Singh v Reginam [1965] FijiLawRp 28; [1965] 11 FLR 119 (16 June 1965)

[1965] 11 FLR 119

COURT OF APPEAL OF FIJI

Criminal Jurisdiction

PREM CHAND SINGH AND ANOTHER

v.

REGINAM

[COURT OF APPEAL, 1965 (Marsack V.P., Gould J.A., Knox-Mawer J.A.) , 17th May, 16th June]

Criminal Law-aiding and abetting-common intention-knowledge of intention to assault but not of intention to use a lethal weapon.

Criminal law-evidence-previous inconsistent statements by witnesses-direction to assessors.

Criminal law-defence-manslaughter-elements of-no evidence establishing reasonable possibility of presence of legal requirements-unnecessary to leave defence to assessors.

Where witnesses have previously made statements inconsistent with their testimony in court it is necessary for the judge in summing up to draw the attention of the assessors to the need to scrutinize very carefully their evidence and to the duty of rejecting that evidence unless there was outside corroboration or an adequate explanation as to why the story had been changed.

Where there is no evidence establishing a reasonable possibility of an act of provocation, loss of self control both actual and reasonable, and retaliation proportionate to the provocation, it is not necessary for the trial judge to leave the defence of provocation to the assessors.

The second appellant allowed his car to be used as a means of approach and escape by the first appellant and stayed in a position where he was able readily to come to the aid of the first appellant while the latter stabbed the deceased with a knife:

Held: These findings did not necessarily establish that the second appellant was guilty of aiding and abetting the crime of murder. It was a proper inference from the evidence that the second appellant knew that the first appellant intended to assault the deceased but not that he intended to do so with a lethal weapon.

Cases referred to: R. v. Harris [1927] 20 Cr App R 144: Gyan Singh v. Reginam [1963] 9 FLR 105: Ravi Nand v. Reginam [1964] 10 FLR 37: R. v Raymond [1956] NZLR 527: Lee Chun-Chuen v. Reginam [1963] AC 220; [1963] 1 All ER 73: Mancini v. Director of Public Prosecutions [1942] AC l; [1941] 3 All ER 272: R. v. Murtagh & Kennedy [1955] 39 Cr App R 72: Kwoku Mensah v. R. [1956] AC 83; 174 LT 96.

Appeal against conviction by the Supreme Court.

J. N. Falvey for the appellants.

G. N. Mishra for the Crown.

The facts appear sufficiently from the judgment.

Judgment of the Court: [16th June, 1965]-

These are appeals against conviction for murder entered in the Supreme Court of Fiji at Lautoka on the 22nd March, 1965. The appeals were, by consent, heard together. The trial of both appelants 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 the appellants may be shortly summarised as follows. On the 28th November, 1964, at about 1.30 p.m. a fight took place in the street near Ram Roop's store at Lautoka. Several persons participated in this fight, including Ram Kirpal, brother of the deceased Hari Prasad, and Mahendra, brother of the 1st Appellant. When the disturbance was broken up by the Police, Ram Kirpal and Mahendra started out for the Lautoka Police Station with Constable Posece.

Shortly afterwards the appellants learned of the trouble and set out in the 2nd appellant's car, which was driven by a third person, towards the Police Station. The appellants are cousins.

On their way to the station they overtook the deceased who was walking up Yawini Street some distance behind Constable Posece and those with him. The car stopped some 15 yards behind the deceased Hari Prasad. The 1st Appellant -or perhaps both appellants -left the car and ran quickly up to the deceased. A short altercation took place between the 1st appellant and the deceased, after which the 1st appellant returned to the car which moved away out of Yawini Street and down Mara Street. While they were going away the deceased called out that he had been struck by a dagger and the men concerned were running away in a car. The deceased was found to be suffering from a severe incised wound in the abdomen. The wound had obviously been caused by a knife or similar instrument. The deceased was taken to hospital where he died some two hours later. The cause of death was severe haemorrhage and shock resulting from the wound.

There can be no doubt that the wound was sustained by the deceased at the time the deceased and the 1st appellant, or both appellants, were together. The case for the Crown is that the 1st and 2nd Appellants had left the car and had run up to the deceased with the intention of killing him or inflicting grievous bodily harm upon him; that the 2nd appellant held the deceased while the 1st appellant stabbed him with a knife; and that when this had been done both appellants ran back to the car and were driven away.

The 1st appellant gave evidence that as the car was approaching the deceased he asked the driver to stop the vehicle and he then got out and went to speak to the deceased. He asked the deceased what was the cause of the trouble; the deceased threatened him and aimed a blow at the 1st appellant with a knife. In the ensuing struggle the 1st appellant received a slight wound in the left hand. The deceased and 1st appellant grappled and fell into a drain at the side of the street. As soon as he could get free the 1st appellant ran off to the car. He gave no explanation in his evidence as to how the injuries were caused to the deceased, and said that when he made off he did not know that deceased was hurt.

The 2nd appellant denied ever having left the car and deposed that he was unaware of any intention on the part of the 1st appellant to attack the deceased. He further stated that he did not in fact see what took place.

Issues were put to the Assessors and they, in answering the questions put to them, were unanimous that the deceased had received his wounds in the course of a deliberate attack upon him by the 1st appellant; and, furthermore, that the 2nd appellant did not hold the deceased at the time. The Assessors were not specifically asked what part, if any, the 2nd Appellant played in the attack upon the deceased, but in unanimously expressing the opinion that the 2nd appellant was guilty of murder they must be taken to have found it proved beyond reasonable doubt that the 2nd appellant had aided and abetted the commission of that crime by the 1st appellant.