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Singh v State [2011] FJCA 3; AAU0005.2009 (24 January 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.AAU0005 OF 2009

BETWEEN:

RAYMOND RAJENDRA SINGH
Appellant

AND:

STATE
Respondent

Coram: Hon. Justice William Marshall, Justice of Appeal
Hon. Justice Paul Madigan, Justice of Appeal
Hon. Justice Sithambarampillai Thurairaja, Justice of Appeal

Date of Hearing: Tuesday, 21st September 2010

Counsel: Mr. H A Shah for the Appellant
Ms. S Puamau for the Respondent

Date of Judgment: Monday, 24 January 2011

JUDGMENT

William Marshall, JA

1. I invite Mr Justice Sithambarapillai Thurairaja to deliver what is the judgment of the Court.

Sithambarampillai Thurairaja, JA

2. The accused appellant Raymond Rajendra Singh was convicted for murdering his wife Wendy Linda Singh. The trial was held before Mr Justice Goundar and five assessors. After the trial all 5 assessors unanimously gave their opinion that the accused appellant was guilty for the charge of murder. The Learned Trial Judge convicted the accused appellant and imposed on him the mandatory life term with a minimum term of 18 years. The date of sentence was 4th February 2009. Dissatisfying with the conviction and sentence accused appellant preferred an appeal.

3. The accused appellant had submitted the following grounds of appeal.

"(a) His Lordship erred in law and in fact by admitting an alleged oral confession.

(b) His Lordship erred in law and in fact by not adequately directing the assessors on the issue of provocation.

(c) His Lordship erred in law and in fact in not directing the assessors on the absence of any weapon alleged to be used by the Appellant.

(d) His Lordship erred in law and in fact by not directing the assessors on the conduct of the parties prior to the alleged assault on the deceased.

(e) The decision of the assessors is perverse.

Appeal against Sentence

(f) The imposition of the minimum term of eighteen years was in all the circumstances of the case harsh and unjustified.

(g) The Appellant reserves the right to amend and/or revise his grounds of appeal upon receipt of the Court record."

4. Counsel who appeared for accused appellant filed written submissions and canvassed only 1st, 2nd, 4th and 5th grounds of appeal.

5. When the appeal was taken up for appeal the Counsel for the accused appellant confined himself to the 1st, 2nd and 4th grounds of appeal.

6. First ground of appeal was the trial Judge erred in law in admitting the oral confession.

7. The Learned Trial Judge had addressed the assessors in following manner.

"The evidence relied upon by the prosecution in this case is direct and circumstantial evidence. The prosecution says that the Accused made a confession on which you may rely. The Accused says that he did not make the confession and that it has been fabricated. The defence says the police fabricated the confession. You must consider whether the Accused did in fact make the confession. If you are not sure that he did, you must disregard it. If, however, you are sure that he did make it and that it was true, you may take it into account when considering your opinion. It is for you to assess its weight and value. Remember that police are trained witnesses, who are used to giving evidence. I do not say this because I express any opinion about their credibility, but where an oral confession is evidence against an accused such direction is usually given." [emphasis added]

8. There was a voir dire on the admissibility of the oral confession. The Learned Trial Judge had ruled the confession admissible.

9. The appellant submits the decision of Sachida Nand Mudaliar v. The State FJSC 25 (CAV0001. 2007 (17 October 2008) is directly relevant to this case. Further the Counsel submits that the accused appellant should have been given right to have a Counsel at the time he made the oral confession.

10. Now we consider the circumstance on which the oral confession was made.

"Inspector Dharmen ... at around 3am on 11 May 2008, ... attended a homicide report at 178 Ragg Avenue. When he arrived at the scene he saw a European woman lying inside the house in a pool of blood. After seeing the body and the wound on the woman's neck, Inspector Dharmen treated the case as homicide and ordered the scene to be sealed off for forensics. Whilst at the scene, Inspector Dharmen learned that the Accused had fled the scene. After obtaining information as to the possible whereabouts of the Accused, Inspector Dharmen and his team went to 255 Fletcher Road, Vatuwaqa. They were met by the Accused's father who let the officers inside his house where the Accused was sitting with his sons and his mother. Inspector Dharmen introduced himself and his team to the Accused and told him that he was under arrest for the death of his wife. Inspector Dharmen cautioned the Accused of his right to remain silent and when the Accused was being escorted to the police vehicle, he said, "all this happened out of frustration." Inspector Dharmen then asked the Accused happened out of frustration, to which Accused replied "I killed my wife out of frustration." Inspector Dharmen said he permitted the Accused's father to accompany him to the police station upon his request. Inspector Dharmen said he recorded the statement of the Accused in his notebook but he did not find it necessary to invite the Accused to sign it because the entries in the note book are contemporary recording of notes. Inspector Dharmen said he did not advise the accused of his right to counsel because of his understanding the right to counsel is administered prior to the commencement of a formal interview and he was not the interviewing officer."

11. We considered the ratio decided in Shankar v. State (2005) FJCA 73 Drotini v. State AAU 1/2005 and Sachida Nand Mudaliar v. The State FJSC 25 (CAV0001. 2007 (17 October 2008) and find that the Learned Trial Judge had properly addressed this issue. In fact the Trial Judge had given least possible weight to the confession and allowed the assessor to consider the oral confession among other materials before the Court.

12. At the time of making the confession, parents of the accused appellant were present and the police officer had explained the judge's rules and cautioned the accused appellant to not to say anything. After all these cautions and formalities the accused appellant made the confession. The factual issue of whether Raymond Rajendra Singh orally confessed was properly before the assessors and it was open to them to find that it was a true confession. In giving their opinion of "guilty" they found on this issue against the appellant.

13. Considering the nature of the evidence and the evidence before the Court we find that the Learned Trial Judge had not erred in law by admitting the oral confession. Accordingly the 1st ground fails.

14. The 2nd and 4th ground were that the Learned Trial Judge erred in law and fact by not adequately directing the assessors on the issues of provocation and conduct of parties prior to the alleged assault on the deceased.

15. The accused appellant submits that the Learned Trial Judge completely failed to alert the assessors to the fact that the appellant and the deceased had frequent quarrels.

16. On perusing the entire proceedings we find that the accused appellant had taken 3 types of defence namely self defence, provocation and total denial.

17. In the appeal before us the Counsel confined himself to the defence of provocation. Now we consider the evidence before the trial judge and his summing up to the assessors.

18. The Learned Trial Judge has addressed the assessors in the summing up in the following manner.

"[25] Provocation has a special legal meaning, and you must consider it in the following way.

[26] Firstly, you must ask yourselves whether the Accused was provoked in the legal sense at all. A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been said and/or done by the deceased rather than just by his own bad temper. The defence says the Accused was provoked by the abusive language that the deceased used, her constant arguments over his children, her past neglect of his children, her drinking habits and her assaults on him on the night in question.

[27] If you are sure that the Accused was not provoked in that sense, the defence of provocation does not arise, and the Accused is guilty of murder.

[28] But if you conclude that the Accused was or might have been provoked, in the sense which I have explained, you must then go on to weigh up how serious the provocation was for this Accused. Is there anything about this Accused which may have made what was [said and/or done] affect him more than it might have affected other people.

[29] Finally, having regard to the actual provocation and your view of how serious that provocation was for this Accused, you must ask yourselves whether a person having the powers of self-control to be expected of an ordinary, sober person, of the Accused's age and sex (a male in his late twenties), would have been provoked to lose his self-control and do as this Accused did. If you are sure that such a person would not have done so the prosecution will have disproved provocation, and the Accused is guilty of murder. If, however, you conclude that such a person would or might have reacted and done as the Accused did, your opinion would be "Not guilty of murder, but guilty of manslaughter by reason of provocation."

19. Considering the above paragraphs we find that the Learned Trial Judge had adequately addressed the assessors. It was submitted during the trial that both the accused appellant and deceased had constant quarrels between them. If that is the scenario the accused appellant cannot have been provoked to the level of killing his wife and who was the mother of his two children.

20. Considering decided cases in Fiji and other common law jurisdiction the defence of provocation needs to be "grave and sudden". Sometimes there is a sudden discovery of infidelity by a marriage partner. Always depending upon the facts and circumstances of the case there may be "sudden and grave" provocation caused by infidelity or many other circumstances. But in the present case where the accused said he acted out of frustration rather than passion, there is nothing "sudden or grave" which would amount to provocation. Rather it seems it was endless marital disputes with the potential for descending into extreme violence on the part of a disputant who could not control his temper.

21. Considering the summing up of the Learned Trial Judge we find that he had comprehensively directed the assessors regarding the defence of provocation.

22. Now we consider the defence of self defence. It is revealed that the accused appellant had an injury on the nail and it was submitted by the accused appellant that the deceased had bitten his nail. The medical evidence does not support or deny the way the injury was caused but only states that he had an injury. Considering the injuries on the deceased, the Post Mortem Report reveals that the deceased had 79 external injuries. Most of them are non-grievous. Whoever the assailant the deceased had suffered heavily before she succumbed to her injuries.

23. If we consider the defence of self defence the injuries does not support. The accused appellant had only one injury on the nail and the deceased had more than 79 injuries. Even we apply common sense theory; the defence does not appear to be reasonable.

24. The Learned Trial Judge addressed the assessors as follows:

"[14] If you are satisfied beyond reasonable that the fatal injury on the deceased was not accidental but deliberate, then you must consider whether the Accused acted in self defence. If you think that the Accused was or may have been acting in lawful self-defence of himself and/or his children who were present with him, you must find him not guilty. Because the prosecution must prove the Accused's guilt, it is for the prosecution to prove that the Accused was not acting in lawful self defence. It is not for the Accused to establish that he was and you must consider the matter of self defence in the light of situation which the Accused honestly believed he faced. You must first ask whether the Accused honestly believed that it was necessary to use force to defend himself at all.

[15] If you are sure that the Accused did not honestly believe that it was necessary to use force to defend himself, he cannot have been acting in lawful self-defence, and you need consider this matter no further. But what if you think that the Accused did honestly believe or may honestly have believed that it was necessary to use force to defend himself and/or his children?

[16] You must then decide whether the type and amount of force the Accused used was reasonable. Obviously, a person who is under, attack my react on the spur of the moment, and he cannot be expected to work out exactly how much force he needs to use to defend himself. On the other hand, if he goes over the top and uses force out of all proportion to the anticipated attack on him, or more force than is really necessary to defend himself and his children, the force used would not be reasonable. So you must take into account both the nature of the attack on the Accused and what he then did.

[17] If you are sure that the force the Accused used was unreasonable, then the Accused cannot have been acting in lawful self-defence; but if you think that the force the Accused used was or may have been reasonable, you must find him not guilty."

25. Considering the evidence and summing up of the judge we find that the assessors were properly and adequately addressed on these issues therefore there is no misdirection to the assessors and to himself in the light of these materials. We find this ground of appeal also fails on its own merits.

26. The accused appellant's 5th ground of appeal was the decision of the assessors is perverse. The accused appellant did not support this ground in the appeal.

27. Considering the evidence before the Court we find the accused appellant had a very fair trial. The Learned Trial Judge has taken extra precaution in admitting evidence before the assessors. For an example the Prosecution's application to use "similar fact evidence" was not allowed even though it could have been considered under the rules of evidence in the common law countries.

28. Considering the nature of evidence before the assessors and the summing up we find that the Learned Trial Judge had considered the evidence fairly and addressed the assessors without any bias. Under these circumstances we do not find the unanimous decision of all 5 assessors is perverse. Therefore the ground of appeal also fails in its own merits.

29. The accused appellant submits that the imposition of the minimum term of eighteen years was in all the circumstances of the case harsh and unjustified. The Counsel who appeared for accused appellant did not pursue the ground in the appeal.

30. Any how we consider the sentence. The Penal Code provides mandatory life imprisonment and trial judge may fix a minimum term.

31. The Counsel for the accused appellant submitted State v. Epeli Nasau Naivalu HAC 008 of 2003L and State v. Tomasi Aisea HAC 013 of 1997L. Both cases when the Accused was found guilty for manslaughter the sentencing principle applied will not be applicable to this case because in this case the accused appellant was found guilty for murder.

32. In Kim Nam Bae v. The State [1999] FJCA 21; AAU 0015 of 1998 this court said:

"It is well established law that before this court can disturb the sentence; the appellant must demonstrate that the Court below fell into error in exercising its sentencing discretion. If the trial judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some of the relevant considerations, then the appellate court may impose a different sentence."

33. Considering all available evidence before the Court and the nature of the death of the deceased we find the Learned Trial Judge was reasonable in imposing a minimum term of 18 years. Therefore we dismiss this ground of appeal also.

34. The finding of this Court is that the appeal of Raymond Rajendra Singh against conviction and sentence should be dismissed.

The Order of the Court

William Marshall, JA

35. The order of the Court is:

(1) that the appeals against conviction and sentence be dismissed.

Hon. Justice William Marshall
Justice of Appeal

Hon. Justice Paul Madigan
Justice of Appeal

Hon. Justice Sithambarampillai Thurairaja
Justice of Appeal