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State v Senikarawa [2003] FJHC 192; HAC0017D.2002S (19 May 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0017 OF 2002

STATE

-v-

PENIASI SENIKARAWA

Counsel: Mr D. Prasad with Ms L. Chandra for State
Accused in Person

RULING

The accused wishes to call two witnesses neither of whom are available until next week. One is Sikeli Koro, and the other is Vani Koro. The accused has been living with them at the Naboro Prison Compound. They are both at Soa Village, Ra and cannot be contacted by telephone. The nearest police post is at Nayavu some 5 kilometres away. The accused did not tell these witnesses before they left for Ra that he would be calling them as his witnesses although the trial had already commenced when they left.

The accused says that he wants them to give evidence of an out-of-court statement made by PW1 and PW2 about the case. He agrees that these conversations were never put to the witnesses when they were giving evidence. In other jurisdictions, the requirement that previous inconsistent statements must be put to the witness alleged to have made the statements is laid down by statute. Section 4 of the English Criminal Procedure Act 1865 is a good example.

In Fiji, it is now well entrenched law that where a witness is alleged to have made a previous inconsistent statement, that statement must be put to the witness if the allegation to be confirmed or denied. Without such an opportunity, allowing the defence to lead evidence of inconsistent statements made out of court leads to a patent injustice. It is of no real assistance to the assessors.

I have however considered two other relevant matters. One is that the accused is unrepresented and is not expected to know even the most trite rules of evidence. The other is that there is a possibility that the two witnesses will be giving other relevant evidence which has not been brought to my attention by the accused due to ignorance. Further the exact nature of the evidence may not have been properly articulated to me.

I therefore rule that the accused’s witnesses may be called to give evidence. I will deal with admissibility of any evidence they give when they do so.

As for the adjournment, the witness Isikeli Koro is a prison officer. The Prison Department ought to be able to bring him and his daughter to court by tomorrow even from Ra.

Indeed, the clerk informs me that the witness Koro is not in Ra, but is at work at Naboro Prison Compound. We will adjourn to 9.30am tomorrow to allow the defence witnesses to appear and give evidence.

Nazhat Shameem
JUDGE

At Suva
19th May 2003