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State v Prasad [2015] FJMC 86; Criminal Case 1362.2014 (21 July 2015)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case No: 1362/2014

STATE

V

RAJENDRA PRASAD

Counsel: Ms. M.Khanfor the State
: Mr .R.Naidu for the Accused

Date of Ruling: 21st July 2015

RULING

1. The accused is charged with one count of Abduction contrary to section 285 of the Crimes Decree. The prosecution closed their case on 23rd April 2015 and the court found there was a case against the accused.

2. On 29th May 2015 the accused filed a motion with a supporting affidavit seeking to recall a prosecution witness (Ms. Bibi) for further cross- examination. The application was made pursuant to section 116(1) of the Criminal Procedure Decree. The State is objecting to this application.

3. Both parties were directed to file written submission regarding this issue and they have filed them accordingly.

4. The learned counsel for the accused in his submission submitted that due to accident, mistake and want of foresight he failed to cross- examine Ms. Bibi about her knowledge about the reason why the accused went to seaside on that day and also her knowledge about the accused going to pick his son on that day. Further the counsel submitted that the State would not be prejudiced by this recall and the accused would not receive a fair trial if the witness is not recalled.

5. In her submission the learned state counsel argued that only matter of substance in this witness evidence is that the accused taking the victim to sea wall against her will and this has been established during the re-examination and the issues that the accused wants to raise about the knowledge was also covered in the initial hearing. Therefore recalling this witness would be prejudicial for the State.

6. Having considered the respective submissions and judicial precedents agreed by both parties I would pronounce my ruling in the following manner.

7. This application was made by the accused pursuant to section 116 of the Criminal Procedure Decree. Section 116 of the Decree states:

"(1) At any stage of trial or other proceeding under this Decree, any court may —

(a) summon or call any person as a witness; or

(b) examine any person in attendance though not summoned as a witness; or

(c) recall and re-examine any person already examined –

and the court shall summon and examine, or recall and re-examine any such person if the evidence appears to the court to be essential to the just decision of the case.

(2) The prosecution or the defence shall have the right o cross-examine any person giving evidence in accordance with sub-section (1), and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of any such person as a witness."(Emphasis added)

8. In Kumar v State [2013] FJCA 59; AAU16.2013 (17 June 2013) the Fiji Court of Appeal said:

"More significantly, section 116 (1) states that the court was required to recall the complainant if it appeared to the court that her evidence was essential to the just decision of the case. Therefore the only issue for the court was to determine whether the complainant's evidence was essential to the just decision of the case. If the court was so satisfied then it was required to recall the complainant. The learned trial judge has not considered this factor and he has based his decision on the issue of delay which first of all did not apply because of the circumstances and secondly appears to be the wrong test for determining the application."( emphasis added)

9. In Masters (1992) 59 A Crim R 445, the court (Hunt CJ at CL, Allen and Badgery-Parker JJ) said, at 473:

"This Court has said that, generally speaking a judge should always accede to a request to have a witness recalled for cross-examination upon a point of substance which has been overlooked – however incompetently – unless real and incurable prejudice is created for the party calling that witness: Fleming (unreported, Court of Criminal Appeal, NSW, Hunt, Campbell and Mathews JJ, 12 December 1989), p9".

10. The State is objecting to this application on the basis that this witness has already given evidence on the issue about taking the victim to sea wall and also by recalling this witness again they would be prejudiced.

11. But the main issue to consider is whether this evidence is essential to fair and just decision in this case as per section 116 of the Criminal Procedure Decree. The counsel for the accused has already conceded that failure to cross- examine these issues was due to oversight and mistakes on his part. Jeffrey J in Henning v Lynch [1974] 2 NSWLR 254, said (at 259):

"...The applicable principle is one which in the circumstances here strongly favours the reopening of the prosecution case: where the defendant's case has not been gone into and there is ready to be tendered some additional evidence which by accident, mistake or want of foresight has not been tendered before the prosecution case is closed, it is – to use the words of Cave Jin Hargreaves v Hilliam (1894) 58 JP 655, "a very fit and property thing to allow the evidence to be given unless there is some very good reason".

In this case there was no question of prejudice to the respondent nor was it suggested that the appellants' counsel should be held to a tactical decision. On the contrary his Honour rejected the application because counsel for the appellants has failed to demonstrate that he had been taken by surprise. In my opinion his Honour failed to apply the correct principle and his decision was erroneous".

12. Therefore I would not hold this oversight of the counsel against the accused.

13. The State has further submitted that these grounds were considered during the initial hearing. But as noted above the defence failed to cross- examines the witness about these due to an oversight. Therefore the State also did not raise these in the re-examination. Therefore I would not agree with the State that these grounds were considered during the hearing.

14. I also do not agree that the state would be prejudiced by recalling this witness as they would be able to re-examine this witness or maybe call new evidence to rebut these issues.

15. Finally the witness as alleges by the defence of being aware of the route of the accused may contradict her version about not giving permission to go to sea wall and would also affect the credibility of that witness.

16. Considering all these I think for a just and fair decision this application has to be granted.

H.S.P.Somaratne
Resident Magistrate, Suva