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State v Naidu - Written Reasons for Judgment and Sentence [2017] FJHC 152; HAC015.2013L (27 February 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
LAUTOKA CRIMINAL CASE NO. HAC 015 OF 2013L

STATE

vs

SUDESH MANI NAIDU

Counsels : Mr. Y. Prasad and Ms. S. Kiran for State
Mr. S. Waqainabete and Ms. S. Ratu for Accused
Hearings : 16, 17, 21 to 23 February, 2017
Summing Up : 24 February, 2017
Judgment : 24 February 2017
Written Reasons For
Judgment and
Sentence : 27 February 2017

WRITTEN REASONS FOR JUDGMENT AND SENTENCE

1. On 17 February 2017, in the presence of his counsel, the accused pleaded not guilty to the following information:

FIRST COUNT

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Decree 44 of 2009.

Particulars of Offence

SUDESH MANI NAIDU on the 13^th day of January 2013 at Lautoka, in the Western Division murdered VIDYA WATI.

SECOND COUNT

Statement of Offence

ROBBERY: Contrary to section 310 (1) (a) (i) of the Crimes Decree 44 of 2009.

Particulars of Offence

SUDESH MANI NAIDU on the 13^th day of January 2013 at LAUTOKA in the WESTERN DIVISION robbed PREM LATA of 1 x 22ct gold chain valued $1500.00, 1 x 22ct gold chain with cross pendant valued $150.00, 6 ladies ring valued $400.00 and 1 x 9ct diamond ring valued $150.00, all to the total value of $2200.00 and immediately before such theft applied force on VIDYA WATI.

2. The trial then went on before myself and three assessors for 5 days. The assessors returned with a unanimous not guilty opinion on 24 February 2017 on both counts for the accused.
   
3. The law at this stage of the trial is section 237 (1), (2), (4) and (5) of the Criminal Procedure Decree 2009, which reads as follows:
   

“...237 (1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors...

(4) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be –

(a) written down; and

(b) pronounced in open court.

(5) In every such case the judge’s summing up and the decision of the court together with (where appropriate) the judge’s reasons for differing with the majority opinion of the assessors, shall collectively be deemed to be the judgment of the court for... all purposes...”

4. In Ram Dulare, Chandar Bhan and Permal Naidu vs Reginam [1956 – 57], Fiji Law Report, Volume 5, pages 1 to 6, page 3, the Fiji Court of Appeal, said the following, on an equivalent section of the then Criminal Procedure Code:
   

“...In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a Jury in a trial. In the case of the King v. Joseph 1948, Appeal Case 215 the Privy Council pointed out that the assessors have no power to try or to convict and their duty is to offer opinions which might help the trial Judge. The responsibility for arriving at a decision and of giving judgment in a trial by the High Court sitting with the assessors is that of the trial Judge and the trial judge alone and in the terms of the Criminal Procedure Code, section 308, he is not bound to follow the opinion of the assessors...”

5. In Sakiusa Rokonabete v The State, Criminal Appeal No. AAU 0048 of 2005, the Fiji Court of Appeal said as follows:
   

“...In Fiji, the assessors are not the sole judge of facts. The judge is the sole judge of fact in respect of guilt, and the assessors are there only, to offer their opinions, based on their views of the facts...”

6. Prior to making my judgment on 24 February 2017, I had reviewed the evidence called in the trial, and I had directed myself in accordance with the summing up I gave the assessors on that day. The assessors’ opinion was not perverse. It was open to them to reach such conclusion on the evidence. However, I am not bound by their opinion. On my analysis of the case based on the evidence, and on my assessment of the credibility of the witnesses, I disagreed with the unanimous not guilty opinion of the three assessors.
   
7. My reasons are as follows.
   
8. The State’s case against the accused was based fundamentally on the alleged confession to the police when he was caution interviewed at Lautoka Police Station on 16 and 17 February 2013. I had outlined the above in paragraphs 32, 33 and 34 of my summing up. The State also relied on a multitude of circumstantial evidence, as I outlined in paragraphs 32 and 38 to 48 of my summing up.
   
9. As to the accused’s alleged confession to the police on 16 and 17 February 2013, I accept that he made those confessions to the police and that the same were true. I accept Inspector Keshwan Naidu’s (PW7) and Inspector Harish Prasad’s (PW8) evidence that the accused was given his right to counsel and other legal rights, was given the standard meal and rest breaks, was formally cautioned and was treated well by police while in their custody. I also accept PW7 and PW8s’ evidence that they did not assault, threaten or made false promises to the accused when he was caution interviewed by police and when he was in their custody.
   
10. The accused said he was assaulted repeatedly and threatened by police while he was interviewed and while in their custody. If so, why did the police take him for a medical examination at Lautoka Hospital on 18 January 2013, before he first appeared in court on that date. The defence produced his medical report as Defence Exhibit No. 1. In the report, the examining doctor found no injuries on him when he conducted a general examination. He only found a left ankle injury which was swollen and tender. Doctor Kelera Tabuaniqili (DW2), a substitute doctor called in by the defence to give evidence for the examining Doctor Kaul, who had passed away, said the injury could be caused by falling down, punches, kicks or being hit by a stick. I have carefully examined PW7, PW8 and the accused on the allegation of alleged police assaults.
    
11. In my view, PW7 and PW8 were more credible than the accused, on the issue of the alleged police assaults. I accept PW7 and PW8’s evidence that they did not assault or threaten the accused while he was in their custody. I reject the accused’s allegation that he was assaulted by police, when in their custody. In my view, the accused was very evasive when cross-examined, and more injuries would be found on his body if he was repeatedly assaulted by police. He also did not complain to the Magistrate of any untoward police behaviour when he first appeared in court on 18 January 2013. His evidence on the alleged police assaults were not credible.
    
12. On the circumstantial evidence presented by the State as outlined in paragraphs 37 to 48 of my summing up, I accept the same as credible, and when taken together, they lead to the irresistible conclusion that it was the accused who committed the murder and robbery at Ms. Wati’s house on 13 January 2013. So, when you combine the effect of the accused’s alleged confession to the police and the circumstantial evidence presented by the State, as outlined in my summing up, they lead to the sure conclusion that it was the accused who murdered Vidya Wati on 13 January 2013, and stole her daughter’s jewelleries on the same date. I find the prosecution’s witnesses more credible than the defence’s witnesses, and because of the above, I accepted the prosecution’s version of events and rejected the defence’s version of events.
    
13. On count No. 1, there is only one penalty for murder, and that was mandatory life imprisonment. However, the court had a discretion to set a minimum term of imprisonment to be served before a pardon may be considered by His Excellency the President of the Republic of Fiji (section 237 of the Crimes Decree 2009).
    
14. Robbery carried a maximum sentence of 15 years imprisonment (section 310 (1) of the Crimes Decree 2009).
    
15. This case was an unfortunate one. The accused was familiar with the neighbourhood as he had continuously resided with Mr. Garneshwar for approximately 3 to 4 months previously. He knew the Johnson Road area as he used to sell photos in the area. Prior to the murder and robbery, he had been drinking with his friend Mr. Ganeshwar at his Johnson Road house from 10am to 4.30pm on 13 January 2013. He later went to Ms. Wati’s house to ask for water. He saw Ms. Wati, a 74 year old woman, in her house in the sitting room. Her main door was opened. He decided to attack Ms. Wati for no reason at all. He then decided to raid her house. He later stole her daughter’s jewelleries. This was a senseless killing and an unnecessary robbery.
    
16. I have taken into account the plea in mitigating advanced by your counsel. I find only one mitigating factor, and that was you were remanded in custody for approximately 2 years.
    
17. On count No. 1 (murder), I sentence you to the mandatory life imprisonment. Taking the above factors into account, I set 17 years as the minimum term to be served before a pardon may be considered by the Excellency the President of the Republic of Fiji.
    
18. On Count No. 2 (robbery), I sentence you to 10 years imprisonment.
    
19. The summary of your sentence are as follows:
    
    • (i) Count No. 1 – Murder Mandatory life Imprisonment, with a minimum term of 17

years to be served before a pardon may be considered by His Excellency the President of the Republic of Fiji.

(ii) Count No. 2 – Robbery 10 years imprisonment.

20. Because of the totality principle of Sentencing, I direct that the above sentences are to be made concurrent to each other, that is, a final sentence of a mandatory life imprisonment, with a minimum term of 17 years to be served before a pardon may be considered by His Excellency the President of the Republic of Fiji.
    
21. Pursuant to section 4(1) of the Sentencing and Penalties Decree 2009, the above sentence is designed to punish you in a manner that is just in all the circumstances, to protect the community from people like you, to deter would –he offenders and to signify that the court and community denounce what you did to Ms. Vidya Wati and her family on 13 January 2013.
    
22. You have 30 days to appeal to the Court of Appeal.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Lautoka
Solicitor for Accused : Legal Aid Commission, Suva.