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Chand v State [2014] FJCA 53; AAU0015.2012 (16 April 2014)

IN THE COURT OF APPEAL
On appeal from the High Court

CRIMINAL APPEAL NO: AAU0015 OF 2012
High Court Case No. HAC 35 of 2005L

BETWEEN:

ASHWIN CHAND
Appellant

AND:

THE STATE
Respondent

Coram: Goundar JA

Counsel: Mr. J. Savou for the Appellant
Mr. V. Perera for the Respondent

Date of Hearing: 2 April 2014
Date of Ruling: 16 April 2014

RULING

[1] This is an application for leave to appeal against conviction and sentence pursuant to section 21(1) of the Court of Appeal Act. The appellant was tried and convicted of murder in the High Court at Lautoka. The trial was a re-trial after the Supreme Court had quashed his conviction from his first trial.

[2] The grounds of appeal against conviction are:

"1. The Learned Trial Judge erred in law and in fact when he adjudged that the caution interview was admissible in the following manner:

1. There was evidence of assault as highlighted at paragraph 18 of the Voir dire Ruling which the Learned Trial Judge failed to take account of in his analysis at paragraph 21;
   
2. That the Learned Trial Judge's comment at paragraph 21 of his Voir dire ruling that there was no force applied because the Appellant did not make a direct admission is not the proper consideration in terms of the test of voluntariness of admissions contained in a caution interview;
   

2. The Learned Trial Judge caused the trial to miscarry when he neither failed to excuse the assessors nor himself from adjudicating in your petitioner's trial following the incident when your petitioner threw an object at the Learned Trial Judge in full view of the assessors.

3. The Learned Trial Judge erred in law and fact when he failed to direct the assessors that the Pathologist was expressing an opinion at paragraph 30 line 18–19.

4. The Learned Trial Judge erred in law and fact when he allowed PW11 and PW15 to produce document as exhibits when PW11 and PW15 were not the makers of those documents

5. The Learned Trial Judge caused the trial to miscarry when he allowed the Petitioner's caution interview to be tendered without prejudicial matters contained in question and answer 46, 47, 48, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74 and 136 being blotted out.

6. The Learned Trial Judge caused the trial to miscarry in not directing the assessors not to accept prejudicial matters contained in question and answer 46, 47, 48, 65, 66, 67 68, 69, 70, 71, 72, 73, 74 and 136 of your petitioner's caution interview following tendering of your petitioner's caution interview.

7. The Learned Trial Judge erred in law and fact in failing to advise the Petitioner of his rights upon the close of Prosecution's case."

[3] In my judgment the proposed grounds of appeal raise questions of mixed law and fact. Leave is required. The test is whether the ground is arguable before the Full Court.

Admissibility of caution statement
[4] The appellant challenged the voluntariness of his caution statement in a voir dire hearing. He alleged that the police officers assaulted him on the fingers and forced him to sign his record of interview. The police officers denied the allegations of assault. After the appellant was formally charged, the police took him to a doctor for a medical examination. The appellant told the examining doctor that the police officers had stepped on his fingers during the caution interview. The examining doctor found two injuries on the appellant. One was a small laceration under the left upper lip and the other was a hematoma under the nails of the small index finger and thumb. The doctor gave evidence that the laceration could have been caused by a punch while the finger injuries could have been caused by a hard blunt object.

[5] In his voir dire ruling, the trial judge concluded that the police had not forced the appellant because there was no direct admission of the offence by him. In his caution interview, the appellant said one Pravin killed the deceased and he only accompanied Pravin to the deceased's house under duress. So the caution interview contained statements which were both exculpatory and incriminatory in nature. It is not clear why the appellant challenged the admissibility of his caution interview when it contained his potential defence. The fact that the caution interview contained a potential defence worked against the appellant because it was not plausible for the police officers to assault the appellant just to make him reveal his potential defence. The trial judge reached this conclusion on the evidence and I cannot find any arguable ground to fault his reasoning. This ground is not arguable.

Recusal of assessors and the trial judge
[6] The appellant does not dispute that he threw a rock at the trial judge while the court was in session and in the presence of the assessors. Clearly, the circumstance upon which this ground is founded was created by the appellant. Disruption brought by an accused during a trial is not a proper ground for discharge of the assessor or disqualification of the judge. This ground is not arguable.

Pathologist's evidence
[7] The post mortem establishes that the deceased died of:

(i) Asphyxia and Ensanguinating,

(ii) Hemorrhage due to cut throat wound,

(iii) Penetrating Heart Wound.

[8] The post mortem was carried out by Dr. Badami. By the time the re-trial commenced, Dr. Badami had left Fiji. Dr. Goundar tendered the post mortem report. Dr. Goundar was asked to express an opinion on the nature of injuries sustained by the deceased, which were recorded in the post mortem report. Dr. Goundar said the injuries were not self inflicted or accidental. Dr. Goundar said the person who caused the injuries had the intention to kill.

[9] While the trial judge summarized Dr. Goundar's opinions in his summing up, he gave no directions on how to deal with expert opinion evidence. This ground is arguable.

Admissibility of documents
[10] Whether a document should have been allowed in evidence was a matter for the trial judge. In this case, the appellant was unrepresented. He was not expected to know the rules of admissibility and raise timely objection. The trial judge was under an obligation to protect the fairness of the trial and allow only admissible evidence. Whether the documents were properly admitted is an arguable point.

Admitting unedited caution interview
[11] It is not in dispute that the appellant's caution interview contained prejudicial information on uncharged acts. The State's copy of the caution interview is blocked out with a black eraser. The caution interview that was tendered in court was edited and the prejudicial materials were blocked out with a white eraser. It is not clear which edited copy was given to the assessors. If the assessors were given the court copy then one can still read the prejudicial materials because the white eraser did not completely block out the prejudicial materials. This ground is arguable.

Failure to advise the appellant's rights
[12] According to paragraph 42 of the summing up the trial judge explained to the appellant his rights. The appellant elected to remain silent. The trial judge directed the assessors not to draw any adverse inference against the appellant in exercising his right to remain silent. This ground is not arguable.

Sentence appeal
[13] The ground of appeal against sentence is:

"The Learned Trial Judge erred in law and fact in sentencing your petitioner following the incidence when your petitioner threw an object at the Learned Trial Judge."

[14] The ground advanced by the appellant is not arguable. The judge was not disqualified from sentencing the appellant because of the circumstance created by him. But there is matter that is of some concern to this Court. Following his first conviction in 2006, the appellant was sentenced to life imprisonment with a non-parole period of 12 years. The Supreme Court quashed the conviction and sentence in 2009. The appellant had served three years of his first sentence. When the trial judge sentenced him in the re-trial, the non-parole period was almost doubled to 22 years without taking into account his pre-trial custody periods and the sentence the appellant had served following his first conviction. There is an arguable ground that the non-parole period of 22 years was arrived at by taking into account erroneous considerations or by failing to take into account relevant considerations.

Result
[15] Leave to appeal against conviction is refused on grounds one, two and seven. Leave is granted on the remaining grounds.

[16] Leave to appeal against sentence is granted on the ground proposed by this Court.

Hon. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Legal Aid Commission for the Appellant.
Office of the Director of Public Prosecutions for the Respondent.