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State v Devi [2015] FJMC 121; Criminal Case 2043.2008 (19 November 2015)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case No: 2043/2008

STATE

V

VEENAL VEENITA DEVI

Counsel: Ms. J. Prasad for the State
: Mr. M. Raza for the Accused
Date of Ruling: 19th of November 2015

RULING

1. The accused is charged with one count of Larceny by Servant contrary to section 274(a) of the Penal Code. The particulars of the offence are "Veenal Veenta Devi between the 1st day of March, 2008 and the 9th day of December 2008 at Suva in the Central Division whilst being employed as a clerk and ANITA JEWELLERS, stole $20,388.00 cash, the property of ANITA JEWLLERS.
   
2. On 11th March 2010 the defence wrote to the prosecution seeking following disclosures:
   
   • Wages Slips of our client for the last 5 years (January 203 – December 2008) whilst she was employed with Anita Jewellers and her FNPF deductions;
     
   • Wages Slips of all others employees of Anita Jewellers of Suva Branch for the last 5 years;
     
   • Copies of cheque butts for the last 5 years;
     
   • Records of all bonus paid to our client and other staffs;
     
   • Monthly Audit carried by Nanda & Company for the last 5 years; and
     
   • Copies of Anita Jewellers Income Tax Return for years 2003 till 2008.
     
3. After numerous adjournments the State informed the Court to fix this case for hearing without submitting these additional disclosures and the defence objected for that.
   
4. Therefore both parties were directed to file submissions which they complied and also allowed to make oral submissions.
   
5. The learned state counsel in her submission submitted that documents sought by the defence is from 2003 to 2008 and is not relevant as this alleged offence was committed in 2008. The State has already disclosed the wage records from 2007 to 2009. As for the copies of the cheque butts they are missing and the investigating officer has already filed an affidavit. Monthly audit was not carried out and the bonus was not paid to the staff and therefore these documents do not exist. The tax return of the complainant is not relevant also and not in the possession of the complainant.
   
6. The learned counsel for the accused in his submission argued that the documents sought by the defence goes to the hearth of the defence case and by reason of non-disclosures would highly prejudiced their case. Also the missing documents would be highly relevant for the defence and asked the prosecution has to reconsider the charge.
   
7. Having considered the respective submissions of both parties I would pronounce my ruling in the following manner.
   
8. The defence is seeking additional disclosures from the State and their position is that these are relevant for their defence and failure to disclose would prejudiced them. Further these would open a new line of defence and also would allow them to test the credibility of the witnesses.
   
9. The State is opposing this application on several grounds. The first ground is that the documents particularly the wage records sought by the defence is well beyond the charge and not relevant. Further some other documents (cheque butt, deposit book and stock book) are missing and therefore could not be disclosed. Since no audit was carried out and no bonus was paid documents relating to them do not exist and the income tax record is in the possession of a third party (Fiji Revenue and Customs Authority).
   
10. In R v H & R v C [2004] UKHL 3; [2004] 2 AC 134 wherein the House of Lords stated as follows:
    

"Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made"

11. In Dakuidreketi v Fiji Independent Commission Against Corruption [2011] FJHC 359; HAM038.2011 (24 June 2011), wherein Justice Gounder recapitulated a guideline issued by the Director of Public Prosecution in 1998 and stated as follows:-
    

". . . . . . . . . These Guidelines exit in addition to the duties of prosecutors under the common law to disclose:

Previous conviction of witness whenever relevant to the case;

Previous convictions of the accused;

Documents intended to be tendered by the prosecution at the trial;

Access to exhibits intended to be tendered by the prosecution at the trial;

Any other exhibit document or statement that the prosecutor should disclose in the interest of fairness"

12. In Chand v The State [2012] FJSC Petition No. CAV 0014 of 2010, 8 May 2012, the Supreme Court considered the English and the Australian position in relation to the rules of disclosure by the prosecution. The English position was stated to be:
    

"An incident of a defendant's right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution, that is, whether such matters strengthen or weaken the prosecution case or assist the defence case. This duty exists whether or not a specific request for disclosure of details of scientific evidence is made by the defence. Moreover, this duty is continuous: it applies not only I the pre-trial period but also throughout the trial".

13. R. v Stinchcombe [1991] 3 S.C.R. 326. As Sopinka J observed in the course of his judgment in that case-
    

".....this obligation to disclose is not absolute. It is subject to the discretion of counsel for the Crown. This discretion extends both to the withholding of information and to the timing of disclosure. For example, counsel for the Crown has a duty to respect the rules of privilege. In the case of informers, the Crown has a duty to protect their identity. In some cases, serious prejudice or even harm may result to a person who has supplied evidence or information to the investigation. While it is a harsh reality of justice that ultimately any person with relevant evidence must appear to testify, the discretion extends to the timing and manner of disclosure in such circumstances. Discretion must also be exercised with respect to the relevance of information. While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant...."

14. Therefore the State has an obligation to disclose all the materials which would strengthen or weaken the prosecution case. This is a continuous duty and applies not only in the pre-trail stage but even throughout the hearing.
    
15. But as noted in R. v Stinchcombe (supra) this obligation on the State is not absolute and subject to some limitations . The State can withhold the documents based on privilege or if the documents are not relevant.
    
16. The State is withholding the wage records on the ground that they are not relevant. According to the letter dated 11th March 2010 the defence is seeking wage records from January 2003-December 2008. The state has already disclosed the record from 2007 to 2009. The alleged offence was supposed to have committed in 2008. In his letter dated 01st March 2013 the counsel for the accused has not mentioned about these wage records and also in his submissions also failed to show how these would be relevant for the defence. Therefore I agree with the State that the wage records sought by the defence are not relevant and the State has no obligation on that.
    
17. The State has further submitted that the audit reports or bonus records could not be disclosed as these do not exist. Already the State has filed an affidavit of the investigating officer. But I agree with the defence that further affidavit from the complainant has to be filed to reconfirm this position and to clear the doubt about these.
    
18. As for the copy of the chequ butt, deposit book and stock book the investigating officer has deposed that these were handed over to the former prosecutor by the complainant and presently missing. But the defence has contacted the former prosecutor and annexed her email to show that these were not handed to her. In view of the above reply from the former prosecutor I believe the investigating officer needs to make further inquiries from the complainant and file an additional affidavit about the status of these documents. In the meantime the State can reconsider about proceedings with this case in view of the missing documents.
    
19. Finally the State has submitted that the Income tax records are not in the possession of the complainant and with the FIRCA. I am also doubtful how these would be relevant for the charge. Also in Dakuidreketi v Fiji Independent Commission Against Corruption(supra) it was noted that "documents that is in the possession of the third parties, the applicant will have to apply for a subpoena as the prosecution's disclosure obligation does not extend to those documents" . Therefore the State has no obligation to supply these documents and if the counsel for accused wants them in the hearing he can apply for a subpoena to retrieve them.
    

ShageethSomaratne
Resident Magistrate