<
REGINAM
Respondent
p class=MsoNormaNormal style="text-indent: -28.9pt; margin-left: 28.9pt; margin-top: 1; margin-bottom: 1"> Mr. S.R. Shankar for the Appellant
Mr. Jennings for the Respondent
Date of Hearing: 8th and 16th November, 1979.
Delivery of Judgment 28/11/79.
JUDGMEpan>
Spring J.A.
The appellant Baswa Nand Sharma was convicted by the Supreme Court of Fiji at Lautoka on 23rd May 1979 of the crime of murder contrary
to section 228 of the Penal Code (Cap. 11). The trial was before a Judge and 5 assessors; each assessor returned an opinion that the appellant was guilty and the
Judge concurred therein.
The facts may be briefly stated. On 18th December 1978 the appellant and his visited the wife's parents at Nadi; they returned to
theirtheir home at Johnson Road Lautoka at about 9.30 p.m. A quarrel ensued between them and the appellant, as he claimed, in a fit of anger poured kerosene over some clothes and over his
wife; he ignited the kerosene with the result that his wife suffered severe burns from which she inter died in hospital just after
midnight on 21st December 1978. The appellant was subsequently charged with murder; and the trial began at Lautoka before Mr. Justice
Dyke and assessors. It was agreed by the prosecuting and defence counsel that the question of the admissibility of the appellant's
statements be considered at the commencement of the trial; accordingly a voir dire was held, at the conclusion of which, the statements
were held to be voluntary and admissible. The appellant gave evidence on the voir dire; during the course of his ruling the learned
judge commented adversely on the appellant's credibility. Unfortunately the Judge's comments were published in the newspapers and
broadcast over the radio.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On 16th March 1979 when rial resumed the learned judge directed Crown Counsel in view of the injurious publicity toty to file a nolle
prosequi which was duly entered pursuant to section 71 of the Criminal Procedure Code (Cap. 14). The appellant was discharged and then released. Outside the court house the appellant was arrested by Police and taken
back into custody where he remained until his trial commenced before Mr. Justice Williams and 5 assessors on 7th May 1979. The Director
of Public Prosecutions signed a fresh Information in identical terms to the former one charging the appellant with murder; this Information
was filed on 23rd March 1979. No fresh preliminary inquiry was held after the entering of the nolle prosequi on 16/3/79. The appellant
appeals to this court against his conviction on 5 grounds of appeal.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The 1st ground of appeal raised the question whether the Crown when it entered the nolle prosequi, on 16th March 1579 could subsequently
file a fresh Information charging the appellant with the crime of murder arising from the same facts without the accused person being
committed for trial anew at a second preliminary inquiry. Counsel for the appellant referred to section 71 of the Criminal Procedure Code (Cap. 14) and argued that once the none prosequi was entered the appellant was discharged from liability under the Information which
was thereby extinguished and could not be revived; also that the depositions had ceased to have any further effect and could not
be treated as the basis for supporting another trial upon a fresh Information charging the appellant with murder. Section 71 of the
Criminal Procedure Code reads:
ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "71(1) In any criminal case and at any state thereof before verdicjudgment, as the case may bmay be, the Attorney - General may
enter a nolle prosequi either by stating in court or by informing the court in writing that Crown intends that proceedings shall not continue, and thereupon
the accused shall be at once discharged in respect of the charge for which the nolle proseque is entered and if he has been committed shall be released, or if on bail recognizances shall be discharged; but such discharge of
an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts.
(2) If the accused shall not be before the court when such nolle prosequinolle prosequi to be given to the officer in charge of the prison in which such accused may be detained, and also, if the accused person has been
committed for trial, to the magistrate by whom he was so committed, and such magistrate shall forthwith cause a similar notice in
writing to be given to any witnesses bound over to prosecute and give evidence and to their sureties (if any) and also the accused
and his sureties in case he shall have been admitted to bail."
Crown Counsel argued that the entering of a nolle prosequi put an end e proceedings before the Supreme Court, but that it was no s
no bar to fresh proceedings, i.e. to a new Information charging the appellant with murder being sworn, filed and issued out of the
Supreme Court based on the same facts as disclosed in the preliminary inquiry without the necessity for holding a fresh preliminary
inquiry.
We have been referred to Poole v Rm (1960) 3 W.L.R. 770 which was a case where the appellant having been committed for trial by a magistrate on a charge of murder was arraigned before the
Supreme Court of Kenya. After Crown counsel had opened the case, and before the first witness was called, one of the jury stated
that he had a conscientious objection on religious grounds to giving a verdict in the case. After an adjournment of about three hours
Crown counsel, on resumption of the court, entered a nolle prosequi and at the same time handed in a fresh information, which has
been signed during the adjournment by the acting senior Crown counsel on behalf of the Attorney-General, charging the appellant with
the murder in the same terms as the first information. The appellant, having been immediately discharged in respect of the charge
for which the nolle prosequi had been entered, was thereupon served with the new information and was at a later date tried on it
and convicted.
The appellant appealed against his conviction, nding, inter alia, that on the true construction of section 82 of the Criminal Procedure
Core Code the entry of nolle prosequi brought the prosecution to an end subject always to the right of the Crown to start another
prosecution against him de novo by re - arresting him and taking him again before a subordinate court with a view to a fresh committal
for trial. The words used in section 82 of the Criminal Procedure Code of Kenya are exactly the same as the words appearing in our section 71 (supra). The Judicial Committee of the Privy Council in upholding
the decision of the East African Court of Appeal said:
“........the words ‘in any criminal and at any stage thereof before verdict or judgment’ in subn subsection (1) and the provisions
of subsection (2) make it clear that in Kenya a nolle prosequi may be entered at different stages and. before an information has
been signed. It follows from. this that the words ‘the charge’ must necessarily have a different meaning according to the stage at
which it is entered. If entered before committal it must necessarily refer to the charge drawn up and signed under section 89 (4),
and if entered after committal and before an information has been signed it will have reference to the charge drawn up under section
233. Where an information has been duly signed under section 250 and the accused has been arraigned and pleaded to it it contains
the only effective charge, and that is the charge and the only charge in respect of which the accused is discharged and it is the
proceedings on that information which shall not continue.”
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In R v Noormahomed Kanji (1937) 4 E.A.C.A. 34 the Court of Appeal of East Africa said in considering the section then applicable in Kenya which is in similar terms to our section
71 (supra) said:
“On a close reading of section in question, it wilobserved that the accused person is to be discharged in resn respect of the charge
for which the nolle prosequi is entered. It seems clear that these words refer to the charge in the information is ‘the charge’ on the trial before the High Court,
and the nolle prosequi is entered in the High Court in respect of that information. The Attorney General states that the ‘Proceedings’ should not continue.
If, then, the information is the charge, the proceedings are the High Court proceedings, and the nolle prosequi puts an end to these proceedings.”
We adopt, with respect, the reasons given in the two decisions quoted above; we are satisfied that in tase after the nolle prosequosequi
was entered by the Crown on the 16th March 1979 a fresh information charging the appellant with the crime of murder arising out of
the facts inquired into at the original preliminary inquiry was valid and there was no necessity to hold a fresh preliminary inquiry.
Further, we are satisfied that the adverse consequences which appellant's counsel claimed would flow from the construction we have
given to section 71 (supra) - such as that an accused person may remain committed for trial for a lengthy and indefinite period are
most unlikely to occur. We cannot envisage that the Crown would permit the indefinite postponement of trials by means of the nolle
prosequi procedure. In fact the Constitution of Fiji (section 10) quite clearly requires that a criminal charge shall be heard within
a reasonable time.
Mr. Shankar also referred to Hassan Mohammed & Ors. v Reginam Nos. 58, 5/1974 (F.C.A.) as coas containing a principle that we should not follow the judgment of the Privy Council in Poole's case (supra). We have
read Hassan Mohammed's case and there is nothing contained therein which supports Mr. Shankar's submission in any way. We agree therefore
with Mr. Justice Williams in the court below when he said:
“Clearly it was the trial which was discontinued and ne P.I. The words used by S.71(1) as to the entering of a no a nolle prosequi
are that the Crown may do so by ‘stating in court - that the Crown intends that the proceedings shall not continue.’ The P.I. had
been completed to the stage where the accused had not only been committed but was out of the magistrate's control. One cannot say,
I think, that one would say to the court that the P.I. ‘shall not continue’ when it has in fact finished. The only proceedings which
could be discontinued are necessarily those which are continuing. In this case the trial was proceeding and I would consider that
the trial was the proceedings which were discontinued.”
Accordingly the 1st ground of appeal fails.
Turning to the 2nd ground of appeal, Counsel for appellant submitted that the trial judge perused the record of evidence taken before,
and the ruling of, Mr. Justice Dyke on the voir dire when the first trial was held. Crown counsel submitted that there was no evidence
on the record that Mr. Justice Williams so offended and we agree therewith. In fact, the learned trial judge was at pains to ensure
that the appellant had a fair trial when he stated:
“Mr. Shankar also submitted that the hopes of an obviously outwardly fair tria been diminished by reason ason of my learned brother's
comments having probably been heard over the radio and/or read in the press by the assessors. Moreover the judge is required to put
from his mind the fact that his learned brother had ordered that the accused's statements be admitted...............
ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> ……….There being available no judge who is unaware of Dyke J's findings gard to the accused's statestatement(s) I must disregard them
completely.”
In Mr. Justice Williams' ruling on the voir dire there is not the slightest suggestion he had read the ruling of M of Mr. Justice
Dyke in the earlier trial or was in any way affected thereby.
The appellant did not give evidence on the voir dire and earned trial judge after hearing evidence from 7 witness cass called by the
Crown found the statements made by the appellant to be voluntary and ruled them admissible. Accordingly we are satisfied that the
2nd ground must fail.
Turning to Ground 3, Counsel for appellant claimed that at theof the voir dire he was not given an opportunity by the leae learned
trial Judge to address him which rendered the trial within a trial a nullity.
The appellant as we have stated called no evidence on the voir dire; it is clear from the record that the learned trial judge asked
Counsel for appellant if he was proposing to call evidence and was informed from the Bar by defence counsel - “I propose to call
no evidence.” In our opinion it was open to defence counsel to address the judge if he so wished; he took no steps to do so; Counsel
for appellant is experienced in Court procedure and acknowledged at the hearing of this appeal that he did not ask to be heard, although,
he knew he could have addressed the judge had he so desired. In our opinion there is no merit in this ground of appeal and it fails
accordingly.
We did not call upon the Crown to reply to Ground 4 of the appeal as we considered there was no substance in counsel for appellant's
submission. Mr. Shankar submitted that the learned trial judge and the assessors were wrong in rejecting the defence of provocation
and that the appellant should not have been convicted of murder but manslaughter. The learned trial judge in our view put the issue
of provocation to the assessors very fairly; directed them correctly as to the onus of proof and left the matter as to whether there
was provocation or not entirely to them. The assessors in returning their unanimous opinion guilty of murder obviously rejected the
defence submission that there was sufficient provocation in law to warrant reducing the charge to manslaughter.
As Lord Morris of Borth-y-Gest said in (1978) All ER 168 at p. 176 - 7:
“........It will first be for the court to decide whether, on a charge of murder, there idence on which a jury can can find that
the person charged was provoked to lose his self - control; thereafter, as it seems to me, all questions are for the jury. It will
be for the jury to say whether they think that whatever was or may have been the provocation, such provocation was in their view
enough to make a reasonable man do as the accused did.”
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The assessors in the Court below having been properly directund there was insufficient provocation to reduce the chargeharge to manslaughter.
Accordingly, we reject Ground 4.
There remains the general ground that the verdis unreasonable and cannot be supported having regard to the evidence.
In our opinion there was sufficient evidence which if accepted by the learned trial judd the assessors - and it wait was so accepted
- inevitably led to the conclusion that the appellant was guilty of murder. This ground of appeal fails.
Accordingly for the reasons given we dismiss the appeal.
C.C. Marsack
JUDGE OF APPEAL
T. Henry
JUDGE OF APPEAL
B.C. Spring
JUDGE OF APPEAL
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