Mati v State [1992] FijiLawRp 31; [1992] 38 FLR 120 (3 July 1992)

[1992] 38 FLR 120

COURT OF APPEAL OF FIJI

Criminal Jurisdiction

1. JAY MATI

v

THE STATE

2. THE STATE

v

NARAYAN SINGH

Helsham P, Tikaram, Kapi JJA.

3 July 1992

Crime - procedure - trial within a trial - whether contrary to law to hold in the presence of the assessors - whether failure strictly to comply with requirements for contents of judgment a curable defect - whether trial Judge should have rejected the unanimous opinion of the assessors.

The Court of Appeal HELD: (1) that there is no absolute requirement that the usual practice of holding a trial within a trial in the absence of the assessors be followed; (2) although the judgment acquitting the 2nd Respondent was defective there was no miscarriage of justice and no ground for re-trial; and (3) that the trial judge had wrongly over-ruled the unanimous opinion of the assessors.

Cases cited:

Ajodha v The State (1981) 2 All ER 193
Ganga Ram v R (Crim. App. 46/1983)
Hasan Raja v Reginam 10 FLR 1
R v Anderson (1929) 21 Cr. App. R. 178
Ram Dayal v Reginam 7 FLR 25

I. Mataitoga (Director of Public Prosecutions) for the State
H. Sharma for the 1st Appellant and 2nd Respondent

Cross appeals against acquittal and conviction in the High Court.

Judgment of the Court:

Jay Mati (Appellant in Criminal Appeal No. 1 of 1991) and Narayan Singh (the Respondent in Criminal Appeal No. 2 of 1991) were jointly charged with G the offence of murdering one Davendra Dutt (husband of Jay Mati) at Nadi between the 1st and 2nd March, 1990. They Nyere tried before Mr Justice Michael Saunders at Lautoka High Court in January 1991 with the aid of 5 assessors. In the trial in the High Court Narayan Singh was Accused 1 and Jay Mati was Accused 2.

It was the prosecution's case that the 2 accused were lovers and they planned to kill Dutt so they could live together and that in pursuance of the plan the 2 accused strangled the victim with a piece of rope and then hung him by the neck from .a mango tree thus giving the impression of suicide by hanging.

The question of voluntariness of Narayan Singh's interview statement to Police which allegedly contained a confession arose right at the outset of the prosecution's case. In asking for a trial within a trial the Prosecutor said -

"That is my position. If these statements are inadmissible, I cannot proceed. There are no other issues or evidence sufficient to prove my case."