IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0005 OF 2000S

STATE

V

ANAND DINESH MANI;

And:

ANAND AVINESH MANI

Mr W. Kurisaqila for State
Mr M. Raza for Accused Persons

Hearing: 27th September 2001
Ruling: 27th September 2001

RULING

The Prosecution has made an application to tender the medical report of Roshni Narayan PW1, showing the injuries she allegedly sustained on 18th December 1999, under section 191 of the Criminal Procedure Code.

Section 191 of the Criminal Procedure Code requires certain conditions to be fulfilled before the court can grant leave to admit documents listed under section 191(2). A medical report is certainly listed in section 191(2), but the section requires that “in any case in which the prosecutor intends to adduce in evidence such plan, report, photograph or document he shall deliver a copy of such plan, report, photograph or document to the accused not less than ten clear days before the commencement of the inquiry trial or other proceeding.”

In this case, the Defence has had a copy of the medical report of Roshni Narayan since all the statements and exhibits in this case were disclosed by the Prosecution in the Magistrates Court. However, pre-trial disclosure which is a constitutional requirement is to allow the Defence to adequately prepare its defence. The Defence is entitled to assume that all witnesses disclosed will be called, and that the Defence will have the opportunity to cross-examine them.

A section 191 disclosure is quite separate, because it is a notice to the Defence that an expert witness will not be called, and cannot be cross-examined. The Defence can then file an objection at least 3 days before trial, to the tendering of the report. If no section 191 notice has been served on the Defence by the Prosecution, how can the Defence file a section 191 objection? Section 191 therefore logically requires the Prosecution to inform the Defence that it intends to tender a report without calling the witness under section 191 of the Criminal Procedure Code. Ordinary pre-trial disclosure is not enough.

Surman J came to this conclusion in Senitiki Volavou & Meli Vakamocea -v- The State Crim. App. No. 067 of 1998. In that case an analyst’s report was tendered by the Prosecution to show that the Appellants had been in possession of dangerous drugs. His Lordship held that there must be evidence that the police had given 10 clear days notice to the Defence that the Report would be tendered under section 191. A retrial was ordered.

On the ground therefore that the Prosecution did not inform the Defence that it would tender the medical report of Roshni Narayan at least 10 clear days before trial, I find that section 191 has not been complied with.

The application to tender the medical report is refused.

Nazhat Shameem
JUDGE

At Suva
27th September 2001