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State v Nabulu [2016] FJHC 802; HAC310.2015S (31 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 310 OF 2015S

STATE

vs

SENITIKI NABULU

Counsels : Ms. J. Prasad and Ms. S. Sharma for State
Ms. B. Malimali and Ms. M. Savou for Accused
Hearings : 1 and 2 August, 2016
Ruling : 2 August, 2016
Written Reasons : 31 August, 2016

WRITTEN REASONS ON THE VOIR DIRE RULING ON THE ADMISSIBILITY OF COPIES OF THE ACCUSED’S CAUTION INTERVIEW AND CHARGE STATEMENTS

1. On 2 November 2015, the accused faced the following information:
   

Statement of Offence

UNLAWFUL CULTIVATION OF ILLICIT DRUGS: Contrary to section 5(a) of the Illicit Drugs Control Act 2004.

Particulars of Offence

SENITIKI NABULU on or about the 6^th day of January 2012 at Gasele Village in Kadavu in the Eastern Division, without unlawful authority, cultivated 59.5 kilograms of Cannabis Sativa, an illicit drug.

2. The matter was then adjourned to 20 November 2015 for a pre-trial conference. The prosecution was directed to state their case theory and the evidence they were going to rely upon to ground a possible conviction, in pursuance of the requirements of section 14(2)(b) and (e) of the 2013 Fiji Constitution.
   
3. On 20 November 2015, the information was put to the accused and he pleaded not guilty to the same. The prosecution needed time to explain their case theory and evidence they intend to call. On 4 December 2015, the prosecution explained their case theory and the evidence they were going to rely upon to ground a possible conviction. They told the court they were relying on an alleged confession by the accused to the police, and other evidence. The defence indicated they were going to mount a voir dire challenge against the accused’s alleged confession. The case was then adjourned to 29 February 2016 for another pre-trial conference.
   
4. On 29 February 2016, the matter was adjourned for pre-trial conferences on 14 April, 21 April, 13 May, 20 May, 8 July and 21 July 2016. On 21 July 2016, the parties agreed for a trial date from 1 to 5 August 2016. Both parties indicated to the court that they were ready for trial. By virtue of this undertaking, the court assumed that all pre-trial matters had been sorted out.
   
5. On 1 August 2016, the first day of the trial, the prosecution asked the court for an adjournment to the next day to enable them to locate the original caution interview and charge statements of the accused. They said, it was possible the same were still in Kadavu Police Station. On 21 July 2016, the prosecution told the court, they were ready for the trial. Obviously, they had misled the court. They were not ready for the trial, because they could not locate an important piece of their evidence. These were matters that should have been attended to during the pre-trial conference, but obviously it was not attended to.
   
6. On 2 August 2016, the prosecution told the court they could not locate the original caution interview and charge statements. However, they said, they had photocopies of the same, and asked for a voir dire on the admissibility of the photocopies of the above documents. Obviously, the test laid down in Regina v Vincent Lobendahn [1972], Fiji Law Reports, Volume 18, page 1 to 9, had to be satisfied.
   
7. In the headnotes to the above case, the following were noted:

“...At the commencement of the trial of an accused person in the Supreme Court on the charges of fraudulent false accounting, counsel for the Crown said he would be tendering in evidence a number of Photostat copies of documents, the originals of which had been irretrievably lost. As a question of law, in the absence of the assessors, the court considered the admissibility of one of the Photostat copies (Exhibit 2) and heard the evidence tendered on that issue.

Held : 1. The law on this question required –

(a) It must be established that the original itself formerly existed, would have been admissible in evidence, and that the copy tendered is a true and faithful reproduction of the original.

(b) The original must be proved to have been lost or destroyed and, if lost, due and diligent search must be established.

(c) It must be shown what happened to the original up to the time when it was lost, and how the copy was made and came into the hands of the person tendering it.

(2) This entails that there must be sworn testimony from a person who saw the original and can swear to the whole of the details from personal recollection, or who had checked the copy with the original, and can swear that it is a faithful reproduction thereof, and this principle is not affected by reason of the fact that the copy tendered is a Photostat.

(3) In the instant case the Court was not satisfied with the evidence as to the existence of an original document, or of a due and diligent search for the same, and Exhibit 2 would not be admitted in evidence...”

8. A voir dire on the admissibility of the photocopies of the accused’s caution interview and charge statements began on 2 August 2016. The prosecution called two witnesses – both police officers. Sergeant 1785 Sakaraia Tuberi (PW1) said, he was the police investigation officer in the case. He said, he was also the charging officer. He said, he formally charged the accused on 8 January 2012 and recorded the same in his own hand writing. He said, the accused signed and he counter-signed the same. PW1 said, he made photocopies of the same and put the same in the police file. PW1 said, the copy shown to him in court is a true and faithful reproduction of the original. On the caution interview notes, PW1 said, the original caution interview notes were handed to him by the interview officer when he completed the same. He said, he photo-copied the same and put the copies in the police file. PW1 said, the copy shown to him in court is a true and faithful reproduction of the original. He said, he took the original caution interview and charge statements to Kadavu Police Station and they were left in the

exhibit room.

9. PW1 said, he rang Kadavu Police Station exhibit writer to search for the original caution interview and charge statements. PW1 said, he last left it there in 2012. Four years had passed. He was briefed that the original documents had been lost and could not be located. PW1 said, his briefing indicated the police had conducted a due and diligent search in the exhibit room in Kadavu Police Station. Detective Inspector Simione Tuivanuavou (PW2) was the second prosecution witness. He said, he caution interviewed the accused in January 2012 and recorded the same in his own hand writing. PW2 said, after the interview, he handed the original interview notes to PW1 as the police investigation officer. PW2 said, that was the last he saw of it. When shown a copy of the same in the courtroom, he said it was a true and faithful reproduction of the original. That was the case for the prosecution.
   
10. The defence said, they will not give evidence. However, they will make a closing submission. The court then listened to the parties’ verbal submissions. The court then ruled the copies of the accused’s caution interview and charge statements as admissible evidence. The court said, it will give its’ written reasons later, because it had to proceed with the voir dire hearing on the admissibility of the copies of the accused’s caution interview and charge statement, in the trial proper.
    
11. I had listened very carefully and carefully considered the two prosecution’s witnesses evidence. Looking at their evidence in their totality, I find them credible and I accept their evidence. In my view, the prosecution had satisfied the test laid down in Regina v Vincent Lobendahn (supra), and thus I ruled the photocopies of the accused’s caution interview and charge statements as admissible evidence. The photocopies of the caution interview and charge statements may be used as evidence in this criminal proceeding. The above are my reasons for declaring the same as admissible evidence on 2 August 2016. I rule so accordingly.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva
Solicitor for Accused : Pacific Chambers, Barristers and Solicitors, Suva.