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State v Pe [2005] FJHC 5; HAC0024D.1004S (11 January 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 024 OF 2004S

STATE

v.

SAVENACA PE

Counsel: Mr. W. Kuruisaqila for State
Accused in Person

Hearing: 11th January 2005
Ruling: 11th January 2005

RULING

The next witness Emele Salauca has been living with the Accused in a de facto relationship since 1999. They have no children. I asked State counsel if she was a compellable witness and he submits that she is both competent and compellable. The accused himself has no quarrel with this position, saying only that his partner was forced by police to implicate him in her statement. However because he is unrepresented, and because any decision in the matter must determine whether or not she should be told she is not compellable, I consider it necessary to deliver this ruling on her status as a witness.

Section 138 of the Criminal Procedure Code provides:

“In any ... trial the wife or husband of the person charged shall be a competent witness for the prosecution or defence without the consent of such person –

(a) in any case where the wife or husband of a person charged may, under any law in force for the time being, be called as a witness without the consent of such person;

(b) in any case where such person is charged with an offence under Chapter XVII or section 185 of the Penal Code;

(c) in any case where such person is charged in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them.”

That section is not applicable in this case, not only because the witness is not the wife of the accused (David Shik Yacoob (1981) 72 Cr. App. R. 313) but also because the accused clearly consents to the witness giving evidence. The issue in this trial is not competence, but compellability. In the absence of statutory authority, the common law applies.

In Hoskyn v. Commissioner of Police (1978) 2 ALL ER 136, a wife who was reluctant to give evidence against her husband in a case of wounding her with intent was held to be competent but not compellable by the House of Lords. In a judgment delivered by Lord Wilberforce the Court said (at page 138):

“In English law there is only one direct authority, R v. Lapworth [1931] 1 KB 117, in which the Court of Criminal Appeal ... held that the wife was compellable. This case has held the field since 1931, and no doubt, practice has followed it ... The argument for compellability has often been stated in the past, but in parallel with the recognition that the existing law is against compellability.”

The House of Lords then referred to two principles, one, that a competent witness is also a compellable one, and two that wives fell under a general exception based on the sanctity of marriage. At page 142, Lord Wilberforce said:

“My Lords, after careful consideration I have reached the conclusion that R v. Lapworth was wrongly decided and must be overruled, and ... that the wife should be held non-compellable.”

Of course Hoskyn was about a charge of violence against the complainant spouse. In this case, the witness is not a spouse, nor is this a case of violence against her.

In David Shik Yacoob it was held by the English Court of Appeal, that in the absence of a valid marriage certificate, the witness was both competent and compellable. The charges were of conspiracy to rob supermarkets. In Junaid Khan (1987) 84 Cr. App. R, a woman who was the second (polygamous) wife of the accused, and who was asked to give evidence in a drugs related case, was held to be competent as if there had been no “marriage” ceremony at all. There appears to be a general judicial reluctance to extend the rule of the non-compellability of spouse witnesses. In terms of legal principle, this reluctance is understandable. All witnesses generally ought to be both competent and compellable irrespective of the relationship with the accused, the nature of the charge and the status of the witness. This will in turn, emphasise the applicability of the legal process to all and the important principle of equality before the law.

In this case therefore I hold that the witness Emele Salauca is both competent and compellable. She may be called as a witness and is in the same position as all other witnesses.

Nazhat Shameem
JUDGE

At Suva
11th January 2005