Raj v Reginam [1969] FijiLawRp 4; [1969] 15 FLR 40 (4 March 1969)

[1969] 15 FLR 40

COURT OF APPEAL

Criminal Jurisdiction

SHIU RAJ

v

REGINAM

[COURT OF APPEAL^[1] 1969 (Knox-Mawer P., Gould J.A., Marsack J.A.),

21st February, 4th March, 1969

Criminal law – evidence and proof — trial with a trial — ruling that admissions by point of time be excluded — judge's discretion — consistency evidence ruled inadmissible having effect upon judge's mind and procedure — statement by accused — practice of taking of Peace to ascertain whether accused has any complaint concerning police conduct.

Criminal law — trial—summing up — must be looked at as a whole.

The appellant was questioned by the police in the course of their investigation of the killing of the deceased and at first said that he had been hitting a dog with an axe and the axe struck the deceased. He was then cautioned. A few more questions were then put, when the appellant started to cry, remained silent for about fifteen minutes and then confessed to having struck the deceased with the axe in anger. The questioning was continued and further incriminating admissions were made. At the appellant's trial for murder the trial judge ruled that after the admission of having struck the deceased in anger the appellant should have been cautioned again as, after the fifteen minutes' silence the effect of the first caution might have started to wane. The judge therefore excluded from evidence the answers given after the admission last mentioned. On appeal it was contended that that admission also should have been excluded.

Held: 1. That the admission was rightly admitted in evidence. Only three questions had been put since the caution and prior to the fifteen minutes' silence, and the caution must have been fresh in the appellant's mind during that period. The exclusion of the later answers in the exercise of the judge's discretion was more than fair to the appellant.

2. The mere fact that a judge has heard evidence which he decides to be inadmissible cannot be made a ground of appeal in the absence of any indication that he has actually been influenced by the evidence excluded.

Per curiam: (i) The practice of having a Justice of the Peace interview an accused person, after he has made a statement to the police, to enquire whether he has any complaints as to the conduct of the police in obtaining the statement, is one in which certain dangers are inherent.

(ii) The summing up must be looked at as a whole and criticism of isolated sentences is frequently ill-founded.

Appeal by leave out of time from a conviction by the Supreme Court on a charge of murder.

B. C. Ramrakha for the appellant.

G. N. Mishra for the respondent.

The facts sufficiently appear from the judgment.

Judgment of the Court (read by GOULD J.A.): [21st February 1969]—

The appellant was given leave to appeal out of time from his conviction by the Supreme Court of Fiji sitting at Lautoka on a charge of murder. He was tried jointly with one Kanda Sami Naikar for the murder of one Mangamma d/o Lalaiya on the 23rd October, 1967, at Lovu, Lautoka, and, on the 19th March, 1968, both accused were convicted of that offence and each was sentenced to imprisonment for life. In Criminal Appeal No. 13 of 1968 this Court dealt with the appeal of Kanda Sami Naikar, which was allowed, a conviction of manslaughter being substituted for that of murder on the 22nd October, 1968.

The facts alleged, so far as they are relevant to the case against the appellant, may be stated briefly. He was employed by and had a house in the same compound as, one Subramani, who was the husband of the deceased Mangamma. Mangamma was found dead in the compound on the 23rd October, 1967, the cause of death being "internal haemorrhage due to rupture of the major blood vessels around the neck". She had suffered two blows from a blunt instrument, one on the chin and one on the anterior base of the neck. Death would have been almost instantaneous and an axe found nearby stained with human blood was the obvious instrument. There was evidence that the members of the family, save only the deceased and the appellant, were absent from the compound on the morning of the 23rd October, 1967; there was also evidence that the sum of £104 had been taken from the house of Subramani and the deceased at or about the same time, though none of this money was found in the possession of the appellant.

The vital evidence against the appellant consisted of oral admissions made by him to Det. Corporal Permal on the night of the 26th October and a written statement made on the 27th October after charge and caution, to which he affixed his thumb-print. The following passage from the record of Corporal Perrnal's evidence contains the oral ad-missions:—

"Q: Did you question him again?
A: I did. I asked him in Hindustani —

• (q) Do you wish to say to the Police?
• (a) Babu, I made a mistake. I was hitting the dog with the axe. The axe struck the Auntie.

At this stage I cautioned Shiu Raj in Hindustani.

• (q) You are not obliged to say anything but you may say whatever you wish to do but whatever you would say may be written down and given in evidence.

Q: Did he appear to understand that caution?
A: Yes.
Q: Did you continue the conversation?
A: Yes.
Q: Now tell us what questions you asked?
A: (q) But, Shiu Raj, it is a very small dog and the Auntie is tall and how is it that she was struck?

• (a) Auntie was sitting down when I struck the dog.
• (q) Which dog did you hit?
• (a) The red one.
• (q) Why did you hit the dog?

He made no reply to this question and he started crying. He did not utter any words for about fifteen minutes. Shiu Raj then said —

(a) Babu ji, I have made a mistake. Save me.
(q) How did you make the mistake?