State v Benefield [1989] FJHC 1; Hac0001.1988s (28 June 1989)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 1 OF 1988

Between:

STATE

VS.

MICHAEL DESMOND BENEFIELD

RULING

At the beginning of this trial and after the State had opened its case to the assessor, this Court was informed that all the original documentary exhibits including the caution interview record of the accused could not be located and were not available.

The trial was then adjourned to enable the State to try and locate the original exhibits or tender secondary evidence of the same.

Since then this court has conducted a trial "trial -within a trial" to decide whether or not Photostat copies of the original documents are to be submitted.

In the 'trial-within-a-trial' the prosecution called the investigating officer SP. Moses Driver; Mrs. Dew Stevens, the Office Accountant with Munro, Leys & Co.; Dr. Sahu Khan the President of the Fiji Law Society in 1985 and Mrs. Nazhat Khan an officer in the Office of the DPP.

There was also tendered in the course of ' the trial-within—a-trial' the following exhibits:

Ex. (1) A Documentary Exhibits Register;

Ex.(2) A bundle of photocopy documents comprising 10 sets marked Exhibits 2(A) to (J), each of which had 2 sheets of paper stapled together;

Ex.(3) A handling Over Note: and

Ex.(4) A Blank Cheque Requisition Form of Munro Leys & Co.

More specifically, the first page of each of the 10 sets in Exs. 2A to J is a composite photocopy of 2 or 3 separate items being always a cheque requisition form and cheque butt, and in 3 instances (2B, 2C, and 2I) a receipt appears.

The second page in each of the 10 sets carried a photocopy of a cheque corresponded to the butt on the first page of the exhibit together with the reverse side of the cheque.

The principles governing the admissibility of secondary evidence by way of Photostat copies is conveniently and comprehensively canvassed in the reported ruling of Goudie J. in R v Vincent Lobendahn 18 FLR. 1. It was there 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."

(see also Phipson on Evidence 13^th edn. Paras: 36 – 23; 36 – 29 and 36 – 30)

More recently the Fiji Court of Appeal Satya Prasad and Anr. v. R Cr. App. No. 56 of 1980 reaffirmed a long established exception to the "best evidence rule" when it said:

"Secondary evidence may be given in the absence of better evidence which the law requires to be given first, when a proper explanation is given of the absence of the better evidence."

The prosecutions evidence as to requirements 1(a) and 1(c) above, came principally from Mrs. Dew Stevens who when dealing with the photocopy documents in Exhibit 2 in her evidence, first described the accounting system in Munro Leys & Company and in particular that part dealing with the raising of cheques from client's trust accounts maintained by the firm.

She described how a cheque requisition form (Ex.4) was the initial or primary document within the firm's accounting system, which would (to adopt Mr. Bale's language)" ...put the whole withdrawal system in motion".

In particular she described how if a cheque requisition form had been signed by a partner in the "AUTHORISED BY.............." space provided at the bottom of the form, it was processed "automatically" and a cheque and butt would be raised for the signature and initialling, respectively, of two authorized signatories.

In respect of the 10 photocopy cheque requisition forms Ex. 2A to J she identified them all to have been authorized by the accused and whilst admitting that the butts and cheques were neither written up or signed by the accused, she was able to identify the accused's handwriting and signatures on the reverse of the two cheques comprised in Exs.2F and 2G which she recalled was present on the original cheques.

She described how she personally made 7 or 8 original photocopy sets (for want of a better expression) of Ex.2A to J from the original documents. She was careful to say each set of photocopies was made from the original documents and were not copies of photocopies as was suggested to her in cross-examination.

In her evidence she did not clearly account for all the sets of photocopies she said she personally made from originals but her evidence is clear that they were made for each of the partners of the firm and each of the members of the Law Society's committee of inquiry at which she attended as a witness and produced several sets of photocopies together with the original documents. She also retained a set for herself with which she has never parted custody of.

The particular set Ex, 2A to J she identified as being one of those she personally prepared and produced at the inquiry. She also testified to personally receiving it back from Mr. Hemant Patel the Secretary of the committee of inquiry. At this stage it is convenient to interpose the evidence of Dr. Sahukhan who was the chairman of the Law Society committee of inquiry. In respect of Ex.2A to J he was able after close examination to identify his original handwriting and signature at the top left hand corner of the composite photocopy page of each of the 10 sets.

And after some confusion as to when the photocopy exhibits 2A to J were produced to the inquiry he said in an answer to Mr. Bale's question:

"Q: I was a bit confused, I thought that at some stage you said you did not receive any photocopies at all.

A: I received the photocopies to this extent that here we have originals and here we have the photocopies. We checked the photocopies with the originals, and when I satisfied myself that the photocopies represented the originals I then signed the exhibit numbers (signature and date), and handed back the originals to be returned to the firm of Munro Leys and company. I am sorry if I misled you."

Later in answer to the Court's questions he said:

"Q: If those photocopies bear your original handwriting on them, can you say those were the actual documents you had in the inquiry?

A: Yes, Sir.

Q: How many sets of copies did you sign in the inquiry?

A: According to my recollection, only one set, sir.

Q: Your set?

A: Yes, my lord."

Having carefully considered all the evidence led by the prosecution, I am satisfied beyond any reasonable doubt that the original cheque requisition forms, cheque butts, cheques and receipts of which Exhibits 2A to J are photocopies, previously existed and, with the exception of the receipts, were part of the normal accounting records of Munro, Leys & Co. and would have been relevant and admissible evidence in this case had they been available.

Furthermore I am satisfied that whilst the originals were in the custody and care of Mrs. Dew Stevens, she personally made photocopies of them in the composite form in which they now appear and are tendered in Court as Exs.2A to J. In particular, I am satisfied that Mrs. Stevens herself made the photocopy Exhibits 2A to J which she verified as accurate and which she later tendered to the Law Society inquiry of which Dr. Sahu Khan was the Chairman.

Needless to say on this aspect of the evidence to the extent that these is any conflict between this witness and Dr. Sahu Khan, I prefer and accept the evidence of Mrs. Stevens which was meticulous and detailed and reflected a better recollection of events surrounding the original custody and creation of Exs.2A to J.

That Exhibits 2A to J were personally used by Dr. Sahu Khan cannot be doubted as I am satisfied that the top sheets of Exhibits 2A to J bears his original handwriting at the top left hand corner. The writing was identified by the witness himself and consisted of the Inquiry exhibit number: his signature and the date on which they were received. Furthermore he said he only signed his set at the inquiry and does not now recall what happened to it after it was used in the inquiry.

Mrs. Dew Stevens however was able to supply the 'missing-link' in the chain of physical custody of the photocopy exhibits 2A to J just as she was able to positively identify the signature in the "authorized by" column of each of the cheque requisition forms as being that of the accused.

As to the second requirement 1(b) the prosecution relies on the evidence of the investigating officer Sp. Moses Driver (then an Inspector) and Mrs. Narzhat Khan of the DPP's office.

Sp. Driver testified that he uplifted the original exhibits from Mr. C.D Singh and Mrs. Dew Stevens. These comprised cheques, cheque butts and cheque requisition forms of Munro, Leys & Company.

In particular, in respect of the original documents, he received from Mrs. Dew Stevens, he identified a handing over note' (Ex.3) which he signed dated at the time he took possession of the cheques and cheque requisition forms therein listed which included the 10 cheques that appear as photocopies in the second pages of Exs.2A to J.

The next described how he had prepared a list of the original exhibits in his possession and which he submitted together with the original exhibits to the official police exhibit keeper on the 13^th of November 1986 (See: relevant entry in Ex.1) for safe-keeping in the Police Exhibits Room at the Central Police Station.

Thereafter the original exhibits were taken out and returned to the exhibit keeper on several occasions until the 28^th of august 1987 when the original exhibits were taken out by the witness: "to Court" for the purpose of the preliminary inquiry.

Sp. Driver next saw all the exhibits on the 23^rd of September 1987 on which date he recalls giving evidence at the preliminary inquiry and on which occasion he tendered the original interview statement of the accused, which was part of the contents of the envelope in which all the original exhibits were kept out of which he had removed it.

Since that date the witness's recollection as to what happened to the envelope containing the original exhibits was, to say the least, uncertain until Friday the 9th of June 1989 when his attention was directed to the original exhibits by the learned Acting Director of Public Prosecutions.

As a result he searched his office at the at the Police Academy and the Exhibits Room at the Central Police Station (twice); his previous offices at the Serious Crimes Office at the Central Police station and Vanua House and an improvised exhibits room in the Serious crimes Office when it was located at the Central Police Station. All to no avail.

In similar vein was the evidence of Mrs. Narzat Khan who had custody of the relevant police file in this case immediately prior to preliminary inquiry date.

She does not recall ever seeing the original exhibits at any time during which she had the conduct of the case, confining her preparation to photocopies included in the relevant police docket, nor did she request any other photocopies to be prepared of them. She too searched both offices, which she occupied with negative results.

I am satisfied that the originals are not merely misplaced but have become irretrievably lost since the 23^rd of September, 1987 the date when they were last seen by the investigating officer and that they remain lost in spite of a careful and diligent search being conducted for them in all places that they are most likely and might reasonably be expected to be found.

In the result I admit Exhibits 2A to J as secondary evidence of the originals of which I am satisfied, they are properly verified Photostat copies.

D.V. FATIAKI
(JUDGE)

28^th June, 1989

HAC0001.88S