Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Shayam [2010] FJHC 161; HAC043.2008 (4 May 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 043 OF 2008
CRIMINAL CASE NO: 889 OF 2001

BETWEEN:

STATE
PROSECUTION

AND:

JOSEPH MARTIN SHAYAM
ACCUSED PERSON

Counsel: State - Mrs. Bull and Mr. Savou
Accused Person - Mr. A Sen

Date of Ruling: 4 May 2010

RULING

Prosecution called 16 witnesses and closed their case. At that stage in the absence of assessors counsel for defence moved for a direction from court to the prosecution to call another witness for enable cross-examination by Defence.

Prosecution objected to the said application and court refused the application of the Defence and now I am giving the reasons for the said ruling.

It is contended by the defence that the statement of Police Officer Binesh Chand was disclosed and he is a very important witness to show the background of the incident. Also important to show the behaviour of the deceased and the victim and other persons and his observations.

Counsel for state submits that it is the prosecution who will decide which witnesses to call for prosecution and that they have lead enough witnesses to prove the case and need not call any more witnesses. Further submitted that this witnesses evidence is of less value and in the interest of Justice, prosecution is prepared to get the witness down for the defence if the defence intends to call the witness.

The witness in question is not even in the list of witnesses for the prosecution. Of course his statement had been disclosed.

On the 1st day of the trial, prosecution filed a list indicating the witnesses they are intending to call and the witnesses that they are not intending to call. Further prosecution undertook to get those witnesses whom they do not intend to call to court to enable the defence to call them if they wanted.

Again half way of the prosecution case on 22nd April 2010 this application was made by the defence by motion and matter was again settled by prosecution undertaking to get the witnesses mentioned in that motion for enable the defence to call.

Again on 28/4/2010 counsel for state informed court that prosecution has agreed to call further witnesses and called two more witnesses. Thereafter when prosecution wants to close their case his application is made by the defence.

The prosecution enjoys a discretion whether to call, or tender any witness they require to attend, but the discretion is not unfettered. This discretion must be exercised in the interest of Justice, so as to promote a fair trial.

"Where witnesses statements have simply been served as unused material, the prosecution are not under any duty to call the makers of those statements as witnesses. For a judge to make the prosecution to do so would in effect, be to require the crown act as both prosecution and defence" (Archbold Criminal pleadings Chap 4 – 277).

Same time it is the duty of the prosecution to call all relevant witnesses for the assessors to make a decision and for them to decide which witnesses to believe and which part of their evidence to accept.

In this case the defence relies on this witness to testify on the background of the incident and also on the background of the persons involved.

Prosecution has already called 17 witnesses and out of which some witnesses testified in court supporting the defence position according to their statements made to police. With regard to the investigations prosecution has called 7 police witnesses. As mentioned before, prosecution has called many witnesses whom they were not intending to call according to the last list filed on the request of the Defence.

Further the witness in question is not even in the list of witnesses although his statement was disclosed. Therefore prosecution has been fair and reasonable in using their discretion when calling witnesses by not calling only the witnesses favourable to them. On perusal of the statement, as submitted by the state counsel the witness in question is not necessary at all to prove the case for prosecution and will be of less value compared to the witnesses they have called.

Therefore I find that it is unfair and unjust for the court to direct the prosecution to call this witness and I refuse the application by defence.

Although no prejudice is caused to accused, I direct the state to get the witness down to court to enable the defence to call him as a defence witness if they so desire.

Priyantha Fernando
Puisne Judge

At Labasa
4 May 2010