Wali v State [2001] FijiLawRp 42; [2001] 1 FLR 192 (24 May 2001)

DANIEL AZAD WALI v STATE

Court of Appeal Criminal Appellate Jurisdiction

24 May, 2001

AAU 0053/99S

Murder – sentencing to life imprisonment - evidence – corroboration – statements inconsistent with the evidence – credibility of a witness

Nanise Wati, the Appellant in this proceedings and one Daniel Azad Wali were charged and convicted with murder of Reena Bibi on 5 October 1996. The trial began in the High Court on the 12th of August 1999 and on the 20th of September 1999 both the accused were found guilty of murder and sentenced to life imprisonment. Daniel Wali appealed against the conviction and sentence. The grounds of appeal were failure by the trial judge to give the assessors: 1. An adequate or proper direction on corroboration of the evidence of an accomplice Sophie Radrodro; 2. a chance to comment adequately or at all on inconsistencies in the evidence of prosecution witnesses; 3. To direct the assessors on important facts which favoured the defence. The court found that Sophie Radrodro, a very important witness for the state, made inconsistent statements in evidence that she gave in court.

Held - Corroboration is any evidence which comes from an independent source and which affects an accused person by connecting or tending to connect him or her with the crime in question. Further it must be evidence which implicates an accused person that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the accused person committed it. A number of incidents referred by the judge to assessors as having a corroborative effect did not meet the requirements of corroboration according to law because they did not satisfy the test of implicating the accused.

Appeal allowed. The conviction and sentence are quashed and a new trial is ordered.

[Note: subsequently, on a retrial, the accused was acquitted and discharged: HAC 012/01 21 August 2001]

No cases referred to in Judgment

Abhay K.Singh for the Appellant
Josaia K Naigulevu for the Respondent

24 May, 2001

JUDGMENT

Casey, Gallen, Byrne, JJA

On the 28th of April 1999 Nanise Wati the Appellant in these proceedings and one Daniel Azad Wali were charged with the murder of Reena Bibi on the 5th of October 1996. The deceased Reena Bibi was murdered at her place 48 Milverton Road, Raiwaqa. A post mortem was carried out by a Doctor R.B Cayari who said that in his opinion the cause of death was a "slashed injury to the neck" which caused severe hemorrhaging and that a sharp instrument was used to cause the injury. The trial began in the High Court on the 12th of August 1999 and on the 20th of September Nanise Wati and the Appellant were found guilty of murder and sentenced to life imprisonment.

Nanise Wati did not appeal against her conviction and sentence but the Appellant did and his appeal is now before the court.

Apart from all other Prosecution witnesses' one very important witness was Sophia Radrodro who said that she knew the deceased Reena Bibi quite well. According to Sophia Radodro that on Saturday October 1996 she went to Chequers Night Club at about 7.00pm. She met Nanise Wati and Daniel Wali there. Nanise Wati then asked Sophia if she could take them to Reena Bibi, as Nanise Wati knew Sophia Radrdro and Reena Bibi were good friends.

At about 10.30 pm the three went to Reena Bibi's flat in a taxi driven by Pita Nasedra. As they arrived at Reena Bibi's place, Sophia then led them to the house and she knocked and called out Reena Bibi's name who in return responded and opened the garage/ carpot door. The deceased opened the door and then walked back inside not knowing that Nanise Wati and Daniel Wali were following Sophia Radrodro in the house.

As Reena Bibi approached the passage she then turned back and when she saw Nanise Wati and Daniel Wali she rushed back passing Sophia Radrodro and tried to push Daniel Wali at the doorway. A struggle followed between Daniel Wali and Reena Bibi at the doorway. During the struggle Bamboo beads, which were hanging at the doorway, broke and fell on the floor. According to Sophia Radrodro Daniel Wali dragged Reena Bibi into the bedroom. Nanise Wati followed Daniel Wali into the bedroom but before doing so had closed the garage door. Sophia said that she heard Reena Bibi yelling and after a while the yelling stopped. Sophia then was scared to check on what had happened but finally she decided to go in the bedroom. She said that she saw Reena Bibi lying on a mattress and blood coming from her neck. Blood was all over the place. Sophia then said that she saw a blade not very long in Daniel Wali's hand.

In cross-examination Sophia Radrodro said she told lies to the Police when first questioned. Sophia Radrodro said she could not hold the truth back any longer and told the truth to the Police in 1999. Sophia Radrodro also said that the reason why she finally told the truth about the murder was that she had confidence in the new team of Police Investigators brought into the case.

The trial began in the High Court on the 12th of August 1999 and on the 20th of September 1999 in which both the accused were found guilty of murder and sentenced to life imprisonment.

Daniel Azad Wali appealed against his conviction and the appeal was allowed and the conviction and sentence quashed, however a new trial was ordered and eventually Daniel Azad Wali was acquitted. The present Appellant, Nanise Wati sought leave appeal out of time and the court granted her application.

At the hearing the Appellant relied however on 4 main grounds. These were:

1. That the direction on intent was inadequate.
2. That the direction on joint enterprise was inadequate.
3. That the judge failed to adequately direct the assessors on the law relating to principal offenders and whatever part the Appellant may have played and
4. That the summing up contained errors of law with regard to corroboration.