IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0002 OF 1995

Between:

STATE

v.

JOELI KURUVOLI
IOBE TAKALA
APIMELEKI AMARIKI

Counsel: Mr. McNaughtan for State
Mr. Veretawatini for Accused

Hearing: 22 May 1995
Decision: 22 May 1995

ORAL DECISION OF PAIN J.
ON APPLICATION TO CALL ADDITIONAL WITNESS

This trial commenced on Monday 15th May 1995. On Wednesday the 17th May 1995 the Prosecutor gave notice of intention to call Semi Nagatalevu as an additional witness. That notice and brief of evidence was served on the defence that day.

The defence opposes the calling of this witness. At this stage the matter for consideration is whether a witness who has not given evidence at the preliminary inquiry, can be called. That is a matter for determination under Section 288 of the Criminal Procedure Code.

If a ruling is made that the requirements of the Section have been met, further consideration will need to be given to the competency of the witness to give evidence. Semi Nagatalevu is only six years of age. That issue must be considered under Section 10 of the Juveniles Act.

Section 288 of the Criminal Procedure Code provides that no witness who has not given evidence at the preliminary hearing shall be called by the prosecution at any trial unless the accused person has received reasonable notice in writing of the intention to call such witness. The only question in issue is whether or not reasonable notice has been given. This must be determined by the Court in terms of the later provision of the section which says, "the court shall determine what notice is reasonable regard being had to the time when and the circumstances under which the prosecution became acquainted with the nature of the witnesses evidence and determined to call him as a witness".

There are four matters which the court must consider. These are:

1.	The time when the prosecution became acquainted with the nature of the witness's evidence.

2.	The circumstances under which the prosecution became acquainted with the nature of the witness's evidence.

3.	The time when the prosecution determined to call him as a witness.

4.	The circumstances under which the prosecution determined to call him as a witness.

The word prosecutor in this section clearly means the Director of Public Prosecutions. That is the person charged with the duty of prosecuting in this court. It necessarily includess a prosecutor from the office of the Director of Public Prosecutions conducting the particular prosecution. That person is responsible for the conduct of the prosecution and decide which witnesses shall be called.

Turning now to the criteria in Section 288. It is appropriate to deal with the No.1 and 3 together. That is the time when the prosecution became acquainted with the nature of the witness's evidence and determined to call him as a witness. In this case that time was on the 16th of May when the prosecutor advised the Court in the absence of the Assessors that he had just been acquainted with the fact that a statement had been taken from Semi Nagatalevu and subject to obtaining that statement he would be seeking to call Semi Nagatalevu as an additional witness. I accept that the prosecutor learnt of these facts for the first time on that day. The prosecutor had no prior knowledge that Semi Nagatalevu had made a statement of any sort to the police. At that time an indication was given that Semi Nagatalevu would be called as a witness. The formal notification was given on the 17th of May.

Criteria 2 and 4 in Section 288 can also be dealt with together. They are the circumstances under which the prosecution became acquainted with the nature of the witness's evidence and determined to call him as a witness. The circumstances were that the prosecutor expected to call other witnesses to give this particular evidence. On the 16th of May he learnt for the first time that those witnesses could not give that particular evidence but their son had witnessed the incident and could give evidence. The prosecutor learnt of this while the second of the proposed witness's parents was giving evidence. Having learnt of the circumstances, the prosecutor made the decision to call that witness if possible. Advice was given to the Court. The formal statement was served the following day.

The defence submits that this notice was not reasonable.

Having regard to the criteria, I have mentioned and the circumstances that I have outlined, it is apparent that the prosecutor gave notice immediately he became aware of the pertinent facts. Because of the stage the trial had reached, he could not have given any greater notice. Having regard to the criteria expressed in Section 288, I must hold that reasonable notice has been given by the prosecution. I must have regard to the reasonableness of the notice in writing which was given on the 17th of May which was the day after the prosecution became aware of the situation.

My concern however, is that notice was given after the trial had commenced. It must be expected that these situations do arise from time to time. It is certainly not a ground in itself for excluding a witness from giving evidence. However, in this case, evidence of the nature intended to be given by the proposed witness was included in the depositions. It is not new evidence that is proposed to be given but a new witness giving the same evidence. The defence cannot be said to be taken by surprise by the allegation that this witness will be making.

The defence has not advanced any specific ground as to why the notice is not reasonable. For instance it is not said that the defence need to make further enquiries or seek rebuttal evidence if the witness is called. Nor it is said that the late notice affects or prejudice's the conduct of the defence in any specific way. However, in the interest of fairness, if any such matters are present (although none had been advanced in submissions) then I would consider an application for adjournment.

My ruling is that Semi Nagatalevu, who has not given evidence at the preliminary inquiry, may be called as a witness by the prosecution at this trial.

JUSTICE D.B. PAIN
HAC0002O.95S