THE MISSING SISTERS

SPECIAL LEAVE TO APPEAL

Chand’s lawyer submitted that his application for special leave to appeal was a rare and exceptional one.

Dip Chand became infamous in June 2005. Prior to that, he was known by some people as an ordinary fisherman. But the disappearance of three sisters of Naria in Rakiraki after a fishing and picnic trip with Chand on June 26, 2005, made him well known for the wrong reason. While Ashika Sherin Lata, 19, Renuka Roshni Lata, 18, and Radhika Roshni Lata, 17, are yet to be found, Chand is serving a life sentence in prison for their murders. For the past two weeks, the Fiji Sun took a look back at the disappearance, the case, Chand’s appeal against his conviction and his quest to appeal against the Fiji Court of Appeal’s judgment. Today, we take a look at how the Supreme Court of Fiji dealt with his application for special leave to appeal against the Court of Appeal judgment affirming his conviction and sentence.

In his amended petition on November 2, 2011 for special leave to appeal against the Fiji Court of Appeal’s judgment, Dip Chand set out some grounds of appeal.

Chand claimed that there was a miscarriage of justice during the trial because the Police and/or the prosecution did not disclose to the defence the petitioner’s (his) medical card kept by Natabua Prison and details of his medical examination at Lautoka Hospital on July 14, 2005 despite consenting to the tendering of his X-ray report dated on the same day during the trial.

He claimed the trial Judge erred in law and in fact when he misdirected himself during the trial within trial (voir dire) by wrongly assuming that he was released by the Police in the evening of July 28 or 30 and yet not complaining to anyone about Police impropriety.

He also claimed that the trial Judge erred in law and in fact when he disregarded the relevance of the Rakiraki Police Station diary, which contained notes crucial to the question of admissibility of the confessions obtained by the Police.

Furthermore, he claimed that the trial Judge erred in law when he did not direct his mind to the

fact that his caution interview was oppressive in that the questioning started at 10.13pm on July 4, 2005, ending at 2.40am the next day. Chand also claimed that the trial Judge erred in law and in fact when he convicted him in the absence of any cogent evidence to prove the theory contained in the confession.

He also claimed that the trial miscarried when prosecution witness Vijay Kumar Singh gave evidence about matters which were prejudicial to him (Chand) and as such he was denied a fair trial resulting in a miscarriage of justice.

Also, he claimed the Court of Appeal Judges erred in law when they failed to provide a reasoned decision other than stating that the summing up as a whole was fair and balanced, which did not disclose any errors of law. Chand claimed that the Court of Appeal Judges erred in law when they confined and/or limited the role of the trial Judge to only putting counsels’ submissions to the assessors without realising that it was important for the trial Judge to give his version as well. He also claimed that the State failed to discharge the onus upon it to prove that the DNA sample obtained from the crime scene and the victims’ toothbrushes were not contaminated.

He claimed the trial Judge failed and/or neglected to fairly put his defence to the assessors which resulted in substantial miscarriage of justice. Furthermore, he claimed the trial Judge erred in law and in fact by failing to assist the assessors from isolating favourable evidence from the least favourable ones, in effect the Judge repeated the State and defence case without assisting the assessors.

Chand claimed the trial Judge and the Court of Appeal Judges failed to direct the assessors or themselves that the onus was on the State to disprove that the confession was not obtained as a result of Police impropriety on him and further the trial Judge misled the assessors by implying that there was onus on him (Chand) to complain to the Police. His last ground of appeal was that the trial Judge failed to direct and remind the assessors that in a case involving circumstantial evidence if there is any doubt or hypothesis consistent with innocence, it was their duty to acquit.

Supreme Court on the grounds of appeal

The Supreme Court said it was necessary to note that most were new grounds of appeal in the sense that except for two, none of the others were taken up in the Court of Appeal.

“Given that the criteria set out in Section 7(2) of the Supreme Court Act No.14 of 1998 are extremely stringent and special leave to appeal is not granted as a matter, of course, the fact that the majority of the grounds relied upon by the petitioner for special leave to appeal have not been raised in the Court of Appeal, makes the task of the Petitioner of crossing satisfying the threshold requirements for special leave even more difficult,” the court said.

A rare and exceptional application

Chand’s lawyer submitted that his application for special leave to appeal was a rare and exceptional one, which raised questions of general legal importance involving substantial questions of principle affecting the administration of criminal justice.

In particular, he emphasised that the ground relating to the failure on the part of the prosecution to disclose the medical card maintained at the Natabua Prison raised important issues pertaining to the prosecution’s duty to disclose material evidence to the defence and another ground concerned important issues of the integrity of DNA samples in criminal investigation and trial. He had also submitted that the denial of special leave at least with regard to these two grounds would result in a substantial and grave injustice.

The State’s response

The State lawyer had stressed that the grounds urged by Chand’s lawyer were mostly factual which had been dealt with fairly and adequately in the High Court judgment after the voir dire hearing, the High Court Judge’s directions to the assessors, as well in the judgment of the Court of Appeal.

She also stressed that only the last two grounds urged by Chand had been taken up by him in the Court of Appeal and that they had been addressed in the Court of Appeal judgment, and that no explanation had been offered by Chand for his failure to take up the rest of the matters in his appeal to the Court of Appeal.

In light of these submissions, the Supreme Court Judges considered it sufficient to focus on the two issues which had been stressed by Chand’s lawyer.