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Nadim v State [2014] FJCA 34; AAU0080.2011 (14 March 2014)

IN THE COURT OF APPEAL
AT SUVA
CRIMINAL APPEAL NO. AAU0080 OF 2011

(High Court Criminal Action No. HAC 16 of 2010)

BETWEEN:

MOHAMMED NADIM
RAVINESH VIKASH PADIYACHI
Appellants

AND:

THE STATE
Respondent

Coram : Hon. Justice Suresh Chandra, Justice of Appeal
Counsel : Appellants in person.
Ms. S. Prasad for the Respondent

Date of Hearing : 21 October 2013
Date of Ruling : 14 March 2014

RULING

1. The Appellants were indicted in the Suva High Court on two counts of murder contrary to sections 199 and 200 of the Penal Code (Cap.17).
   
2. They were found guilty on each count on the Assessors returning an unanimous opinion of guilty and the learned Judge convicted the Appellants on the two counts on which they had been jointly charged and sentenced each of them to life imprisonment with a non parole period of 20 years.
   
3. Both Appellants filed notices of appeal on 29th August 2011 individually and sought leave to appeal against their convictions and set out six grounds of appeal in their notices of appeal.
   
4. Subsequently, the Appellants sought leave to file additional grounds of appeal against their conviction individually and filed the following grounds of appeal which are identical:
   

"1. That the learned trial Judge erred in law in failing to clearly put to the Assessors the law that I was charged with on each count.

2. That the learned trial Judge erred in law and in fact as the direction given to the Assessors about all the necessary elements that must be proved by the prosecution on each count is inadequate and/or insufficient.
   
3. That the learned trial Judge erred in law and in fact in forcing my legal counsel to continue in his legal representation when he already indicated in court of his intention to withdraw as my counsel. As a result, I was prejudiced as I was not fairly and/or properly defended and hence lost the opportunity of a fair trial.
   
4. That the learned trial Judge erred in law and in fact in failing to direct himself and the assessors before conflicting it is the duty of the prosecution to establish my guilty and/or to prove each and every ingredient of the offences were charged with beyond reasonable doubt.
   
5. That the direction given to the assessors during the summing up is imbalanced as the learned trial judge failed to fairly and/or adequately put to them the defence case.
   
6. That the learned trial Judge erred in law in accepting DNA evidence as our country has not legislated or passed any DNA law.
   
7. That the learned trial judge erred in law and in fact in convicting me on both counts since the prosecution failed to prove beyond reasonable doubt as to when, how and where were the two deceased murdered.
   
8. That the learned trial Judge erred in law in failing to direct himself and the assessors about the particular provision of the Penal Code that defines the doctrine of joint enterprise and he further erred in law in failing to direct himself and the assessors about all the necessary elements that must be proved by the prosecution on the doctrine of joint enterprise.
   
9. That the learned trial Judge erred in law and in fact in not directing and/or adequately directing the assessors and himself on the previous inconsistent statements made by Ajendra Vikash (P.W.6) and Mohamed Moshin (P.W.7). The learned trial judge ought to have directed the assessors and himself that when a witness is shown to have made previous statements inconsistent with the evidence given by the witness at the trial, he ought to have directed the assessors that the evidence given in the trial should be regarded as unreliable. The failure to do so caused substantial miscarriage of justice.
   
10. That the learned trial Judge erred in law and in fact in placing before the assessors my confession which has been ruled inadmissible as it gave rise to substantial miscarriage of justice."
    
11. The voir dire inquiry resulted in the learned trial judge ruling that the statements made by the Appellants were inadmissible by his ruling of 18 July 2010.
    
12. The case for the prosecution was that the two Appellants had caused the death of the two deceased person's by cutting their necks with a sharp weapon which they sought to establish through circumstantial evidence as there was no direct evidence. The bodies of the deceased had been found buried which led to detailed investigations including DNA tests to establish the identity of the deceased persons. The deceased had been working for the Appellants and had been seen last with the Appellants before they disappeared.
    
13. The first ground of appeal is to the effect that the learned trial Judge failed to direct the Assessors on the law relating to the charges against the Appellants. The learned trial Judge in his summing up had set out very clearly the charge of murder and its elements and there is no merit in the ground that there was a failure by the trial Judge to direct the Assessors.
    
14. The second ground of appeal is also on the adequacy of the summing up regarding the elements of the counts against them which is a repetition of the first ground and there is no merit.
    
15. The third ground of appeal refers to their legal representation. Counsel who represented both Appellants had made an application before the learned trial Judge on 17 June 2011 to withdraw as fees had not been paid and the learned Judge had stated that such application would be considered on the next date which was 21 June 2011. On that day submissions were called for from both parties by the learned trial Judge and he had made a written ruling on 23 June 2011 disallowing the application of Counsel and the trial proceeded thereafter with Counsel representing the two Appellants.
    
16. The learned trial Judge in his ruling considered the inherent power of the High Court regarding such applications and referred to the Canadian Supreme Court decision of R –v- Cunningham 2010 SCC 10 [2010] 1 SCR 331 and the Practice Direction No.1 of 2011 in Fiji in arriving at his decision.
    
17. The complaint of the Appellants is that as a result of the said ruling, prejudice was caused to them as Counsel was forced to continue with the trial and that they were not fairly and/or properly defended and hence lost the opportunity of a fair trial.
    
18. It is not a matter for the Appeal Court to consider whether Counsel had properly conducted the trial on behalf of the Appellants but to consider whether as a result of the refusal by the learned trial Judge for Counsel to withdraw from the case that any prejudice was caused to the Appellants in not having a fair trial. This is a matter that is arguable and therefore leave is granted on this third ground as the Full Court may consider the effect of the Practice Direction No.1 of 2011 and the guidelines set out in the decision of R –v- Cunningham (Supra).
    
19. Grounds four and five deal with the adequacy of the summing up of the learned trial Judge regarding the burden of proof and the defence case. The learned trial Judge has adequately dealt with the burden of proof and also the defence case in his summing up and therefore there is no merit in these two grounds of appeal.
    
20. Ground six is regarding the leading of DNA evidence. The Appellants have taken up the position that the learned trial Judge has erred in law in accepting DNA evidence as there is no law in Fiji regarding DNA evidence. DNA evidence led by the prosecution through a Forensic Scientist regarding the leading of which evidence no objection was taken up by the defence. The learned trial Judge in his summing up to the Assessors referred to this evidence but did not express any opinion regarding same. As such evidence was led according to the rules of evidence there is no error in allowing such evidence to be led and therefore there is no merit in this ground.
    
21. Ground seven is again relating to the adequacy of the summing up and this ground relates to the burden of proof. The learned trial Judge has adequately dealt with the burden of proof on the prosecution that it should prove its case beyond reasonable doubt and therefore there is no merit in this ground.
    
22. Ground eight is in relation to the direction of the learned trial Judge regarding joint enterprise. Since they had been charged together, it was necessary for the learned trial Judge to direct the Assessors on the principles and the law relating to joint enterprise which had been done. Therefore there is no merit in this ground of appeal.
    
23. Ground nine deals with the position of the evidence of the witnesses Ajendra Vikash and Mohammed Moshin. The submission is that the learned trial Judge had failed to draw the attention of the Assessors in his summing up regarding inconsistencies in their previous statements when compared with the evidence before Court. The learned trial Judge has in his summing up referred to the evidence of these two witnesses but there is no reference to any previous statements made by them. However, the learned trial Judge has stated in general at paragraph [113] of the summing up that there were some inconsistencies between the evidence given by them in Court and their statements to the police and that they should consider as evidence, only what was stated in court, and the inconsistencies can be considered in relation to the credibility of such witnesses. There has been no mention of the names of the witnesses in whose evidence there were such inconsistencies. This may not be sufficient in placing the case for the defence before the Assessors. The Full Court would be in a position to consider this position when hearing the appeal as the entire record of the case would be available. Therefore leave is granted on this ground.
    
24. Ground 10 is in relation to the reference by the learned trial Judge in his summing up about the confessions made by the Appellants. It is stated in paragraph [109] of the summing up that the caution interview statements of the Appellants were produced in evidence and that whatever they had stated in such statements was evidence only against such person who made it and cannot be taken against the other person.
    
25. There had been a voir dire inquiry and the learned trial Judge had ruled that the statements made by the Appellants were inadmissible as the prosecution had failed to proved that they had been made voluntarily.
    
26. In view of this position there is merit in this ground and leave is granted to the Appellants.
    

Orders of Court:

27. Leave to appeal against conviction is allowed to both Appellants on grounds 3, 9 and 10 of their respective notices of appeal.
    

Hon. Justice S. Chandra
Resident Justice of Appeal