that he is led by the conduct of the police to believe that he is not at liberty to depart, is in the custody of the police. That had not happened in the present case and the evidence did not show that the police acted in such a way as to make the appellant think that they would detain him if he attempted to leave.

3. There was conflicting evidence as to the circumstances leading up to the confrontation of the appellant by Kamla Wati and there was no reason to disturb the trial judge's finding that none of the threats or inducements alleged by the defence was ever made or held out to the appellant. The court could not accede to the suggestion that it was a subtle form of torture to confront the appellant with his accuser even at his own request.

The trial judge misdirected the assessors as to the implications of one aspect of Kamla Wati's evidence.

Held –

That the trial judge's comments would have had no effect on the opinions of the majority of the assessors as to the guilt of the appellant, which were based on evidence independent of that of Kamla Wati, and that no substantial miscarriage of justice had resulted.

Cases referred to: R v Bass [1953] 1 Q.B. 680; [1953] 1 All ER 1064: R v Sargeant [1963] Crim LR 848: Smith v R (1956) 97 CCLR 100: Chalmers v H.M. Advocate [1954] SLT 177; [1954] SC (J.) 66: Sheikh Hassan v R (1963) 9 FLR 110.

Appeal against conviction.

S. M. Koya for the appellant.

B. A. Palmer for the Crown.

The facts sufficiently appear from the judgment.

Judgment of the Court: [21st August, 1963]—

This is an appeal against conviction for murder on the 18th March, 1964. The trial took place before a judge and five assessors. Four of the assessors gave their opinion that the appellant was guilty of murder; the fifth expressed the opinion that he was not guilty. The trial Judge gave judgment in accordance with the opinion of the majority of the assessors, entered a conviction for murder and passed sentence of death.

Five grounds were set out in the notice of appeal; but they overlap to a certain extent and they can be shortly summarised as follows:

1. That the confessions made by the appellant to the police on the 10th December, 1963, were not voluntary and should not have been admitted in evidence;

2. That the oral admission made by appellant to one Mohammed in the Ba Prison should not have been admitted in evidence;

3. That the verdict was unreasonable and could not be sup-ported having regard to the evidence.

The facts are briefly these. The appellant, who is 19 years of age, had worked for the deceased, Ram Samy, for about two years and during six months of that time he lived at the deceased's house at Tauarau. There was some suggestion of a marriage between the appellant and Kamla Wati, the daughter of the deceased, but the appellant's parents were not prepared to give their consent. A farmer of some substance in the district, Y. S. Mani, was on friendly terms with the deceased's wife, Subhadra, and used to visit Subhadra when the deceased was absent from the house. On Friday, 6th December, 1963, Y. S. Mani went to Suva taking with him Sumintra Devi, a daughter of the deceased. That evening some Fijians, who were in the vicinity of deceased's house, heard cries coming from the house and immediately went to investigate. This, according to their evidence, was at approximately 8.30 p.m. When they arrived near the house they saw the deceased coming away from the house; he was crying out and in considerable distress. The deceased was admitted to Lautoka Hospital at 11.30 p.m. that same night and died shortly before 1 p.m. the following day. His body showed six separate wounds to the face, right hand and arm, and his back. Death was due to shock following the infliction of these multiple wounds coupled with the collapse of the right lung caused by one of them. All the wounds had been inflicted by a sharp instrument such as a knife. From the nature of the wounds themselves it is impossible that they could have been self-inflicted, and the only conclusion that can be reached is that the person who inflicted them was guilty of murder.

The evidence against the appellant consisted mainly of his own confession, without which there was clearly insufficient evidence to lead to a conviction. The only extraneous evidence against the appellant was that he had sharpened his cane knife the previous night, although he did not intend to cut cane the following day. Blood was found on this knife, but the pathologist was unable to say whether the bloodstains were of human or animal origin.