THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC134 OF 2014

STATE

V

MAAN SINGH

Counsels : Mr.Kumar R for the State
 Mr. Reddy for the Accused
Hearing : 28 September 2015
Ruling : 29 September 2015

RULING

[1] The accused in this case is charged with Rape and Sexual Abuse of a girl below 13 years of age. On 28th September 2015, when the trial commenced with the empanelling of assessors and taking the plea of not guilty to the charges by the accused, this Court made its opening address to the assessors.

[2] When the learned State Counsel was given the opportunity to state his case to the assessors, he informed Court that Prosecution Witness No. 3 could not be called as she had emigrated to the United States of America. The Investigating Officer informed Court that the witness had emigrated to USA in December 2014.

[3] When this information was revealed, learned Counsel for the accused sought an adjournment of trial on the following grounds;

i. the prosecution had failed to inform the accused that it is "calling only 3 of the 5 witnesses within a reasonable time before the trial";

ii. the prosecution has failed to comply with the provisions contained in Section 134 of the Criminal Procedure Decree when it sought to present statement made by the absent witnesses through the Investigating Officer.

[4] The learned State Counsel objected to the application for adjournment as the complainant is a child and long delay in recording her evidence would adversely affect her recollection of events in relation to the offences, the accused was charged with.

[5] The parties were afforded an opportunity to tender written submissions supported with authorities that they intend to rely on, in support of their respective positions, by granting a short adjournment. Parties have tendered their written submissions supported by authorities and the ruling on the application for adjournment is due today.

[6] It is submitted by the accused in respect of his first ground that "the Constitution of Fiji also gives an accused the right to a fair trial" and that "requires the accused be able to use the witnesses that the prosecution does not intend to call". It is further contended by the accused that "a reasonable time must be given after disclosure that the prosecution does not intend to use the witnesses whose statements have been given."

[7] According to the accused, this duty is "not only entrenched in common law and the Constitution but the code used by the DPP's office".

[8] In support of his contention, the accused relied upon the reasoning of the judgment of The State v Jamuna Prasad [1995], FJHC 201 in exercising its appellate jurisdiction. 

[9] It is proposed to refer to the relevant statutory provisions and relevant considerations, before this Court ventures to consider the judgment of The State v Jamuna Prasadand its implications on the duty of the prosecution to provide reasonable time in informing the accused of not calling any witness whose statement has been given, as argued by the accused.

[10] The High Court in considering an adjournment is governed by the following provisions contained in Section 223 of the Criminal Procedure Decree 2009:

"223. — (1) If the court considers it necessary or advisable to postpone the commencement of the trial or to adjourn the trial by reason of the absence of witnesses or any other reasonable cause (which shall be recorded in the proceedings), the court may — 

(a)	from time to time postpone or adjourn it on such terms as it thinks fit and for such time as it considers reasonable; … "

[11] It is clear from the section, that this Court could postpone the commencement of the trial "by reason of the absence of witnesses or any other reasonable cause". The prosecution did not move for postponement of the commencement of trial due to absence of the witnesses. It is the accused who moved for postponement of the commencement of trial. Since the absence of witnesses is not a consideration the accused has relied on in his written submissions, he must have relied on the other ground contained in the section for postponement of the commencement of trial, namely "any other reasonable cause" when he made his application.

[12] In granting adjournment, the considerations that should be addressed to by a trial Court are laid down in the judgment of Rajesh Chand &Shailesh Kumar v The State [2001] 2 FLR 400 as whether the failure to grant adjournment would "defeat the rights of the parties altogether or to do an injustice to one or other of the parties … ". It also stated "where the refusal of an adjournment would seriously prejudice a party, an application should be granted."

[13] The application of the accused should be considered in the light of these considerations as laid down by the Court of Appeal. It is therefore; appropriate to consider the argument advanced by the accused under the following criterion:

a)	If adjournment is not granted whether the accused will be able tofully present his defence and if he is not to the degree to which his ability is compromised, (Blackstone's Criminal Practice 2011 Ed) at D5.15;

b)	Considering the competing interests of the parties the Court must examine the likely consequences of such adjournment such as the likely length and the need to decide the facts whilst the recollections are fresh.(Blackstone's Criminal Practice 2011 Ed)at D5.15;

[14] As already stated, the accused's grievance is that the prosecution had failed to inform him, that it is "calling only 3 of the 5 witnesses within a reasonable time before the trial".

[15] The accused heavily relied on the judgment of The State v Jamuna Prasad to drive home his point and had particularly relied upon the following portion of the said judgment:

" Item 5 relates to names, addresses and statements of persons interviewed by Police, who are not intended to be called as witnesses. As earlier stated, there is a common law duty on the prosecution to provide a defendant with the names and addresses of people known to be able to give material evidence who are not being called to give evidence for the prosecution."

[16] The Court of Appeal, relied on the judgment of R v Bryan and Dickson (1946) 31 Cr. App. R. 146 in making this ruling and had noted " however there is some conflict on authority as to whether a copy of that person's statement need also be supplied.

[17] The DPP, in his submissions stated that there has been timely disclosure of all relevant witnesses who have been part of the prosecution case theory, in keeping with the ruling of The State v Jamuna Prasad.

[18] The said judgment although stressed upon the duty of the prosecution to "to provide a defendant with the names and addresses of people known to be able to give material evidence who are not being called to give evidence for the prosecution" it had not laid down a time frame during which it must be complied with. The accused says it should be done "within a reasonable time before the trial". 

[19] In R v Bryan and Dickson(supra) what the Court emphasised is, in relation to giving notice to the accused, that " in the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence a witness whom the prosecution know can, if he is called, give material evidence."

[20] Lord Denning, in Dallison v Caffery [1965]1 QB 348 offered a clarification to in R v Bryan and Dickson(supra) in following terms;

 " The duty of a prosecuting counsel or solicitor as I have always understood it, is this: if he knows of a credible witness who can speak to material facts which then show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence."

[21] The DPP in this instance gave notice of the nature of the evidence as narrated by the witness to the accused with the disclosures. Thereafter, the witnesses; who could not be called due to their unavailability, too was disclosed to the accused at the commencement of the trial even before he has addressed the assessors. Thus, the notice adequately offers ample opportunity to the accused to either call them on his own motion only if the trial proceeds to that stage.

[22] The accused, need not disclose his defences beforehand at the very commencement of the prosecution case. But, he must convince this Court that how these absent and non-called witnesses are materials to his defence and it is prejudicial to proceed to trial without securing their attendance. 

[23] In this regard, the following distinction could be made in the case before this Court. The prosecution has, having provided copy of the statement of the absent witness along with its disclosures had sought summons on her. To that extent, this witness is not a witness who is not relied upon by the prosecution. The DPP would have called her if not for the physical impossibility posed by her taking up residence in another country, since it already sought summons on this witness.

[24] As noted by the accused himself this witness is only summoned to present the circumstances which led to the discovery of the alleged sexual act. This witness is not a witness for "recent complaint". As the accused says she had "closed the room in the afternoon and questioned the victim who then told her that the reason for her grades to be slipping was because she was raped". This inquiry was made after "the victim's brother's teacher informed" her husband "that the child's grades were slipping and the victim was making bad drawings".

[25] This witness made the discovery of "rape" only on 24th April 2014, whereas the information reveals 2nd April 2014 as the date of offence. This witness is therefore, if at all called by the prosecution, would explain the delay of making the allegation by the victim and that too without a name of the accused being mentioned. The victim was not aware of the name of the accused. This is essentially on the consistency of the victim's narration of events.

[26] As already noted, the accused had failed to explain as to how the non-availability of these witnesses affects his defence. In Shameem v State [2007] FJCA 19, it was observed that "in such a case the defence would be wise to provide particulars to support its contention that they were material… ".It is also cited by the High Court, in In re Application by Abinish Kumar Nand[2008] FJHC 191, whilst guiding itself by the judgments of R v Cavanagh [1972] 2 All ER 704,R v Shaw [1972] 1 WRL 679 and R v Leung Chi-sing Cr App 37/92, of the observations that "the Court has to make an assessment of the relevance and impact of the absent witness's proposed testimony"and "whether by reason of the absence of any particular witness the accused will be unable to receive a fair trial".

[27] This is particularly so as Archbold (2011 Edition at 4-275) observes that "the defence cannot be always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded".

[28] The charges dependant on the credibility and the quality of the evidence offered on elements of offences and identity by the only witness to the incident, the victim. Other witnesses merely narrate their involvement at various stages of investigations, since discovery of the offence by PW 3.

[29] The accused totally denied the accusation in his statement to Police and raised an alibi, which the Police had checked up by conducting further investigations. In such a situation, the accused must satisfy this Court as to how his right to a fair trial is denied when a prosecution witness who merely narrates evidence regarding consistency of the version of the victim is absent.

[30] The accused complains that the prosecution would only call three witnesses from the eight persons whom statement were recorded. Again he fails to clearly state as to how his defence is affected. In the circumstances, it is the considered opinion of this Court that the rights of the accused are not prejudiced by the decision of the prosecution in not calling some of the witnesses and informing that decision at the commencement of the trial. There is no "other reasonable cause" as per Section 223 of the Criminal Procedure Decree established by the accused.

[31] The complainant is still below 13 years of age. Postponement of trial would undoubtedly result adversely on accuracy of her memory, in relation to this unpleasant incident.

[32] It may be appropriate to conclude this segment of the ruling by quoting the following dicta of the Court of Appeal in Shameem v State (supra) which in turn quoted from the judgment of Apaitia Seru and Anthony Fredrick Stephens v The State [2003] Crim App AAU 41 and 42 that "the Court has a duty to ensure that the interest of justice are met and the more serious the charge the greater the interest of the community in ensuring that case goes to trial."

[33] In relation to the second ground as raised by the accused that the prosecution has failed to comply with the provisions contained in Section 134 of the Criminal Procedure Decree when it sought to present statement made by the absent witnesses through the Investigating Officer, should be dealt with. It is suffice to note that the learned State Counsel had clearly submitted to Court that he would not seek to tender the statements of the witnesses who are not called by him through the Investigating Officer. In view of this clear undertaking, this ground need not be dealt with, as it does not arise for consideration.

[34] In view of the above reasoning, the application by the accused to postpone the commencement of the trial is hereby refused.

ACHALA WENGAPPULI
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva
Solicitor for the Accused : Reddy and Nandan Lawyers