| Fiji Islands - Bharat Lal v The State - Pacific Law Materials |
IN THE FIJI COURT OF APPEAL
CRIMINAL JURISDICTION
CRIMINAL APPEAL NO. 3 OF 1990
(Criminal Case No. 2 of 1990)
BETWEEN:
BHARAT LAL
Appellant
AND:
STATE
Respondent
Mr G.P. Shankar Counsel for the Appellant
Mr Ravi Perera Counsel for the Respondent
Date of Hearing: 16 October, 1990
Delivery of Judgment: 8 November, 1990
JUDGMENT OF THE COURT
The Appellant was charged with the murder of his wife Manjula Ben at Rakiraki on 17 July, 1989. His trial commenced before a Judge
and 3 assessors at Lautoka High Court on 5 February, 1990. He pleaded not guilty. In the course of the trial the admissibility of
the caution statement made by the Appellant to the Police on 17 July, 1989 was challenged on the ground that it was not voluntarily
given. The learned Judge thereupon very properly held a trial within a trial (voire dire) in the absence of the assessors. He ruled
that the statement was admissible. The trial then continued before the assessors and the Appellant's statement was tendered in evidence
as Exhibit 2A with the English translation being marked 2B. In his summing-up learned Judge addressed the assessors on the law relating
to murder and the circumstances in which an accused on a charge of murder may be convicted of manslaughter. The three assessors were
unanimous in their opinion that the Appellant was guilty of murder as charged. The learned trial Judge in a reserved judgment delivered
on 6 March, 1990 hesitatingly rejected the unanimous opinion of the assessors and found the Appellant not guilty of murder but guilty
of manslaughter only. This he did on the basis that the prosecution had failed to prove beyond any reasonable doubt that there was
no provocation. He sentenced the Appellant to 10 years imprisonment. The Appellant now appeals against his conviction for manslaughter
and in the alternative against his sentence.
Brief Facts
Certain matters are not in dispute and therefore it will be useful to set them down briefly at the outset. The Appellant was 31 years
of age at the time of his wife's death. He used to operate a shoe shop in Rakiraki town. He and his wife were living together in
Rakiraki with their two daughters aged 7 and 4. At the material time his wife was 7 months pregnant. The Appellant was carrying on
an affair with another woman. This was known to his wife. Their sex relationship was also an unhappy one. They used to quarrel from
to time. On the night of Sunday 16 July, 1989 the family had dinner together and later the couple went to sleep in one room and the
children in another. During the night there was an argument between the couple. In the early hours of the morning of Monday 17 July,
1989 Manjula Ben was found cold and motionless. Later that morning Dr Sharma examined her at the house and he pronounced her dead.
A post-mortem examination was carried out the same day by Dr Gounder at Lautoka Hospital. It showed that the deceased's hyoid bone
had been fractured. Asphyxia was the cause of death. Dr Gounder testified that hyoid bone could not be fractured by massaging.
At about mid-day the Appellant was taken to Rakiraki Police Station by Police Constable Shaukat Ali. He was there till 4.10 pm when
he was interviewed by Corporal Ranvir Singh. Inspector Vijay Sen was present during the interview. The interview concluded at 10.05
pm. During the interview the Appellant was supplied with a cup of tea and later at 6.30 pm with a meal.
The Defence Case
It was the Appellant's case that Manjula Ben had vomited after midnight and that she complained of a burning sensation in her throat
whereupon the Appellant massaged her neck with "Vicks". He later found her dead but he denied he killed her. Likewise it
was the defence contention that answers to questions from 1 to 56 in Exhibit 2A including reference to the 'Vicks' incident were
in order but the incriminating answers recorded thereafter were obtained by means of assault, threats and oppression. Answers to
questions 57, 58, 59 and 60 read as follows:-
"Q.57 There are some marks on your face and it seems the injury have been caused by finger nails, how the injuries occurred?
(A) Now I want to tell all the truth how it all happened.
Q.58 What all are the true thing which you want to tell?
(A) Today at about 2.30 in the morning when I returned from the room of my daughters after checking into my room, then I thought
of many things as to why my wife is staying in anger with me and said you are nothing to me. Then I sat beside her and thought today
I will press her neck and all the problems will be over. I pressed her neck with one hand then with both hands pressed very hard
and she with one of her hands scratched my face with finger nails. When I pressed harder her hands went lose.
Q.59 For how long you kept on pressing the neck of your wife?
(A) For about 5 minutes I pressed it and her hands and leg movement stopped then I left her.
Q.60 After killing her what did you do?
(A) After half an hour later blood oozed out from her mouth then I wiped it with a pillow case and placed it in the basket and after
that I rang JITENDRA. I told Doctors and others that my wife that I do not know how my wife died. I now repent for whatever I have
done."
Grounds of Appeal
The grounds of appeal are as follows:-
"1.1 THAT the learned Judge was wrong in admitting the alleged confessions having regard to the circumstances in which it was taken, and the evidence adduced before the court on voire dire;
1.2 THAT in his ruling on voire dire the learned Judge misdirected himself in holding that the appellant did not adduce any medical evidence
as to the beatings and assault on him;
1.3 THAT the learned Judge misdirected himself on voire dire when he held that despite earlier beatings the appellant did not deny the alleged
offence from questions 1 to 56;
1.4 THAT the learned Judge failed to fully and properly consider and evaluate the evidence on voire dire.
2. THAT the sentence is harsh and excessive."
In so far as conviction is concerned it will be seen that all 4 grounds are designed to show, either individually or collectively,
that the learned trial Judge erred in admitting the alleged confessional statement. Grounds 1.1 and 1.4 are expressed in general
terms and are wide-ranging in their scope. We, therefore, propose to deal with them together after we have disposed of grounds 1.2
and 1.3 which contain complaints of a more specific nature.
The Challenged Ruling
Bearing in mind that it is only the learned Judge's ruling on the voire dire that is being impugned we feel that it will be convenient
to quote the relevant parts of the ruling in extenso at this stage in so far as they are relevant to the grounds of appeal lodged.
"Ruling
.....The basic defence contention is that the admissions which were allegedly made by the accused were extracted by assaults and
threats by the police. It is for the prosecution to establish beyond reasonable doubt that the confessions were voluntary.
.....The accused alleged that about 3pm he was punched in the stomach five times by P.C. Saukat Ali. He said later on his face was
scratched by a short man and was punched in the chest and stomach by Ins. Vijay Sen and Cpl. Ranvir Singh who was doing the interviewing.
There was no medical evidence produced that accused suffered any injury. Cpl. Ranvir Singh who interviewed the accused denied assaulting
or threatening or inducing the accused in any way. Cpl. Ranvir Singh denied squeezing accused's scrotum. Cpl. Ranvir Singh said he
had seen a scratch on accused's face before the commencement of the interview. Ins. Sen denied assaulting accused. .....
.....It is a clear law, and has been for a very long time, that a confession obtained through violence, actual or threatened, must
be excluded irrespective of its truth, or reliability. This has recently been reaffirmed in the Privy Council in Wong Kam-Ming V. The Queen [1980] A.C. 247, 261; [1978] UKPC 34; [1979] 1 All E.R. 939, 946 in the judgment of Lord Hailsham of St. Marylebone. See also DPP V. Ping Lin [1957] 3 All E.R. 175.
The basic control over admissibility of statements is found in the evidential rule that an admission must be made voluntarily i.e.
not obtained through violence, fear of prejudice, oppression, threats and promises, or other improper inducements. See dictum of
Lord Summer in Ibrahim V. R [1914] UKPC 16; [1914-15] All E.R. 874 at 877. It is to the evidence the court must turn for an answer on the voluntariness of the confession.
The accused bore no external or visible signs of injury and made no complaint when first brought before a Court on 18th July 1989,
within hours of alleged beatings. He made no complaint to the doctor when he was taken to the Raki Raki Hospital the same night of
17th July 1989. I do not accept accused's evidence that he was assaulted by P.C. Saukat Ali, Cpl. Ranvir Singh or Ins. Vijay Sen
or by any other police officer. Accused said in cross-examination that he was assaulted by P.C. Shyam. He did not say about P.C.
Shyam in examination-in-chief. I reject his evidence that he was threatened by Ins. Michael Ram Chandra in doctor's surgery in the
presence of the doctor. The degree of detail contained in the interview together with the evidence of the visit to the scene of the
alleged crime at which time the accused displayed an accurate knowledge of the events of the alleged crime would show that police
used no violence. I reject accused's version of assault, I reject any suggestion that the statements were fabricated by the police
or that the accused was assaulted or threatened or offered any inducement.
There remains the question of whether the statements were otherwise obtained by unfair or oppressive means. The accused was, as I
said taken to the police station about 12 noon on 17th July 1989 and was kept there till 4.10pm when the interview started. There
was no evidence of any arrest, or of any attempt by the accused to leave the police station or of any request by him to be allowed
to leave. He was in an office and not in a cell and I believe the prosecution witnesses who said he was given meals and refreshment.
The post mortem of the deceased was done at Lautoka Hospital. in the morning. Police had the result of the post mortem before the
commencement of the interview. The main thing is whether in all the circumstances the police treatment of the accused was unfair
or oppressive. It is to be noted that the interview was not concluded until 10.05pm that night. It could not be said compared with
other serious allegations that the interview was a long one. There were breaks during the interview, there were refreshments given
to the accused. The accused was not in custody.
The defence had raised the issue of oppression but not stated what was the nature of oppression. There is nothing in the evidence
to suggest enquiries conducted by the police were of oppressive nature.
The word "oppression" was considered by Sachs J. in R V. Priestley (1965) 51 Cr. App. R. 1 where he said:
"...this word...imports something which tends to sap and has sapped that free will which must exist before a confession is voluntary...whether
or not there is oppression in an individual case depends upon many elements...they include such things as the length of time intervening
between periods of questioning, whether the accused person had been given proper refreshment or not and the characteristic of the
person who makes the statement.
What may be oppressive as regards a child or invalid or an old man, or somebody inexperienced in the ways of this world may turn out
not to be oppressive when one finds that the accused person is of tough character and an experienced man of the world."
In R V. Prager (1972) 56 Cr. App. R. 151 it was stated that:
"Oppressive questioning is questioning which by its nature, duration and other attendant circumstances (including the fact of
custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he
speaks when otherwise he would have stayed silent."
At the beginning and at intervals in the course of interrogation the accused was cautioned by Cpl. Ranvir Singh pursuant to Rule II
of the Judges Rules. If one looks at the confessions it could be seen that they (the confessions) were given not after any vehement
denials by the accused. The accused had said that his answers from question 57 were given as a result of assaults on him. Looking
at the confessions the accused continued explaining first how he got the scratch marks on his face. It could not be said that there
was a point of departure for the accused from denial to confession.
I find nothing unfair or oppressive in the tactics adopted by the interviewer.
In all the circumstances of this case there was no evidence that the accused only made the statements because of unfair or oppressive
methods used by the police and I cannot find that the statements were obtained by unfair or oppressive means. I find they were voluntarily
made, not induced by assaults, threats or inducements. They will therefore be admitted."
Ground 1.2
As to the complaint contained in ground 1.2 it is not correct that the learned trial Judge said "Appellant did not adduce any medical evidence as to beatings and assaults on him". The records (p.21) shows that the Judge said "There was no medical evidence produced that accused suffered any injury". This was a statement of fact and was not designed in our view to shift the onus of proof on the Appellant. Medical evidence was
led by the prosecution and it showed that the Appellant had suffered no injury. We find no merit in this ground of appeal.
Ground 1.3
As to ground 1.3 the learned counsel for the Appellant referred us to the last sentence of the ruling at p.23 of the record which
reads "It could not be said that there was a point of departure for the accused from denial to confession". Having read the whole of Exhibit 2B we are of the view that the Judge's comment was neither unfair nor illogical. The complaint contained
in 1.3 appears to be a rationalization on the part of the Appellant and is one which is not supported by the record itself. We do
not find the learned Judge misdirected himself.
Grounds 1.1 and 1.4
We now turn to grounds 1.1 and 1.4 of the appeal. It is clear from the ruling already quoted that the learned trial Judge applied
the correct law, took all the relevant circumstances into account and properly evaluated the evidence, including that of the Appellant.
Having heard the witnesses and watched their demeanour he was uniquely qualified to assess their credibility and to make findings
of fact. There is, therefore, no basis for this Appellate Court to come to any different conclusion. Before this Court Mr Shankar
complained that Appellant had not called Constable Ali to give evidence on the voire dire although the Appellant had alleged that
Ali assaulted him. The allegation is that the assault took place before the interview started and yet the Appellant agrees that his
answers to questions 1 to 56 were properly recorded. The trial Judge did not overlook the allegation of assault by Constable Ali.
We are satisfied that failure to call Constable Ali did not occasion any miscarriage of justice. Mr Shankar also questioned the reason
for the presence of a Justice of the Peace Mr Ismail Musa at one stage of the Appellant's interview. We note that the learned trial
Judge very fairly and properly ruled inadmissible the evidence given by Mr Musa. We are, therefore, of the view that any further
discussion concerning Mr Musa's presence and evidence will be an exercise in futility and indeed against Appellant's interest.
Conclusion
We find no basis to hold that the learned Judge erred in admitting the confessional statement and we therefore uphold the learned
Judge's ruling. We might, however, add that whilst it is settled law that a voluntary confession is sufficient to warrant conviction
without any corroboration, there was in this case sufficiently strong circumstantial evidence to establish beyond any reasonable
doubt independently of the confession that the Appellant unlawfully killed his wife by strangling her. We, therefore, have no hesitation
in dismissing this appeal against conviction.
Sentence
We now turn to ground 5 which alleges that the sentence is harsh and excessive. Mr Shankar contends that in view of the provocation
and all the surrounding circumstances a 10-year sentence is excessive. He says that the learned Judge based the sentence on husband-killing-wife
tariff without considering the merits or mitigating circumstances of the case. He cited a number of manslaughter cases in Fiji arguing
that the upper limit of 10 years was not called for in this case as amongst other things the Appellant was a first offender and had
not used any weapon.
On the other hand the learned counsel for the Respondent contends that the Appellant was very fortunate in that he obtained a verdict
of manslaughter in what appears to be a clear case of murder. Had a right of appeal existed at the relevant time the State would
have lodged an appeal against acquittal on the murder charge. He pointed out that the victim was only 31 years of age, had two young
daughters and was seven months pregnant at the time of killing.
Mr Shankar heavily relied on the observation of the Court of Appeal in Kishori Lal v. Reginam, Criminal Appeal No. 54 of 1984 where it said "one can give favourable consideration to the man who in outrage battered another with bare hands". In the present case the Appellant had throttled his wife to death in circumstances where there was neither evidence of nor any justification
for any outrage sudden or otherwise. We cannot but agree with the learned counsel for the State that Appellant was fortunate in escaping
a conviction for murder. The provocation, if any, was very minimal to say the least. If ever there was a case bordering on murder
this was one such case. The fact that the Appellant killed his own wife whom he knew to be seven months pregnant was in our view
an aggravating factor. We regard this manslaughter to be of a grave kind and one which more than merited the upper limit of 7 to
10-year range normally reserved for such cases. On the basis of Fiji Court of Appeal's observations in Ram Sami v. Reginam 21 F.L.R. 12 even a 12-year sentence might not have been considered manifestly excessive in this case. We note that the trial Judge in assessing
sentence had taken into account the Appellant's previous good character and the period he spent in custody. We, therefore, have no
hesitation in dismissing the appeal against sentence also.
This appeal is therefore wholly dismissed.
Sir Moti Tikaram
Justice of Appeal
Sir Ronald Kermode
Justice of Appeal
L.M. Jayaratne
Justice of Appeal
Aau0003u.90s
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