In the High Court of Fiji at Suva
Civil Jurisdiction
Civil Action No. HBC 483 of 2007

Between:

James Raghwan Raman
Plaintiff

And:

National Union of Factory & Commercial Workers
First Defendant

And:

John V Mudaliar
Second Defendant

And:

Alfred Aisea
Third Defendant

And:

Peter Banuve
Fourth Defendant

And:

Elisabeta Copeland
Fifth Defendant

And:

Saijad Hussein
Sixth Defendant

And:

Dhurup Singh
Seventh Defendant

And:

Matereti Tuikoro
Eighth Defendant

And:

Jay Karan
Ninth Defendant

And:

Hirdesh Nand Pande
Tenth Defendant

Appearances: Mr H. Nagin for the plaintiff
 Mr V. Maharaj for the defendants
Written submissions of plaintiff filed on 7 July, 2014
Written submissions of defendants filed on 9 July,2014

JUDGMENT

1.	On 20th June,2014, the plaintiff filed summons to vacate the trial dates fixed for 21st and 22nd July,2014.

2.	In his affidavit in support, the plaintiff states that:

a)	He has been charged with seven counts in the Suva Magistrates' Court criminal case No. 54 of 2013.

b)	The particulars of offence in the criminal case relate to his alleged actions or omissions while in the employment of the first defendant.

c)	If the hearing of the civil case in July proceeds,it will be inequitable and prejudicial to him, as he would loose his constitutional right of privilege against self incrimination as he "may be forced to answer questions in cross-examination", which could be used against him in the criminal case,contrary to section 14 of the Fiji Constitution. 

d)	He will not be able to exercise his constitutional rights in the criminal trial in October, if he gives evidence in the civil hearing in July, 2014.

3.	In an affidavit in opposition, John Mudaliar, General Secretary of the first defendant states:

a)	Article 15(3) of the Fiji Constitution provides that every person charged with an offence and a civil dispute has the right to have the case determined within a reasonable time.

b)	The tenth defendant was commissioned by the executive committee of the first defendant to investigate allegations relating to abuse of office by the plaintiff. A report was prepared, on which basis the plaintiff was terminated from the first defendant. 

c)	If the trial date is vacated and the health of the tenth defendant, a witness ( who has had a stroke)deteriorates, the first defendant would stand to suffer irreparable damage. The whereabouts of the sixth and seven defendant are unknown.

4.	The determination
The plaintiff's application is founded on the basis that he "may be forced to answer questions in cross-examination", which could be used against him in the criminal case, contrary to section 14 and 15 (1) of the Fiji Constitution. 

Mr Nagin, counsel for the plaintiff in his written submissions has cited Article 14 (2) (a) and (j) of the Constitution of the Republic of Fiji. 

Article 14 (2) enshrines the rights of accused persons. Article 14 (2) (a) and (j) read as follows:

 Every person charged with an offence has the right 
To be presumed innocent until proven guilty according to law...
To remain silent, not to testify during the proceedings, and not to be compelled to give self-incriminating evidence, and not to have adverse inference drawn from the exercise of any of these rights.

Article 15 states: 

Every person charged with an offence has the right to a fair trial before a court of law.

Mr Nagin has also cited several useful cases on the privilege against self incrimination. But I do not find that any of these cases enable a trial date to be vacated on this ground.

Mr Maharaj, counsel for the defendant in his written submissions, has quite correctly pointed out that the plaintiff is seeking a stay of his own civil proceedings, while in the cases from other jurisdictions of UK,Australia and USA, the applicant had invariably been the defendant facing a civil claim as well as a parallel criminal charge. Mr Maharaj submits that the defendant's constitutional right to have the case determined within a reasonable time would be compromised, if the hearing in July is vacated.

The privilege against self-incrimination rule is set out in section 20 (1) of the Civil Evidence Act. 

In my judgment, in order to invoke this privilege there must be a real risk as distinct from a possible risk. Moreover, it is elementary that a party must make a claim for privilege in respect of questions as and when they arise. In the present case, the plaintiff foreshadows that questions may be asked and seeks a vacation of the hearing dates till the criminal case is concluded in October, 2014. I pose the obvious question: what if the criminal case is not concluded in October, 2014?.

Cross on Evidence,( 7th Edition, 2004) at pages 778 to 779 states:

It is for the person claiming privilege to assert it and to identify its precise basis. The gist of the privilege is that the giving of answers or the production of documents would tend to expose the claimant to the apprehended consequence. ....

The requirement of reasonable grounds means that a genuinely held but unfounded fear will not suffice. (emphasis added, footnotes omitted)

On the practice to be followed, Cross on Evidence,( (op.cit) at page 780 provides further:

 The witness's mere statement that an answer might have this effect is not sufficient, although it is on oath and even if there is no doubt concerning bona fides. The court must see from the circumstances of the case, and from the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from the answer. The judge must come to the conclusion that such danger is real and appreciate with reference to the ordinary operation of law in the ordinary course of things, not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency so improbable that no reasonable person would suffer it to influence conduct.(emphasis added, footnotes omitted)

Mr Nagin has appropriately reproduced a passage from the judgment of the Court of Appeal Rio Tinto Zinc Corp v Westinghouse Corp Ltd,[1978] AC 547 at 581( a case that was appealed to the House of Lords) where Shaw LJ trenchantly said:

The question is, whether there is a recognizable risk? The principle which protects a witness from obligatory self-incrimination is not to be qualified by or weighed against any opposing principle or expedient consideration so long as the risk of self-incrimination is real in the sense that what is a potential danger may reasonably be regarded as one which may become actual if the witness is required to answer the questions or to produce the documents for which privilege is claimed. (emphasis added)

The following comments of Lord Denning in the same case as regards "oral testimony "at page 562 to 563 would allay the plaintiff's fears:

The only practical test of any question is: "Is it relevant? Does it relate to the matters or to go into other things with which the dispute is not concerned. But it is said there is a difficulty. The witnesses are not conversant with the issues in the case. They do not know what is relevant, and what is not. Any difficulty on that score is readily overcome. By agreement (and I think even without agreement) these witnesses, when they are asked to give evidence, can and should have legal advisers as their elbow. There are very reputable and responsible advisers on each side. If a question is irrelevant the witness will be told and advised not to answer. So the point can and should be resolved by the responsible lawyers on each side without difficulty. (emphasis added)

I conclude that the plaintiffs fear that questions may be asked incriminating him is not a ground for vacation of hearing dates, that has spawned a succession of adjournments by both the plaintiff and defendants after Order 34 was filed. 

I decline the plaintiff's summons.The plaintiff shall pay the defendants costs summarily assessed in a sum of $ 4000 in 14 days. 

15th July, 2014

A.L.B.Brito-Mutunayagam
Judge