Naliu v Public Prosecutor [1986] VULawRp 2; [1980-1994] Van LR 266 (27 February 1986)

[1980-1994] Van LR 266

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Appeal Case No. 2 of 1985

BETWEEN:

PETER NALIU
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Cazendres J
Williams J

Counsel: Mr Dickinson, Public Prosecutor
Mr Rissen, Public Prosecutor

JUDGMENT

[CRIMINAL LAW - EVIDENCE - admission of voluntary statement - summing up]

The Appellant in this case was charged with intentionally assaulting his wife and causing her death contrary to Section 107 (d) of the Penal Code, on 15th December 1984.

His trial commenced on 11 February 1985 and it lasted two days at the end of which he was convicted and sentenced to two years' imprisonment.

He has appealed against his conviction and sentence and the memorandum of appeal was filed on 20th February 1985.

It is most unfortunate that he should have to wait just over a year for his appeal to be heard.

The grounds of appeal are that the Court erred in law and in fact in its findings, and that a confession of the accused was wrongly admitted.

At the commencement of the hearing of this appeal the Appellant was permitted to add a fresh ground of appeal that the evidence before the Court was insufficient to support a conviction.

Mr Rissen pointed out that, during the voir dire the accused was questioned as to the truth of his statement and Mr Rissen referred to Wong Kam-ming v Queen [1978] UKPC 34; (1979) 1 AER 939 (P.C.) wherein the Privy Council stated that Counsel should not be permitted to cross examine the accused as to the truth of any of the contents of his statement. The only issue to be decided is the voluntary nature of the statement and I have always understood that the voir dire was not concerned with showing it to be true. There could, I think, be a danger that if the Judge thought the contents were true he may incline to the view that they were given voluntarily, whereas if he were of the opinion they were untrue he may consider it to have been involuntary. As has been pointed out many times, it is the jury who have to determine the probative value of the statement if it is admitted. There is nothing in the record which leads me to conclude that the irrelevant and improper cross examination of the accused during the voir dire as to the truth of his statement had any adverse effect on the Judge's approach to the issue of voluntariness.

Police Sergeant P.W. Reuben interviewed the accused at the police station under caution. His evidence is that the statement was made voluntarily. No doubt the police Sergeant with his experience knows what is meant by "voluntary" in regard to such statements i.e. absence of any force, or threat, pressure or inducement by way of some favour which could be shown and so forth. Following cross examination of the Sergeant, the accused gave his evidence.

The learned Chief Justice saw and heard the witnesses. There was evidence from the Prosecution which, if believed, demonstrates that the statement was given voluntarily. It was believed by the Chief Justice and I can see no reason for holding that he should not have done so. Accordingly, his ruling or finding to that effect was not erroneous.

With regard to the additional ground of appeal that the conviction is one which cannot be sustained by the evidence, Mr Rissen contended that the judgment itself contained contradictory material. He referred to the evidence of Dr Tyson.

In order to follow the relevance of Dr Tyson's evidence, it is necessary to refer briefly to the other evidence. In his statement to the police, the accused said that he had thrown a stick at his wife, that it had hit her between the back of her head and neck and he stated that he thought that blow had caused her death. In evidence he said the stick had not hit her but had fallen short. One might anticipate that the evidence of Dr Tyson could give an indication of which of the accused's statements was correct in regard to the possibility of a substantial blow to the back of the head. There appears to be no doubt that there was some altercation in the accused's garden on 15th December between the accused and his wife, during which there could have been the use of some violence. On 16th December, the wife was dead. Was her death related to the possible use of violence upon her? The accused's admitted police statement points to that possibility that she received a blow on or near the base of the skull.

Evidence from Dr Tyson could corroborate either of the two versions given by the accused and help to establish whether or not she had received a blow to the head.

Dr Tyson carried out his post mortem examination on 16th December. He found no external sign of violence. He did not say that he found no internal or other signs of violence. He said "It could be one of two things" which caused the brain damage - "blow to the head, one cause. Secondly, spontaneous abnormality led blood vessel to burst". He went on to say "Blow on head may have caused death". The doctor then explained that a severe blow to the head could, in effect, shake the brain in such a way that the brain damage could occur in an area of the head removed from the blow. He ruled out the possibility of the injury to the brain being caused by a fall.

It follows that it could be due to a spontaneous abnormality or to a severe blow. The medical evidence is fairly typical of that which is received in such cases. The doctor was not at the scene, he does not know if a blow was struck but his evidence shows that the brain damage was consistent with a blow.

The defence complain of a statement appearing in the Judgment of the Chief Justice at page 28 of the record which reads:

"There was no alternative cause of death other than a blow at the back of the head with a stick as stated in the cautioned statement of the accused."

The defence refer to another statement of the Chief Justice on page 28 also, in which he says, when referring to the evidence of the doctor:

"He expressed an opinion that the cause of death was blood in the brain tissue or cerebral haemorrhage. That it could be one of two causes, a blow on the head or spontaneous abnormality - a bursting blood vessel. He said 'The blow on the head may have caused death'".

Mr Rissen, for the Appellant, urges that those two quotations from the judgment are contradictory. Mr Dickenson, the Public Prosecutor, supported that contention and that the evidence could not support the conviction. Nevertheless, Mr Dickenson regarded the accused's police statement as rightly admitted as a voluntary statement.

It appears that both Counsel may have regarded the above quoted parts of the judgment as expressions of the Judge's opinion. In fact, he quoted the doctor's opinion that there could be two causes of death - (a) natural and (b) a blow to the head. Then he clearly expressed his own conclusion as to which of those two causes was, in his view, the acceptable cause of death having regard to the evidence, namely the blow.

It may have been a little misleading when the Chief Justice expressed himself in that fashion, giving his conclusion at that stage without first mentioning the other evidence which supported that conclusion. However, he then went on to review the evidence, especially the evidentiary value of the accused's cautioned statement. He considered that it was truthful to the extent that the accused had inflicted a blow to the back of the deceased's head. That finding was reached after careful examination of the accused's evidence and we see no reason for rejecting that conclusion. It was a perfectly reasonable deduction.

The accused retracted his cautioned statement but there was ample evidence from him to corroborate it. Thus he never denied being in the vicinity when his wife died, he confirmed that there was a heated argument and a violent quarrel between his wife and he prior to her death and that he threw a stick at her. He admits that soon after this, he was taken to his wife who was prostrate and apparently unconscious. The only part of his statement which he retracts is the portion to the effect that the stick hit her. Those are all statements against his own stance in the course of his trial, in as much as they materially corroborate his police statement which he says was not wholly true and not voluntary.

Having regard to the doctor's evidence that a blow could have caused the brain damage, it was natural to conclude that a blow did cause it and it was the blow which was described by the accused in his police statement.

In saying there was "No alternative cause" - only the blow - the Chief Justice was not mis-quoting the doctor, he was expressing a finding of his own after being told that death could be due to one of two causes. The Chief Justice was making a finding as to which of the two causes was clearly supported by the evidence to the exclusion of the other.

We are satisfied that there was no misdirection. There was ample evidence to justify the conviction.

The cautioned statement was rightly admitted.

The appeal is dismissed and the conviction is upheld. The sentence is confirmed.

We wish to refer to one or two other matters connected with the proceedings.

Section 178 (ii) of the Criminal Procedure Code states that the summing-up shall be part of the record. There is no summing-up in this record. This should be remedied in all future sittings of this Court. It may necessitate an adjournment for a day but that is what happens in other countries where the procedure is similar.

There is no provision in the Criminal Procedure Code that we find, which provides for a judgment to be delivered by the Judge where there is no disagreement between the Judge and the assessors. In this case, there was no disagreement and no reason for a Judgment, so far as we are informed.

The Judgment was "delivered" after conviction and sentence. We have, with some hesitation, treated "the Judgment" as a deferred recording of the "summing-up" rather than take a course which would delay the hearing of this appeal even further.

Dated at Vila this 27th day of February, 1986.

L. CAZENDRES
JUDGE

J. WILLIAMS
JUDGE